Plurality and Breyer Concurrence | Dissent
Oral Arguments: Transcript for Van Orden v. Perry
First Amendment Center Information Page
Findlaw Information Page with Document Links
Fifth Circuit Opinion
Supreme Court Docket
Petition for Certiorari
Brief of Respondents in Response to Petition for Cert.
Petitioner’s Brief – Thomas Van Orden
Attorneys: Erwin Chemerinsky Counsel of Record Duke University School of Law; Mark Rosenbaum; Paul Hoffman of Schonbrun Disimone Seplow Harris & Hoffman; Adam B. Wolf of UCLA School of Law
2004 WL 2911174 (U.S.)
At the very seat of Texas government, between the Texas State Capitol and the Texas Supreme Court, is a large monument quoting a famous passage of religious scripture taken, almost verbatim, from the King James Bible. The Ten Commandments are a crucial symbol to many religions and express an unequivocal religious message: There is a God and God has proclaimed rules for behavior. The monument, shaped in the form of the tablets that some religions believe God gave Moses, has at its top, in large letters: "I AM the LORD thy GOD." The *7 commandments that follow express God's dictates for how people should conduct their religious worship and their personal behavior.
The large Texas Ten Commandments monument violates the Establishment Clause for three separate reasons. First, the government is impermissibly discriminating in favor of some religious denominations and sects. This Court long has held that the government may not favor or prefer one religion over others. See, e.g., Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947) (the Establishment Clause means that no State can "pass laws which aid one religion" or that "prefer one religion over another"). Indeed, this Court has declared that there is an "absolute prohibition" against such favoritism. Abbington School Dist. v. Schempp, 374 U.S. 203, 225 (1963).
But the Texas Ten Commandments monument is exactly this type of impermissible government favoritism: the government is expressing the religious beliefs of some religions. Many prominent religions, such as Buddhism and Hinduism, reject the Ten Commandments' view that there is a single God who dictates rules for behavior. Even among religions that accept the Ten Commandments, there are significant differences in the content of each religion's version of the Ten Commandments. The Texas Ten Commandments monument is virtually identical to the Protestant version. This government favoritism of one religion, over all others, violates the Establishment Clause. Second, the government has no permissible secular purpose for placing the Ten Commandments monument at the seat of Texas state government. This Court repeatedly has held that government actions violate the Establishment *8 Clause if there is not an actual secular purpose. See Edwards v. Aguillard, 482 U.S. 578, 594 (1987) (invalidating a state law requiring teaching of "creation science" because of the lack of a secular purpose); Wallace v. Jaffree, 472 U.S. 38, 56 (1985) (invalidating a state law requiring a moment of "silence" because of the absence of a secular purpose).
The Ten Commandments are a religious symbol and express a religious message. In Stone v. Graham, 449 U.S. 39, 41 (1980) (per curiam), this Court declared unconstitutional a Kentucky law requiring the posting of the Ten Commandments in public schools and expressly rejected the claim that there is a secular purpose, such as commemorating the role of the Ten Commandments as a source of law, that justifies their presence on government property. The Court emphasized the inherently religious content of the Ten Commandments and found that there was no secular reason for their being prominently displayed by the government. Id. at 41-42. Texas placed the Ten Commandments monument on government property for exactly the same impermissible reason: to express its religious message. Third, the Ten Commandments monument has the impermissible effect of symbolically endorsing religion. This Court has stressed that a government action violates the Establishment Clause if it symbolically endorses religion or a particular religion. See, e.g., County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 592 (1989) (invalidating a nativity scene by itself on government property). It is well-settled that "[w]here the government's operation of a public forum has the effect of endorsing religion, even if the governmental actor neither intends nor actively encourages that result, the Establishment Clause *9 is violated." Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753, 777 (1995) (O'Connor, J., concurring in part and concurring in the judgment).
