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
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
Sixth Circuit Opinion
Supreme Court Docket
Petition for Certiorari (filed by Liberty Counsel)
ACLU Brief in Opp. To Certiorari
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.
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
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
Depictions of the Ten
Commandments are a common feature of public life in the
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
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.’
Attorneys: Philip B. Onderdonk Jr.
of American Legion; Kelly Shackelford and Hiram S. Sasser,
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
American Liberties Institute
Ashbrook Ctr. For Public Affirs
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
Conservative Legal Defense and Ed. Fund et. al.
Attorneys: Herbert W. Titus, William J. Olson all of William J. Olson, P.C.
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
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
Phyllis Schlafly of Eagle Forum,
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
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
Foundation for Moral Law
Attorneys: Roy S. Moore, Benjamin D. Dupre, Gregory M. Jones all of Foundation for Moral Law
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
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.
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
Attorneys: John W. Whitehead, Rita M. Dunaway, Douglas R. McKusick all of
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.
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
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
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.
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 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.
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]
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
displays here do have the effect of endorsing a religion, while not respecting
others. While the designers of the
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
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
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 (
At the very seat of
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
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.
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
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
Amici in Support of the Commandments Displays
Attorneys: Len L. Munsil, Cathi W. Herrod, Peter A. Gentala all of Center for Arizona Policy
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,
“grateful to Almighty God for [their] liberties.”
Fifth Circuit was right to uphold the constitutionality of the Texas Ten
Commandments monument because
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
Petitioner’s challenge to the
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
“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
must be replaced] This Court’s
Establishment Clause jurisprudence is “in hopeless disarray.” Rosenberger v.
Rector and Visitors of Univ. of Va., 515
American Humanists et.
Eagle Forum Education and Legal Defense Fund
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
Foundation for Moral Law
Attorneys: Roy S. Moore, Benjamin Dupre, Gregory M. Jones all of Foundation for Moral Law
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
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
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 (
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.
John W. Whitehead, Dougls R. McKusick
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
Attorney: Edward L. White
2005 WL 226922 (Appellate Brief) (
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
Attorney: Robert J. Bruno
2004 WL 2931364 (
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
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
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.
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
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
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
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
Freedom from Religion
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
The State of
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.
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
Amici that Take No Position on the Propriety of the Displays