Ten Commandments in American History: Every Commandment Impacted Every American Colony and 12 Colonies Adopted the Entire Decalogue into Their Laws



Historical Background Information by William Federer



Photo Essay: God in the Temples of Government

Human Events, Carrie Devorah

11.23.2003 - Part 1: http://www.humaneventsonline.com/article.php?id=2441

12.19.2003-  Part 2: http://www.humaneventsonline.com/article.php?id=2664





Findlaw Information Page with Document Links



First Amendment Center Information Page



Sixth Circuit Opinion



Supreme Court Docket


Petition for Certiorari (filed by Liberty Counsel)


ACLU Brief in Opp. To Certiorari



Petitioner’s Brief

Attorneys: Mathew D. Staver, Erik W. Stanley, Anita L. Staver, Rena M. Lindevaldsen, Bruce W. Green Mary E. McAlister, Lindsey F. Martin, Johnnie L. Turn all of Liberty Counsel



The Foundations Display passes every test developed by this Court. Under Lemon v. Kurtzman, 403 U.S. 602 (1971), the secular purpose is to educate the public about some of the “documents that played a significant role in the foundations of our system of law and government.” The mere presence of the Ten Commandments does not transform the otherwise secular Display into a religious one. The Sixth Circuit erroneously demanded some “demonstrated analytical or historical connection” with the other documents. That the Display is about law and that the Decalogue is law and has influenced American law should be sufficient. The Display is not meant to debate American history, nor is its purpose to present a treatise on law. Petitioners’ purpose is to educate about law, and that purpose is secular, not religious. Although the Sixth Circuit agreed that the FoundationsDisplay does not emphasize the Ten Commandments, it faulted the placement of them with legal documents. The court below erred by finding the Commandments to be an “active symbol of religion” that converts a secular display into a religious one. The majority also erred by holding that the prior displays tainted the Foundations Display. If the prior displays were devoid of a secular purpose, which Petitioners deny, the Foundations Display clearly is not. If government missteps on an Establishment land mine, it should be allowed to correct itself. The Foundations Display is most relevant to purpose. The Display is about law, not religion. No reasonable observer would consider the Foundations Display an endorsement of religion. Such an observer, aware of the historical influence of the Ten Commandments, would view them in context with the other legal documents. Being only one of eleven documents in a display on law and viewed in light of history and ubiquity, no objective observer would conclude the Display favors or establishes religion.


The Display passes the test in Marsh v Chambers, 463 U.S. 783 (1983). Government use of and reliance upon the Ten Commandments runs from Colonial times to the present. They have influenced the development of American law. The drafters of the First Amendment would not have conceived that the Establishment Clause would require the removal of a passive display like the one before this Court. The Display also passes the coercion test in Lee v.Weisman, 505 U.S. 577 (1992). Viewing a passive Display that includes the Decalogue is not an overt religious exercise. Onlookers are primarily adults who may avert their glance and freely pass. Passersby are not compelled to participate in a religious exercise, nor are they coerced to view the Display.


Although the Display passes the Lemon test, this Court should overrule or modify the test. At a minimum, the purpose prong should be abandoned. It focuses too much on subjective motives when the focus should be on the objective effects of an activity. This Court should adopt a new test for government acknowledgments of religion. Justice O’Connor’s proposed test in Elk Grove Unified School District v. Newdow, 124 S. Ct. 2301, 2322 (O’Connor, J., concurring), is a starting point. Each factor should be carefully considered to avert another Lemon. “History and ubiquity” are important factors to include. The “absence of worship or prayer” factor may be difficult to apply because dividing speech from worship is fraught with problems. The “nonsectarian consideration” is workable so long as context is considered, as in the creche and menorah cases. Caution must be exercised so that the “minimal religious content” factor does not lead to word counts. Perhaps the test should include some element of coercion, being understood as compulsion. At any rate, the Display passes every test, including all aspects of Justice O’Connor’s proposed test. Whatever the test, it should respect our religious heritage by distinguishing between real establishments and permissible acknowledgments of religion.



Amici in Support of the Commandments Displays

Alabama, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Ohio, Pennsylvania, Souther Caroline, Texas, Utah, Virginia, and Wyoming

Attorneys: Troy King, AG of Ala.; Kevin S. Newsom, Solicitor General of Ala.; Charles B. Campbel, Asst. AG of Ala. et. al.