The reasonable observer would surely see the Ten Commandments monument as the government endorsing religion because of its placement, its context, and its content. The placement of the monument, at the very seat of Texas state government, means that "[n]o viewer could reasonably think that it occupies this location without the support and approval of the government." Allegheny County, 492 U.S. at 599-600 (O'Connor, J., concurring in part and concurring in the judgment) (invalidating a nativity scene in a county courthouse). The context of the monument reinforces its endorsement of religion. The monument sits by itself at the corner between the Texas State Capitol and the Texas Supreme Court. It is the only expression of a religious message on the Capitol's grounds. Finally, the content of the monument is overtly religious: a scriptural passage that many religions regard as fundamental, in the shape of religious tablets, and accompanied by unmistakable religious symbols such as Jewish stars and Greek characters representing Christ.
If the State displayed a creche in the manner and at the place where the Ten Commandments monument is located, its action would be unquestionably unconstitutional under this Court's ruling in Allegheny County. 492 U.S. at 621. The Ten Commandments monument at least as clearly violates the Establishment Clause because it is a permanent display that favors particular religions, that lacks any secular purpose, and that conveys the government's endorsement for a profoundly religious message.
Amici in Support of the Commandments Displays
Arizona (on behalf of numerous state officials in the executive and legislative branches)
Attorneys: Len L. Munsil, Cathi W. Herrod, Peter A. Gentala all of Center for Arizona Policy
http://www.alliancealert.org/2005/commandments/vanorden/arizona.pdf This case is an historic opportunity for this Court to reaffirm the ability of states to accommodate and acknowledge religion with public displays. The Texas Ten Commandments monument is a classic example of such permissible government acknowledgment of religion. For its part, Arizona has an unbroken history of acknowledging that religion is important both to its form of government and to its citizens. Arizona’s succinct Preamble to its Constitution declares that the people of Arizona are “grateful to Almighty God for [their] liberties.” Ariz. Const. Preamble. Arizona’s State Seal and State Anthem acknowledge God’s blessing and presence. The decorations, art,statues, and memorials at the State Capitol Complex are filled with references to religion. Acknowledging religion’s important place in culture and society is a practice Arizona continues to the present. The recently erected memorials to Father Albert Braun and slain Arizonan Balbir Singh Sodhi are examples of this continuing practice. The Fifth Circuit was right to uphold the constitutionality of the Texas Ten Commandments monument because Texas has a valid secular purpose for the monument and because the monument is not an impermissible state endorsement of religion. The purpose inquiry has, at times, devolved into a scrupulous investigation for any semblance of religious purpose by the government. In order to avoid inconsistent and unfair results, this Court should reaffirm its purpose prong standards from
Lemon v. Kurtzman and
Lynch v. Donnelly: courts should generally defer to official statements of secular purpose and the government need only present a single secular purpose to pass constitutional muster.
State endorsement is gauged with the objective standard of the reasonable observer. Endorsement analysis is rendered an absurdity if the observer is deemed to possess selective knowledge or attributed a myopic focus on religious monuments to the exclusion of other monuments ofcultural significance. Moreover, no reasonable observer looking at a state capitol grounds filled with monuments would perceive unique state endorsement of a single religious display simply because it is located at the seat of government. In religious display cases, the age of the display in question is often part of the endorsement analysis. Indeed, the age of the Texas Ten Commandments monument negates the possibility that the reasonable observer would perceive it as an endorsement of a particular religion. But the First Amendment was not meant to be a “grandfather clause” for aged monuments. Newer monuments, like Arizona’s monument to Father Albert Braun, erected on the grounds of the Capitol Complex in 2001, do not impermissibly carry the government’s endorsement when they are one of many displays commemorating a diverse culture. Finally, Petitioner’s challenge to the Texas monument smacks of a heckler’s veto and utterly lacks constitutional injury. This Court should decline to read into the Establishment Clause a right to suppress particular manifestations of our culture based on mere personal disagreement. The First Amendment does not confer a right to selectively censor religious monuments.
American Center for Law and Justice Attorneys: Harold Berman of Emory U. School of Law and the following ACLJ staff counsel: Jay Sekulow, Stuart J. Roth, Francis J. Manion, Walter M. Weber, and Geoffrey R. Surtees
http://www.alliancealert.org/2005/commandments/vanorden/aclj.pdf The Fifth Circuit’s observation that the Decalogue has had an “extraordinary influence” on the civil and criminal laws of this country is a bit of an understatement.
Van Orden v. Perry, 351 F. 3d 173, 181 (5th Cir. 2003). In fact, the integral part played by the Decalogue in the legal history of Western Civilization, from the dim mists of Alfred’s time, through the era of Blackstone and the American framers, is made manifest in a multitude of executive and judicial references to the Ten Commandments as a source and symbol of Law, routine popular invocation of them as a paradigm of Rules, and frequent governmental depiction of them in public places, especially places where laws are made and justice administered. All of these things dramatically underscore the correctness of the court below’s conclusion that “a State’s display of the decalogue is a manner that honors its secular strength is not inevitably an impermissible endorsement of its religious message in the eyes of our reasonable observer.”
Van Orden, 351 F. 3d at 182. By including a monument containing a non-sectarian version1 of the Decalogue among numerous other historical monuments and displays on the grounds of its State Capitol, Texas does not violate the Establishment Clause. This Court should affirm the judgment of the court below.
[Interesting excerpt]:
“The Ten Commandments has also played a decisive role in Western legal scholarship. Protestant legal scholars of the 16th century, starting with Martin Luther and Philip Melanchthon, faced with the task of synthesizing for Protestant princes the pre-existing separate systems of canon law, Roman law, royal law, feudal law, and mercantile law, turned to the last six of the Commandments to identify “branches” or “fields” of law. They found the source of constitutional law expressed in the commandment to honor one’s father and mother, which they interpreted as a command to respect higher authority; the source of criminal law in the commandment not to kill; the source of family law in the commandment not to commit adultery; the source of property law in the commandment not to steal; the source of contract law in the commandment not to bear false witness; and the source of the law of delict in the commandment not to covet, that is, not to seek to obtain what belongs to another. These categories which are still preserved in our legal science, cut across the diverse jurisdictions of the earlier period, each of which had been autonomous but which, with the rise of Protestantism, came to be combined under the authority of the monarch. Of particular importance legally was the separation, for the first time, of the category of property from the Roman law category of obligations.8 It is hardly an establishment of religion officially to recognize that the Ten Commandments were understood by our ancestors to be the source of the division of law into branches of constitutional law, criminal law, family law, property law, contract law, and tort law.”
(includes pictoral representations, and lengthy appendix of cases and other resources)
American Family Association Attorneys: Stephen M. Crampton, Brian Fahling, Michael J. DePrimo
http://www.alliancealert.org/2005/commandments/vanorden/afa.pdf [Lemon must be replaced] This Court’s Establishment Clause jurisprudence is “in hopeless disarray.”
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 861 (1995) (Thomas, J., concurring). The Lemon test has resulted in an endless line of confusing and conflicting decisions which serve little or no precedential value and leave both lower courts and citizens alike groping to discern the constitutionality of contemplated governmental action. [The Establishment Clause should not be applied absent legislative action or legal coercion] . . . The text specifically addresses a “law” respecting an establishment of religion. It would therefore be altogether reasonable and appropriate for this Court to restrict the application of the Establishment Clause only to acts of a legislative body, whether state or federal, constituting some sort of “law,” and not to the erection of passive displays such as those here at issue . . . Prior to
Everson v. Bd. of Educ., 330 U.S. 1 (1947), protection against the threat of legal coercion constituted the essence of the Establishment Clause. . . Yet the refusal of the Court to require some coercive effect in challenges brought under the Establishment Clause accounts for much of the proliferation of such cases and the resulting confusion in this area of law.12 Moreover, the absence of a requirement of some harm other than a psychological offense has paved the way for the proverbial “egg-shell” plaintiff, who has lost all respect for any belief system not her own, and assumes an attitude of deep offense by the slightest acknowledgement of any conflicting beliefs.