Depictions of the Ten Commandments are a common feature of public life in the United States. Such displays—whether exhibited as symbols, monuments, plaques, or documents—date back at least to the 1870s, and there are today (literally) thousands of them across the country. The displays are particularly common at seats of government, and are perhaps most often found in and around courthouses. Indeed, this Court’s own build-ing contains more than a dozen depictions of the Commandments. The history and ubiquity of displays on public property involving religious themes in general, and the Ten Commandments in particular, merely confirm this Court’s observation that “[t]here is an unbroken history”—here, going back some 130 years—“of official acknowledgment by all three branches of government of the role of religion in American life.”  . . .  [The displays satisfy all existing Supreme Court tests. The Lemon test has engendered confusion in the lower courts and the test is internally inconsistent with itself. It should be abandoned and replaced with the coercion test articulated by Justice Kennedy in Allegheny.  Madison and Jefferson are cited extensively in support of the coercion test.]

Madison, Mason, and Jefferson indicate that the principal evil targeted by the Establishment and Free Exercise Clauses was government coercion through actual (i.e., physical or legal) compulsion in religious matters. That is, the kind of coercion the Framers contemplated apparently involved actions that would truly “compel” religious belief, practice, or financial support with “force,” “violence,” or “law.” See also Lee, 505 U.S. at 640 (Scalia, J., dissenting) (“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.”) . . . Second, the amici States do not contend that the coercion test is a “one-size-fits-all” solution to Establishment Clause problems. The Court has already eschewed “any single test or criterion in this sensitive area.


American Ctr. for Law & Justice

Attorneys: Jay Sekulow, Stuart J. Roth, Francis J. Manion, Walter M. Weber, and Geoffrey R. Surtees all of ACLJ




The history and ubiquity of governmental and other secular recognition of the Decalogue Supports the inclusion of the Ten Commandments in a Display of Foundations of American Law. [The brief then provides lengthy citations to judicial and executive branches supporting this contention coupled with the pervasiveness of the Commandments on public property and in the culture at large.] “Given the historically undeniable secular impact of the Decalogue on the development of our legal system, as well as its culturally pervasive use as a symbol of secular law, the Sixth Circuit’s virtual presumption of invalid religious purpose and implicit requirement that governments go to extraordinary lengths to “secularize” displays of the Decalogue is unwarranted by the Establishment Clause.’



American Legion

Attorneys: Philip B. Onderdonk Jr. of American Legion; Kelly Shackelford and Hiram S. Sasser, III of Liberty Legal Institute



This case presents an opportunity for this Court to protect public displays of religious imagery and preserve our Nation’s veterans memorials. Religious imagery has permeated American military culture throughout the history of the United States. Through veterans memorials and the religious imagery that marks so many memorials, the people of this Nation find solace and meaning for the sacrifice of our sons and daughters and are inspired by an eternal hope for the future of this country. Lower federal courts have misused the endorsement test to destroy veterans memorials bearing religious imagery. Hecklers have successfully misused the endorsement test to remove any religious reference in the public square, doing great damage to this Nation’s veterans memorials. This Court should protect public acknowledgement of religion and preserve our Nation’s veterans memorials, which strive to honor the sacrifice of our sons and daughters and give meaning for such sacrifice and an eternal hope for generations to come.” . . . While the intellectual elite may lay siege to such notions with the pen from the comfortable confines of the Ivory Tower, it has been the sacrifice of countless Americans willing to die for something greater than themselves that has secured that very freedom for their critics.



American Liberties Institute



Ashbrook Ctr. For Public Affirs


Becket Fund

Attorneys: Anthony R. Picarello, Jr., Derek L. Gaubatz, Jared N. Leland all of Becket Fund for Religious Liberty



The purpose of this brief is to illustrate by examples the longevity, ubiquity, and diversity of the American tradition of allowing—rather than selectively excising—religious elements as part of government cultural expression. This widespread pattern of government behavior does not represent the “endorsement” of any one religion or religion generally. Instead, it is simply the ongoing recognition and acknowledgement of the important role of America’s many religions in its public life—activities that this Court routinely permits under the Establishment Clause. In order to respect the flourishing of religious diversity that this government expression reflects, courts should review it with deference. Specifically, the reasonable observer should be deemed familiar with the broader phenomenon that ordinary cultural expression by government will frequently contain religious elements in a religiously diverse society.  [cites numerous examples of religion in American government]


Conservative Legal Defense and Ed. Fund et. al.