American Humanists et. al. Becket Fund Eagle Forum Education and Legal Defense Fund Ethics and Public Policy Center Attorneys: Mark A. Perry, Daniel J. Davis, Ryan P. Meyers, Dustin K. Palmer all of Gibson, Dunn, and Crutcher, LLP
http://www.alliancealert.org/2005/commandments/vanorden/eppc.pdf Religious iconography is an integral part of American public architecture . . . The traditional incorporation of the Ten Commandments and similar symbols into America’s public architecture is a reflection and recognition of our cultural heritage and history—a long-standing practice of religious tolerance that acknowledges the cultural role of religious allegory without compelling anyone to adhere to a particular belief system. In the case of the Ten Commandments, for example, this iconography serves to remind us that the most fundamental tenets of Anglo-American law—the basic prohibitions against murder, theft, and the like—have roots that reach back to the dawn of recorded history . . . History has not looked kindly on those who would deny or destroy their heritage—religious or otherwise—and the Court’s decision in this case will be judged in the sharp light of history by generations to come. ” (Brief includes numerous pictoral representations)
Focus on the Family and Family Research Council Attorneys: Benjamin W. Bull, Jordan W. Lorence, Gary S. McCaleb, Jeremy D. Tedesco all of the Alliance Defense Fund
http://www.alliancealert.org/2005/commandments/vanorden/foffrc.pdf [Recites history of the
Everson decision and points out historical errors and assumptions of its view of separation of church and state.] “’The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support
by force of law and threat of penalty.’ . . . This test should replace the
Lemon and endorsement tests in cases involving government acknowledgement of religion and will complement the neutrality principle used in cases involving access by religious groups to government funding and services. It also will reaffirm the judiciary’s role of deciding ‘cases’ and “controversies.” U.S. Const. art. III, § 2.”
Foundation for Moral Law Attorneys: Roy S. Moore, Benjamin Dupre, Gregory M. Jones all of Foundation for Moral Law
http://www.alliancealert.org/2005/commandments/vanorden/morallaw.pdf[The constitutionality of the Texas State Capitol Ten Commandments monument should be decided according to the text of the constitution, not judicially fabricated tests. Judges are sworn to uphold the written constitutional text. The words of the First Amendment have been rejected in favor of
ad hoc judicial gerrymandering. Textual infidelity has papered over America’s history and constitutional government that embraces acknowledgments of God and public expressions of religion. The . . . monument is not unconstitutional because it is not a “law respecting an establishment of religion.” This Court should return to the fixed rule of the constitutional text. Neither the monument, nor the state’s action in relation to the monument, is a “law.” The Texas Capitol monument does not “respect an establishment of religion.” The definition of “religion” The definition of “establishment.”]
A court forsakes its duty when it rules based upon case tests that bear no resemblance to or take the focus away from the text of the constitutional provision at issue.
Amicus urges this Court to return to first principles in this case and once again to embrace the plain and original text of the Constitution to guide its Establishment Clause jurisprudence. The text of the Establishment Clause states that “Congress shall make no
law respecting an
establishment of religion.” U.S. Const. amend. I (emphasis added). When these words are applied to the Ten Commandments display at issue, it becomes evident that the display is not a law, it does not dictate religion, and it does not represent a form of an establishment.
Fraternal Order of Eagles Attorneys: George A. Miller Advisor to the Fraternal Order of Eagles, Kelly Shackelford, Hiram Sasser III, and Jonathan M. Saenz all of Liberty Legal Institute
http://www.alliancealert.org/2005/commandments/vanorden/eagles.pdfThe Fraternal Order of Eagles is a social justice organization that has dedicated itself to the establishment of social safety nets such as Social Security and Medicare, helping to find the cure for diseases that plague mankind and develop within the American youth a sense of selfless service for the community. The ten commandments monument at issue in this case is a part of an effort by the Eagles to educate the youth about an historical root of American law and a basic foundation of living life in service of others above self. The context of this particular monument is especially appealing to this purpose because it sits in an area of the capitol grounds that feels like a virtual museum with various other plaques and monuments, some bearing religious inscriptions and imagery. The ten commandments are part of the secular history of our nation. They are a reflection of an historical root of American law and indeed serve as a reminder that our law is not a modern invention but rather a distant descendant from an earlier time when laws based on universally accepted standards of behavior first began. Our constitutional jurisprudence does not require us to erase the religious content from our historical monuments. Such a brooding hostility is not the law. The intentional exclusion of religion from the public square does not send a neutral message. Instead, such intentional exclusion sends a harmful message to the public that it is improper for us to publicly acknowledge any parts of our history and culture with religious content. A state should be free to acknowledge all of its history. The Establishment Clause was never intended to be used to censor our religious history and culture. The Fraternal Order of Eagles simply seeks to preserve our cultural and legal heritage for future generations to grow in their respect for the law and for each other.
Indiana, Alabama, Arizona, Arkansas, Florida, Idaho, Kansas, Kentucky, Louisiana, Mississippi, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, and Wyoming
2004 WL 2825466 (U.S.)
Throughout the United States, state and local governments have incorporated into their buildings, grounds and parks various displays, monuments, statues, paintings, and other artistic expressions that have both religious and secular meaning. These displays exist as a part of an overall education of the foundations of our governments and culture. Such displays are not intended to declare official religious doctrine, nor is anyone likely to mistake them for such. Our republic has a rich tradition of displaying representations of our religious heritage. Such displays are everywhere. Surely, no reasonable person could say that the cumulative effect of these displays has been to advance religion, to establish a church or religious orthodoxy, or to coerce individuals into espousing particular religious views. There is nothing about Ten Commandments displays, new or old, that threatens a tipping point of official religious sanction or indoctrination.
Using the secular purpose test to evaluate government displays of the Ten Commandments and other symbols of religious heritage has led to inconsistent, frustrating and ultimately inequitable results. Governments having substantially identical displays often see disparate outcomes simply because an official statement or the participation of clergy at a dedication ceremony years or decades earlier are adjudged in hindsight to have conveyed a purpose of advancing religion. It is especially objectionable that the inference of impropriety a court might draw under such circumstances can forever taint future displays in that jurisdiction, regardless of changes in public officials or the development of new secular purposes. The Establishment Clause surely does not require such results, and indeed many problems with the purpose test arise because it lacks a sound connection to Establishment Clause values. The Court should discard the purpose test entirely, and at the very least clarify that an improper purpose at one time does not taint future displays. A better approach for evaluating government displays having both religious and secular meaning is to ask whether the display is actually coercive.
Rutherford Institute Attorneys: John W. Whitehead, Dougls R. McKusick of the Rutherford Institute
http://www.alliancealert.org/2005/commandments/vanorden/rutherford.pdf “However, Petitioner seeks to do away with the endorsement test’s reasonable observer standard and proposes a new “field of vision” test to take its place. Under Petitioner’s proposed “field of vision” test, this Court’s endorsement analysis would focus merely on what a viewer can see, rather than on what a reasonable observer, acquainted with the context and history of the monument and its forum, would know. Petitioner’s proposed test has no basis in case law, and it should be rejected. . . . The historic Ten Commandments monument, which has resided for forty-two years among the other historic monuments on the Capitol grounds, does not constitute a government endorsement of religion. The monument’s context establishes that it is merely one of many commemorations of the history and culture of Texas. The Fifth Circuit’s opinion makes this point clearly, and
Amicus respectfully submits that this Court should affirm the Fifth Circuit’s decision and reject Petitioner’s proposed “field of vision” test, which would “sweep away all government recognition and acknowledgment of the role of religion in the lives of our citizens.”
Thomas More Law Center Attorney: Edward L. White III of Thomas More Law Ctr.
2005 WL 226922 (Appellate Brief) (U.S. Jan 26, 2005)
This case presents this Court with the opportunity to re-evaluate Stone v. Graham, 449 U.S. 39 (1980) (per curiam), a weak precedent, that involved the display of the Ten Commandments in a public school setting. Although Stone is limited to the public school context, lower courts have wrongly considered Stone when deciding cases involving the display of the Ten Commandments in non-public school contexts. This Court should clarify the applicability, if any, of Stone when it comes to deciding cases involving the Ten Commandments in non-public school contexts. . . This Court has never decided a case that involves the display of the Ten Commandments, whether alone or in a broader context, as in the instant case, in a non-public school context.