Attorneys: Herbert W. Titus, William J. Olson all of William J. Olson, P.C.




The central question presented in this case is whether this Court’s test laid down in Lemon v. Kurtzman, 403 U.S. 602 (1971), and any variant thereof, applying the Establishment Clause of the First Amendment to the several states should be overruled. For years, the Lemon test has been roundly criticized as unworkable3, but that is only a secondary reason to reject it. Rather, this Court should overrule Lemon because it rests upon the wholly illegitimate premise that the Establishment Clause applies to the States through incorporation into the Fourteenth Amendment’s Due Process Clause. This Court has not entertained any serious challenge to that doctrine since Duncan v. Louisiana, 391 U.S. 145 (1968), but, if a constitutional doctrine proves to be erroneous, its longevity is no reason to keep it. See C. Rice, “The Bill of Rights and the Doctrine of Incorporation,” The Bill of Rights 11 (E. Hickok, Jr., ed., Univ. Press of Va.: 1991). Each justice of this Court has a continuing, sworn obligation to ensure that the Court’s doctrines are consistent with the text of the Constitution . . . Indeed, this Court’s decisions, which have transmuted the original historical purpose of the Establishment Clause as a shield of protection of the states from the exercise of federal power4 into a sword of supremacy of federal power over the states — contrary to the powers reserved to the States and the people by the Tenth Amendment — should be stricken as an illegitimate exercise of political will by this Court . . .


To correct this error, this Court should return to the original meaning of the Fourteenth Amendment’s Due Process and Privileges and Immunities Clauses, as set forth in this Court’s opinions in the Slaughter-House Cases, 83 U.S. 36 (1873), and Davidson v. Board of Administrators of the City of New Orleans, 96 U.S. 97 (1878), neither of which has ever been expressly overruled. Both preserve the Constitution’s federalist structure, recognizing that the state and local citizenry retain the constitutional authority to make their own decisions concerning matters such as displays of the Law of God. Finally, to continue to usurp power over the States and their political subdivisions by misapplying the Establishment Clause — as this Court has done since Everson v. Board of Education, 330 U.S. 1 (1947) — while requiring all other branches of the federal and state governments to support this Court’s decisions as the supreme law of the land — as this Court has done since Cooper v. Aaron, 358 U.S. 1, 18-19 (1958) — would thrust a dagger into the very heart of the rule of law. See R. Berger,  Government by Judiciary 289 (Harvard Press: 1977). In truth, any elevation of this Court above the Constitution undermines the oaths of all federal judges before God to “support this Constitution” as the “Supreme Law of the Land,” as prescribed by 28 U.S.C. Section 453, and as further reflected in this Court’s practice to open its public sessions with the prayer, “God save this honorable court.” A court which disregards its oath and its prayer risks judgment of the “rectitude of [its] intentions” by the “Supreme Judge of the world” and deprivation of the “Protection of Divine Providence” on the nation, as invoked by America’s founders in the Declaration of Independence (para. 31). Sources of Our Liberties at 321.


Eagle Forum Education & Legal Defense Fund

Attorneys: Phyllis Schlafly of Eagle Forum, Douglas G. Smith of Kirkland and Ellis, LLP



The Lemon test has proven unworkable and restricts religious liberty in a manner that is inconsistent with the original meaning of the First Amendment. The Establishment Clause was originally viewed as a federalism provision that protected state establishments from interference by the federal government. The Framers wisely recognized that the individual states should remain free to adopt diverse practices with respect to religion without the threat of an established church at the national level. The Lemon test is inconsistent with this original understanding. It interjects the federal government into state decisionmaking in a manner that restricts religious liberty. Even under the Lemon test, however, the Ten Commandments displays at issue here are constitutional.This Court has recognized in decisions such as Marsh v. Chambers that governmental action that has both religious and historical significance does not violate the Establishment Clause. Indeed, even in Stone v. Graham where the Court held that a particular Ten Commandments display ran afoul of the establishment prohibition, it further held that the Ten Commandments could be displayed as lo ng as their historicalsignificance was conveyed along with their religious meaning. The displays at issue here conveyed both a historical and religious meaning. Accordingly, they do not violate the Establishment Clause under the test set out in Lemon.