Amici in Opposition to the Commandments Displays
Anti-Defamation League – Consolidated Brief filed with McCreary American Atheists Attorney: Robert J. Bruno
2004 WL 2931364 (U.S.
Both the Ten Commandments monument, which is prominently displayed alone on the grounds of the Texas state capitol for the purpose of commending the Eagles organization and for the purpose of signifying the role of the Ten Commandments in the enactment, administration, and construction of the laws of Texas, along with its enabling state legislation, violate the prohibition of the Establishment Clause of the First Amendment that "Congress shall make no law respecting an establishment of religion," as applied to the states through the Fourteenth Amendment. No plausible reason justifies the endorsement and promotion of the sacred text of Judaism and Christianity as a way of commending the Eagles organization other than the endorsement of religion in general or the endorsement of a particular set of religious beliefs. As a result, the monument and the legislation lack a valid secular purpose under the first Lemon prong. In addition, the prominent placement of the monument and its lack of relevance to the dedicated purpose of the National Historic Landmark, are sufficiently likely to be perceived by adherents of the Ten Commandments as an endorsement, and by nonadherents as a disapproval, of their individual religious choices. As a result, the monument and legislation violate the second prong of Lemon.
American Jewish Congress http://www.alliancealert.org/2005/commandments/vanorden/ajc.htm 1. The arguments of Respondents depend on the assumption that the Ten Commandments on display at Texas’ Capitol is non-controversial and non-denominational document, whose function is either to honor the Fraternal Order of Eagles or to mark the Commandments’ role as a foundation of American law.
2. The claim that the monument is a tribute to the Eagles is belied by the fact that the monument notes that it was donated by the Eagles to the people of Texas, not the other way around. The claim that the monument celebrates the foundational role of the Commandments is simply false as a matter of history.
3. The court below assumed that it was possible to talk sensibly about the Ten Commandments. It is not. There are multiple versions of the Commandments, multiple translations, and multiple views of whether the Ten Commandments have any special theological significance and what that significance might be.
4. In every case, the monument at issue adopts a view of the Commandments rooted in the Christian tradition, and within that broad tradition, the Protestant tradition: (a) The text of the Commandments is taken from the Protestant King James Bible; (b) The enumeration of Commandments is followed by Protestant Christians. The First Commandment is the ban on other Gods. Almost all Jews, however, count “I am the Lord, etc.” as the First Commandment. Jewish theologians—but not Christian ones—debate the meaning of that Commandment. (c) Catholics treat the ban on graphic images as part of the ban on worshipping idols, interpreting that ban as applying only to images which are worshipped as gods, Protestants and Jews view these as separate commandments. That dispute resonated through the Reformation. It is still manifest in the differences between a Baptist church and a Catholic cathedral, or a synagogue and a Russian Orthodox church. (d) The Sixth (or Fifth) Commandment as translated by Jews bans murder, but Protestants (and Texans) read it as a ban on all killing. That stark difference plays out contemporaneously in debates over capital punishment, abortion and war. (e) The very fact that the Commandments are singled out for display as a “foundation of American law” reflects a Christian emphasis on the unique and lasting import of the Commandments as law, a view wholly alien to Jews. The monument notably omits the particularistic phrase “who has taken you out of Egypt,” a phrase more consistent with a Jewish convenental reading of the Commandments than the universalist one Respondents defend. (f) Moreover, the Commandments are alien to the religious traditions of American Buddhists, Hindus and Native Americans, to say nothing of atheists.
5. On each of these points, the monument reflects Christian, indeed Protestant Christian, understandings. It is thus a generic, non-denominational statement of “civic religion,” but a profoundly sectarian statement.
6. The sectarian statement speaks for itself in the manner of res ipsa loquitor. It is an endorsement of one set of religious beliefs over others. The burden should fall on Respondents to explain that the Commandments are not what they appear to be. There are circumstances where they could make that showing, as in an art museum or a textbook, but they have not done so here.
American Humanist Association - Consolidated Brief filed with McCreary Americans United for Sep. of Church and State, People for the American Way, and National Council of Jewish Women Attorneys: Ayesha Khan, Richard B. Katskee, Alex J. Luchenistser all of Americans U. for Sep. of Church and State; Elliott M. Mincberg and Judith E. Schaeffer of People for the American Way; Ian Heath Gershengorn, William M. Hohen garten, Victoria H. Jueds, Thomas G. Pulham all of Jenner & Block LLP.
http://www.alliancealert.org/2005/commandments/vanorden/AUBrief.pdf [The longevity of a religious display does not render it constitutional. The absence of a previous challenge to a longstanding religious display deserves no weight in the constitutional calculus] That only history, and not longevity, should affect the constitutional analysis is reinforced by the fact that plaintiffs raising Establishment Clause challenges face a substantial risk of disapprobation and even violence in their communities. A religious display may become longstanding simply because individuals are deterred from bringing a challenge by the ostracism and risks to personal safety that such a challenge may entail. The Fifth Circuit below was thus wrong to suggest that the absence of a prior constitutional challenge is evidence that the granite monument of the Ten Commandments conveys no message of endorsement of religion and does not offend the significant interests that the Establishment Clause seeks to advance.