The lower court’s ruling to the contrary was based on a misapplication of this Court’s precedents. The lower court concluded that the displays violated the Establishment Clause only after engaging in a highly speculative analysis concerning the subjective intentions of the proponents of the displays. The test under Lemon, however, is an objective one, focusing on whether a “reasonable observer” would understand the display to constitute an “establishment” or “endorsement” of a particular religion. Should the Court retain the Lemon test despite its many flaws and lack of historical foundation, it should clarify that the constitutional test under Lemon is an objective one



Faith and Action et. al.

Attorney: Bernard P. Reese, Jr. of Reese and Reese



[From the Brief’s conclusion]

With adequate citation of authority: (1) Declare the Declaration to contain this nation’s philosophy of government; that it is part of our documents of origin and is consequently enshrined in our Constitution; (2) Redefine the “establishment clause” that it is subordinate to the provisions of the Declaration of Independence; (3) That under such redefinition, a display of the Ten Commandments is permitted and such other activities as are consistent with the philosophy of government contained in the Declaration of Independence; (4) Establish clear rules of evidence to be followed in the trial court which would determine on motion by the trial judge whether the plaintiff had standing to bring the action, taking into consideration who was financing the litigation, whether there was actual injury taking place, and permit depositions for that purpose; (5) That appropriate expression of the Philosophy of Government contained in the Declaration of Independence cannot be restrained otherwise it constitutes a violation of the “free exercise clause” of the First Amendment. As such it is entitled to public expression; (6) Provide a clear definition of religion as opposed to a belief in God or his moral laws and predicate evidentiary instructions on that basis; (7) Establish instructions on who was responsible to carry the burden of proof, when that burden shifts, and the level of proof required whether it be by preponderance of the evidence, or beyond a reasonable doubt.


Family Research Council and Focus on the Family

Attorneys: Profs. Gerard Bradley and Robert George



The Sixth Circuit’s analysis of both the displays and the pertinent law was grievously mistaken. Contrary to what that court held, many Supreme Court precedents confirm what historians of America have long maintained: our constitutional and legal traditions cannot be accurately understood without recognizing their roots in a theistic worldview. But not just any theistic tradition; as this Court has said repeatedly, our beliefs in human rights and limited government, along with other fundamental convictions, have deep roots in the ethical monotheism of the Bible. The Ten Commandments are the central expression of this worldview. The document displays challenged below recognize what this Court’s cases have long taught. The displays fairly and impartially indicate that biblical ethical monotheism underlies American constitutional and legal traditions.The displays studiously avoid advancing, endorsing, or otherwise vouching for the Bible as truly being the Word of God, or the religions based upon it. The displays therefore comport with all this Court’s relevant precedents, as they were articulated most perspicaciously by Justice Powell in the case of Edwards v. Aguillard, 482 U.S. 578, 606-07 (1987) (Powell, J., concurring).



Foundation for Moral Law

Attorneys: Roy S. Moore, Benjamin D. Dupre, Gregory M. Jones all of Foundation for Moral Law



The display of the Ten Commandments on public property does not violate the Establishment Clause of the First Amendment because such displays do not implicate the text thereof, particularly as it was historically defined by common understanding at the time of the Amendment’s adoption. The Ten Commandments displays (“the displays”) erected by McCreary and Pulaski counties (“the Counties”) are therefore constitutionally unobjectionable. It is the responsibility of this Court and any court exercising judicial authority under the United States Constitution to do so based on the text of the document from which that authority is derived. 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 displays at issue, it becomes evident that the displays are not a law, they do not dictate religion, and they do not represent a form of an establishment. Thus, a textual analysis demonstrates that the displays of the Ten Commandments in the courthouses of the Kentucky counties are not prohibited by the Establishment Clause.



Judicial Watch

Attorneys: Paul J. Orfanedes and Meredith L. Cavallo of Judicial Watch



One of the biggest sources of confusion in contemporary constitutional jurisprudence is the Establishment Clause - specifically, the proper relationship between the Establishment Clause and the protection of individual rights. Does the Establishment Clause directly protect individual rights in the same way the Free Expression Clause does? Or does the Establishment Clause protect individual religious expressions indirectly by prohibiting the creation of a national religion and prohibiting discrimination among various religious groups? These questions have become increasingly difficult to answer due to the confusion in Establishment Clause precedent. The lack of any consistent Establishment Clause principles has led to such artificial “tests” as the Lemon test, which has only increased the confusion surrounding the application of the Establishment Clause. The Lemon test was promulgated as the end-all and be-all of Establishment Clause jurisprudence, but was almost immediately diminished or ignored by this Court. Nonetheless, it has become the standard that the lower courts feel obligated to follow. This case presents the Court with the opportunity not only to clarify the proper application of the Establishment Clause, but also to overrule the Lemon test. However, even if the Court determines that a clarification of the Establishment Clause is unnecessary and applies the Lemon test to this case, the Circuit Court clearly erred in affirming the permanent injunction entered against Petitioners because none of the displays at issue violate the Establishment Clause.