Atheist Law Center Attorneys: Pamela L. Sumners and Larry Darby
http://www.alliancealert.org/2005/commandments/vanorden/atheistslc.htm The Establishment Clause forbids government from telegraphing to nonreligious citizens that they are less than valued members of the political community. When the state chooses to place religious symbols on public property, particularly at the seat of government, its choices have the expected effect of symbolically uniting the governmental and religious messages. The “reasonable observer” standard presently employed to test for government endorsement of religion fails to take account of the evocative power of symbols in government’s hands and fails to appreciate how religious symbols can be used as cudgels against those who do not subscribe to “mainstream” American religions or to any religion at all. It rests on assumptions that undercut Establishment Clause values and on false analogies. The Court should abandon the reasonable observer standard and adopt a strong presumption that displays on public property that symbolically unite government and religion are unconstitutional.
Baptist Joint Committee Attorneys: K. Hollyn Hollman of Baptist Joint Committee and Douglas Laycock
http://www.alliancealert.org/2005/commandments/vanorden/bjcommittee.pdf [This Court can and should provide a more objective definition of "Endorsement" for cases where government displays a sacred text. Government display of a sacred text endorses that text, unless the government visibly and objectively negates that Endorsement. The Courts below relied on evidence that is plainly insufficient to negate Texas's explicit endorsement of the Ten Commandments. The Court can specify the kinds of evidence required to rebut the presumption that government endorses any text that it displays.]
When government displays a sacred text, it must be presumed to endorse that text. This presumption should be rebuttable only by equally prominent evidence at the site of the display that objectively negates the appearance of endorsement. Such a presumption is implicit in this Court's earlier cases; it should be made explicit. The lower courts' failure to insist on clear and objective evidence has led to much litigation over attenuated claims of secular purposes and secular effects for displays that are clearly religious. The result is a persistent pattern of high-profile litigation in which government desacralizes sacred texts, distorting and undermining the text's religious meaning in its effort to demonstrate secular meanings . . . The alleged secular effect of demonstrating the Commandments' important role in the development of American law is not explicitly stated at the site of the display, is not known to the reasonable observer, and depends on a premise that is demonstrably false. The Commandments have not had a significant secular role in the development of American law. Most of the Commandments are not part of American law at all, and those that are part of American law were part of Anglo-Saxon law long before the Anglo-Saxons learned of the Commandments. As a statement of the numerically dominant religious traditions in the country, the Commandments lend moral and religious support to parallel legal provisions. But this is a religious function, not a legal one.
Council for Secular Humanism Attorney: Edward Tabash
http://www.alliancealert.org/2005/commandments/vanorden/cshumanism.pdf No branch of government can “treat people differently based on the God or gods they worship or do not worship.”
Board of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 714 (1994) (O’Connor, J. concurring.) Accordingly, no branch of government should ever be permitted to declare that a series of religious edicts that prescribe the exclusivity of worship owing to the Biblical God are foundational components of the governing legal system. If any government body were to do so, the nonbeliever and religious dissenter would then be treated differently and their government would unconstitutionally communicate to them that they are outsiders and not a part of the official theological matrix that spawned the law of the land. Rather than trying to cobble together such an internally inconsistent theory, the highest fidelity to the Constitution would be maintained by reversing the 5th Circuit and thereby reinforcing the proper constitutional principle that no branch of government can show any favoritism for the believer over the nonbeliever. This entails compelling all branches of government to refrain from officially displaying the totality of the Ten Commandments, including its instructions for worshiping the Biblical God, to the exclusion of any other deity, along with keeping the Sabbath day holy. The Ten Commandments display, at issue here, violates the Establishment Clause because it allows the State of Texas to give the impression that the state views its very legal system as grounded upon religious decrees.