Minnesota, Missouri, Illinois, Iowa, New Mexico, Oklahoma, and Wisconsin

Attorneys: Mike Hatch, AG of MN; John S. Garry, Asst. AG of MN et. al.



A depiction of the Ten Commandments in a courthouse setting does not violate the Establishment Clause when it is part of a display of other historical symbols of the legal system. Such a display does not violate the Establishment Clause because it satisfies each of the three prongs of the prevailing test set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). There is a secular purpose for such a display; a reasonable observer would not understand such a display to be a government endorsement of the religious aspect of the Ten Commandments; and such a display does not foster excessive governmental entanglement with religion. The contrary decision of the Sixth Circuit rests on a misapplication of this Court’s precedents under the Lemon test. The Court should reject the Sixth Circuit’s faulty reasoning and remove the doubt it creates for the continuation of displays such as that in the courtroom of the Minnesota Supreme Court.



Pacific Justice Institute – not found


Rutherford Institute

Attorneys: John W. Whitehead,  Rita M. Dunaway, Douglas R. McKusick all of Rutherford



The historical document display that the Sixth Circuit found to violate the First Amendment’s Establishment Clause due to the inclusion of the Ten Commandments is consistent with displays that this Court has upheld against Establishment Clause challenges. The Sixth Circuit’s opinion includes an unwarranted intrusion into the logic behind local government officials’ choice to include the Ten Commandments in the display along with numerous secular documents.


However, the court’s opinion is indicative of a much greater problem: a modern Establishment Clause jurisprudence that is unworkable and yields bad results. Amicus respectfully submits that this Court not only should reverse the decision below and uphold the particular display at issue here but, more importantly, should rework its Establishment Clause analysis in fundamental respects. Amicus maintains that the Court should renounce the Establishment Clause test announced in Lemon v. Kurtzman, 403 U.S. 602 (1971), abandon its practice of incorporating the Establishment Clause into the Fourteenth Amendment for application to the states, and return to a historically accurate and logically sound application of the Clause to the federal government.



Thomas More Law Ctr.


United States

Attorneys: Paul D. Clement, Acting Solicitor General; Peter D. Keisler, Asst. AG; Gregory G. Katsas Deputy Asst. AG; Patricia A. Millett, Asst. to the Solicitor General; Robert M. Loeb and Lowell v. Sturgill Jr., Dept. of Justice



This Court has twice considered and twice upheld the inclusion of a religious symbol in a governmental display commemorating a variety of influences on the Nation’s history and culture. Petitioners’ inclusion of the Ten Commandments in a display that acknowledges multifarious influences on the development of American law should likewise be upheld. Justices of this Court, decisions of lower courts, and the writings of countless historians and academics have long recognized the significant influence that the Ten Commandments have had on the development of American law. Acknowledging that influence as part of a broader display memorializing historic contributions to American law and government serves the valid secular purpose and secular effect of educating persons about the Nation’s history and celebrating its heritage. Indeed, it is commonplace for courthouses and capitol buildings to include commemorative displays of legal, political, and cultural history, and that background tradition informs how displays like petitioners are reasonably perceived. Moreover, acknowledging that a document with religious significance also played an important role in the development of secular law in no way undermines or dilutes the religious significance of that document. As this Court has repeatedly recognized, the political and legal history of the United States is infused with religious influences, and the Establishment Clause does not require government to ignore or minimize that reality. Governmental commemorations of history, heritage, and culture properly need not exclude references to religious influences. To hold, as the court of appeals did here, that any acknowledgment of religious history must be accompanied by elaborate disclaimers or explanations bespeaks a fundamental hostility to or suspicion of religion that has no place in Establishment

Clause jurisprudence.


Finally, the court of appeals’ conclusion that petitioners’ prior displays and the litigation surrounding them indelibly tainted the current display is fundamentally flawed. First, the unconstitutionality of the initial display is not obvious and, in any event, the display at issue bears little resemblance to the aspects of the prior displays that troubled respondents. Second, governmental officials are presumed to adhere prospectively to their constitutional duties and, accordingly, courts should be reluctant to equate past conduct with a present invidious purpose to defy constitutional limits. The Establishment Clause inquiry should turn upon the objective purpose served by the display as a whole, not subjective motivation. While the always elusive hunt for subjective purposes does much to promote litigation, it does little to promote Establishment Clause values in the context of passive displays in courthouses.



Wallbuilders, Inc.

Attorneys: Barry C. Hodge and Steven W. Fitschen of The National Legal Foundation



The Ten Commandments have both religious and historical significance. This brief will explain how each one of the Ten Commandments has historically impacted American law and jurisprudence and thus, why the Ten Commandments should be permitted to be displayed with other political and patriotic documents.

In this regard, this Brief will greatly expand upon the information contained in Petitioner’s Brief.



Amici in Opposition to the Commandments Displays


American Atheists


American Humanist Assoc. et. al.

Attorneys: Jacob B. Rolls and Elizabeth L. Hileman of American Humanists Foundation



The Lemon test is a sensible reflection of the values embodied in the Establishment Clause and remains an eminently workable and dynamic model to assess the constitutionality of government activity. Just as the Establishment Clause itself embodies multiple values, so must the tests that this Court employs to decide acceptable Constitutional parameters. Because of our unique national history, it is now widely accepted that our government cannot legislate in a manner that endorses one religion over others, or religion generally. It is equally clear that our system of government is not designed to undertake actions, the principle purpose or effect of which is to advance religion, and that our government must not allow itself to become excessively entangled with religion or religious matters. As difficult as it may be to navigate the challenges presented when our collective civic and religious values conflict, it is imperative that we respect the constitutional values that give meaning to the Establishment Clause. Those values are adequately represented in the three-pronged Lemon test as it has evolved and been refined through this Court’s decisions.


The Ten Commandment displays at issue in McCreary and Van Orden violate the Establishment Clause by failing to satisfy one or both of the religious purpose and effects tests set forth in Lemon. The “plainly religious” nature of the Ten Commandments justifiably elevates courts’ skepticism of proffered legislative purposes for posting them, and this Court is also correct to examine the context, content, and history of Ten Commandment displays in order to decipher true legislative purposes. The nature of the analysis required under the Establishment Clause mandates this comprehensive examination, and early indications of religious or secular purposes clearly and importantly assist the courts in determining whether particular legislative actions are wholly, partly or predominantly secular or religious. The purported purposes for the displays at issue in McCreary, while perhaps appearing secular in their final version, are nevertheless predominantly religious. In McCreary this is exacerbated by the clear religious purpose of the original and second display efforts, and by the superficial and misguided attempt to characterize the historical contributions of the Ten Commandments to our nation’s legal system. In Van Orden the purported purpose cannot be characterized as “bona fide, legitimate, and not a mere sham” because of the plainly religious nature of the Ten Commandments monument and the absence of a logical connection between the monument’s display and the purported purpose.


The displays at issue in McCreary and Van Orden violate the “effects” prong of the Lemon test. When employing the “objective observer” standard, it is clear that the primary effect of the displays is to advance religion, specifically Christianity and Judiasm. It is also clear that surrounding the Ten Commandments with secular objects communicates government endorsement of religion, especially when, as is the case here, there is no effort to explain the historical, legal or cultural relevance of the Ten

Commandments to the secular objects. The display of any version 2 of the Decalogue on public property under the circumstances presented in these cases has the clearly discernable effect of communicating government endorsement of religion (specifically monotheism). These displays also violate the “coercion” test that this Court employs in Establishment cases.



Anti-Defamation League

Attorneys: Jeffrey R. Babbin, Aaron S. Bayer, Kenneth D. Heath all of Wiggin and Dana LLP



[The Decalogue is not part of a generic “Judeo-Christian Tradition” and historically has been a significant source of tension between these Two faiths.]