Freedom from Religion FoundationAttorneys: James A. Friedman, James D. Peterson all of LaFollette Godfrey & Kahn
http://www.alliancealert.org/2005/commandments/vanorden/ffreligion.htm The stone monument was a gift to the State from the Fraternal Order of Eagles, who made many such gifts in the 1950s and 1960s as part of its Youth Guidance Program intended to combat juvenile delinquency by providing a code of conduct for young persons. Books, 235 F.3d at 294. The Eagles do not shrink from the religious message of the monuments they gave. After the FFRF objected to the display of the Eagles monument in La Crosse, for example, the secretary of the local chapter of the Eagles wrote to the city that "we believe in the ideas etched in this piece of stone."
Mercier, 305 F. Supp. 2d at 1014.
The State of Texas has participated in the Eagles' Youth Guidance Program by accepting the monument and displaying it on the state capitol grounds. The State itself has thereby unequivocally endorsed the Ten Commandments-including those first four inherently sectarian precepts-as a proper code of conduct for Texas citizens. Judaism and Christianity thus bear the imprimatur of the State of Texas. Despite the fact that Texas citizens are legally free to worship however they choose, only Christians and Jews practice a faith that has been publicly approved by the State. For this reason, the 1961 resolution of the Texas legislature accepting the monument and agreeing to display it on government property is a law respecting the establishment of religion, and it contravenes the First Amendment.
Hindu American Foundation and Others Representing the Interests of Hindus, Buddhists and Jains Attorneys: Suhag A. Shukla, Nikhil N. Joshi of Hindu American Foudnation; Henry C. Dinger, Jeffrey A. Simes, Keith A. Zullow, Daryl L. Wiesen, Aseem V. Mehta, Jessica Jamieson, Jessica S. Parise all of of Goodwin Procter, LLP;
http://www.alliancealert.org/2005/commandments/vanorden/hindu.pdf The maintenance of the Ten Commandments Monument on the grounds of the Texas State Capitol violates the Establishment Clause because the Monument is inherently religious, serves no historic purpose, and does not lose its religious character through juxtaposition with secular images. It depicts the Ten Commandments, a cornerstone of Judeo- Christian theology, in the traditional shape of the “Biblical Stones.” Non-Judeo-Christians, including
Amici, who do not adhere to the religious views that the Ten Commandments either state or symbolize cannot fail to perceive the placement of such a monument on the grounds of the Texas Capitol as an endorsement of Judeo-Christian beliefs over their own. The maintenance of the Monument therefore has the primary effect of advancing the Judeo-Christian beliefs to which a majority of Texans subscribe. In reaching a contrary conclusion, the lower courtscommitted two principal errors. First, they concluded that the Ten Commandments Monument was “non-sectarian” simply because it favored no Judeo-Christian sect or denomination over any other. The courts below completely ignored the effect of the Ten Commandments Monument on non-Judeo-Christia between man and God differ greatly from those enshrined in the Monument and for whom the Monument is clearly and unavoidably “sectarian.” By ignoring the effect of the Monument on non-Judeo-Christians, they disregarded the requirements of this Court’s Establishment Clause jurisprudence.
Second, the lower courts relied heavily on the forty years the Monument stood without challenge on the grounds of the Texas Capitol. The Establishment Clause is a bedrock constitutional limitation on the power of government and a violation of that limitation should not be countenanced simply because no one has complained for over forty years. Many of this Court’s Establishment Clause decisions struck down state sponsored religious practices — mandatory school prayer, for example — that had been observed far longer than forty years. Moreover, the inference drawn by the lower courts that the absence of complaint evidences the inoffensiveness of the Monument overlooks the historically tiny population of non- Judeo-Christians in Texas — a population that has reached significant numbers only in recent years. With the recent increase of religious diversity, in both Texas and the nation as a whole, comes a host of Establishment Clause issues that would never before have come to the fore. The Fifth Circuit’s reliance on the historical absence of challenge during a period of much greater religious homogeneity effectively allowed majoritarianism to trump Establishment Clause requirements.
Amici respectfully submit that the lower courts reached the wrong conclusion here in part because they failed to properly consider the effect of the Ten Commandments Monument on those who do not adhere to Judeo-Christian religions.
Amici urge this Court to rectify that mistake.