[Summary of the Summary]


“This brief ’s discussion of religious sources and scholarship underscores how the Ten Commandments are a vital expression of religious identity and symbolism – albeit an expression that is far from uniform or free of doctrinal controversy. As we show through historical events and the works of religious scholars over the last two millennia, the Decalogue is not symbolic of a uniform Judeo-Christian legal tradition, but is in fact at the center of historical differences between two different legal traditions. Thus, the notion of the Judeo- Christian tradition – which itself was a mid-twentieth century innovation by American Protestant thinkers – does not provide a theological base on which to build a legal justification for government’s display of the Decalogue. For Jews, the Ten Commandments are part of God’s unique covenant with the people of Israel as God’s chosen people, and one part of a wider set of binding, biblical laws of divine origin. For Christians, the Ten Commandments are fundamental principles of natural law that, as restated by Jesus, apply to all humanity. By viewing the Decalogue in this manner, divorced from its original context at Mount Sinai, early Christianity rejected the remainder of Jewish law – the Law of Moses in the first five books of the Bible (the Torah or Pentateuch) – as outmoded rules that do not apply to the new people of God, the Christians. Accordingly, while the Ten Commandments have important religious meaning for Christians, they also symbolize Christianity’s rejection of other principles of Jewish law. The Ten Commandments historically have been used as a symbol of these religious differences . . .


The displays here do have the effect of endorsing a religion, while not respecting others. While the designers of the Texas monument say they sought to erect a “nonsectarian” monument to God, they could do so only by endorsing Judaism or Christianity and ignoring all other religions. By placing Jewish symbolism alongside symbols for Jesus as the Messiah, and elevating a Christian translation of the Ten Commandments for special veneration apart from the rest of Mosaic law, the monument endorses a Christian religious view. The Kentucky courthouse displays make no attempt to be inclusive, instead using a Protestant translation of the Decalogue, omitting entirely the text that is most fundamental to the Jewish understanding of the Ten Commandments, i.e., the opening reference to the people of Israel (“I the Lord am your God, who brought you out of the land of Egypt, the house of bondage . . . .”).”



Atheist Law Ctr.

Attorneys: Pamela L. Sumners, Larry Darby of Atheist Law Ctr.


This brief is similar to the one filed in Van Orden. See Van Orden summary below.


Baptist Joint Committee


Council for Secular Humanism and International Academy of Humanism


Legal Historians and Law Scholars


Amici that Take No Position on the Propriety of the Displays


National School Boards Assoc.

Attorneys: Julie Underwood of National School Boards Assoc.



The conflict and confusion in the courts as to which Establishment Clause analysis to apply and how to apply it have caused great chaos and confusion for communities, public school administrators, and board members when questions regarding the role of religion in public schools arise. Questions regarding the role of religion in public schools are pervasive and frequent across the nation. E.g., How much religious music can be included in a school concert? How may schools recognize religious holidays? Can students distribute religious flyers in school? How far can teachers go in professing their personal religious beliefs within the school? Every day public school administrators and board members across the nation face these questions. Every day their decisions are challenged by interest groups who choose to use the schools as their forum to clarify the boundaries of religious rights and individual liberties. By setting forth a clear and consistent analysis for use in Establishment Clause cases, this Court would help minimize these disputes and the ensuing litigation that plague our nation’s schools.


Amici urge this Court to adopt the “endorsement analysis” as the overarching framework for Establishment Clause cases. Consistent use of the endorsement analysis would assist public school administrators and board members since it retains the concepts of purpose and effect, concepts clearly derived from the Lemon test. However, it provides some much needed clarifications. It focuses on the actual and perceived purpose and effect of the activity in question. Secondly, it provides flexibility by using the “reasonable observer” standard. Finally, it recognizes the concept that no individuals should feel they are not full members of our nation due to their religious beliefs, which is critically important to the relationship between students and the public schools. This Court’s clear adoption of this analysis would help public schools handle Establishment Clause issues in a way that respects the relationship between school and student and recognizes the “dizzying religious heterogeneity” of our nation. Newdow, 124 S.Ct. at 2321. Currently, the intersection of public schools and religious faith is legally and politically fraught with peril. Clarity and consistency are needed to guide public school administrators’ and board members’ decision-making and actions on the appropriate role of religion in the public schools. Clarity and consistency are needed to provide a clear standard against which their decisions and actions can be measured. This would offer credibility to their decisions and actions. Clarity and consistency from this Court could build a consensus within the nation on the appropriate role of religion in our public schools and thereby reduce the disputes and ensuing litigation that encumber our nation’s public schools.



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 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



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




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



[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



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



[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



[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



The 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


“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


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.



[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


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



[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



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 Foundation
Attorneys: James A. Friedman, James D. Peterson all of LaFollette Godfrey & Kahn


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;



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.



Amici that Take No Position on the Propriety of the Displays