McCreary County v. American Civil Liberties Union of Ky. – Oral Argument – March 02, 2005

Media for McCreary County v. American Civil Liberties Union of Ky.

Audio Transcription for Opinion Announcement – June 27, 2005 in McCreary County v. American Civil Liberties Union of Ky.

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John Paul Stevens:

And we will now hear argument in McCreary County against the ACLU.

Mr. Staver?

Mathew D. Staver:

Justice Stevens and may it please the Court.

Before this Court is a setting of law in a courthouse and a display on law that contains the universally recognized symbol of law.

Despite the fact that the deck law occupies only one tenth of this otherwise secular display, the Sixth Circuit struck it down.

The Court focused solely on the religious aspect of the Ten Commandments and that’s aired by ignoring the overall context.

The Ten Commandments is unlike most any other acknowledgment.

It is in a category essentially all by itself.

It is thematic in common places in courthouses while Nativity scenes and menorahs occur occasionally and often gratuitously on public property.

The Ten Commandments occurs quite frequently and has for more than a century in courthouses all over this nation.

It is associated with courthouses for a clear historic reason, because the Ten Commandments has played an influential role in American law and government and our system of law in this country.

The context in this case is clearly important.

Yet the Sixth Circuit–

David H. Souter:

May I ask you there basically to comment on the point that Justice Scalia made in the course of the last argument?

The context, as we know, has changed pretty radically in the course of litigation over this and it started out with just the Ten Commandments alone and then version 2, the Ten Commandments had certain… were surrounded by certain quotations of religious content from other texts.

And finally, as I guess literally is true with a new lawyer and more litigation, we’ve gotten to the present context.

Isn’t the problem that you have to face, as I’ve said before, what Justice Scalia raised before, everybody knows what’s going on.

Everybody knows that the present context is simply litigation dressing and that the object for what is going on is the object that was revealed in the first place.

What is your response to that?

Mathew D. Staver:

–Several.

The display in this case has three different phases.

First it was the stand-alone Ten Commandments.

They were sued.

They could have defended that but they chose instead to switch rather than fight because they wanted to try to comply with this Court’s establishment clause jurisprudence, to try to figure out how to be able to display this particular document.

They stepped, however, on a land mine admittedly with this second display.

David H. Souter:

Well, they created the land mine basically.

I mean–

Mathew D. Staver:

They were trying to do the best that they could, trying to follow this ever bending establishment clause jurisprudence especially in the area of displays.

Remember this was back in 1999.

At that time, there were less than a handful of reported decisions ever in this country on the Ten Commandments.

Mathew D. Staver:

The first was in 1973, Stone was in 1980 and there were a couple of others.

There are only 30 reported cases in the country or so and 23 of those happened from 1999 to the present so they didn’t have really any guidance.

They were trying to follow Lynch and Allegheny as best as they could but these are governmental officials.

They’re not jurists schooled in the law.

And admittedly they made a mistake.

But what they have now is the foundations display and as the District Court recognized, it is fundamentally different than any previous display.

Like this Court’s decision in the Sunday law cases, even though it may have started off for a religious purpose, the Sunday laws were continued to be retained for secular reasons.

In this case–

Anthony M. Kennedy:

Are you saying that the purpose is neutral or that the purpose doesn’t matter?

Mathew D. Staver:

–We’re saying that in this case, the purpose is about the display of law.

We also have an argument later on that this Court should reconsider the purpose prong in generally as it relates to the Lemon test.

David H. Souter:

–Okay, but if we still have a purpose inquiry, what you say of course is true.

The current display includes the display of a lot of legal documents.

But is there any reason for anyone to believe that that display of legal documents or anything else would be there for any other purpose than the display of the Ten Commandments, including the religious, the overtly theistic part of the text of the Ten Commandments?

Mathew D. Staver:

Yes, Your Honor.

The District Court actually recognized that one of the omni intended effects of the history is to educate everyone of the difference between an acknowledgment and an establishment.

And even if they had a religious purpose under the second display, that religious purpose has been buried and has been abandoned.

They voluntarily accepted the–

David H. Souter:

You’re not abandoning the position that you have a right to make this kind of religious display, are you?

Mathew D. Staver:

–No, we’re not.

David H. Souter:

Okay.

Mathew D. Staver:

And that’s why we said that they could have defended the individual first display which was the Ten Commandments alone, in part because it is the uniquely recognized historic symbol of law and is commonplace and thematic in the courthouse.

They could have defended when they were originally sued on that basis alone but instead they chose to modify the display.

And when they modified the display, it had excerpted sections around it.

David H. Souter:

But is there… I guess… I don’t want to tie you up too long but I mean given the history, isn’t it still the case that there is no serious reason to believe that there is any object here other than the display of the Ten Commandments including the overtly theistic text and the rest of this is basically enabling context which does not affect the objective, the objective being the Ten Commandments and the religious text?

Mathew D. Staver:

Your Honor, they must be able to change their misstep, if it was a misstep, that they had.

Otherwise, that past taint would be superimposed on the foundation’s display forever and the question would be–

David H. Souter:

Well, not forever but for now.

This isn’t a case in which they came up with the Ten Commandments display, it got enjoined and 10 years later somebody comes along and says, let’s have a display of important documents in the history of law.

This in fact is a continuous process and it is a continuous process within the context of litigation about the constitutionality of the display.

David H. Souter:

It’s not a… the implication is not that you can never have a different display but that there is no reason to believe that the intent of this display has changed as the context has changed.

What is your response to that?

Mathew D. Staver:

–The intent has certainly broadened in this case and there is clearly no evidence in this record that this foundations display is solely purposed or intended to be a religious display.

In fact, even the respondents of amici that wrote against us said that on the face of this display, it appears secular in nature.

It does.

In fact, the foundations display not only has numerous other documents of which the Ten Commandments is only one tenth of these many other document but it also has a foundations document that says what the purpose is about.

There is only two places that talk about the purpose on the foundations display.

On the document itself, which says it’s a display about some documents that influenced American law and government, and the undisputed testimony that these are documents that reflect documents that have influenced American law and government.

That’s the record before this Court on the foundations display and that is fundamentally different–

Stephen G. Breyer:

Suppose we go back to the first display.

If all that was there was the Ten Commandments, now, in your opinion, was that constitutional?

Mathew D. Staver:

–That is arguably constitutional–

Sandra Day O’Connor:

Do we take it along with the resolution of the counties?

Do we look at everything?

Mathew D. Staver:

–Your Honor, there was no resolution, Justice O’Connor, for the first display.

It just went up.

Stephen G. Breyer:

So just that first display, what was the purpose of that first one?

Mathew D. Staver:

The purpose of that first one is like it is in many courthouses around the country.

Both courthouses have numerous documents of his historical nature along the walls, 284 just in the curia alone.

And in Pulaski, many, many documents, when they celebrated their 200th anniversary in 1999.

So that was one of many documents that’s there and that was a document of the Ten Commandments that was meant to show the historic nature of the Ten Commandments, how it has in fact influenced American law and government in the appropriate setting of a courthouse.

Stephen G. Breyer:

The original one?

Mathew D. Staver:

The original one.

Stephen G. Breyer:

Was there anything there that said we’re interested in history and what we’re not interested in is having this on the wall as… to encourage people to study the Bible and to encourage them to study religion and to understand that in their lives, religion should be important and this very solemn secular setting.

Nonetheless, religion is important.

Was there anything other than the document itself?

Mathew D. Staver:

No, it was just the document itself in a frame on a wall amongst almost 300 other documents.

Antonin Scalia:

What if its purpose were to demonstrate… and I quote from one of our earlier opinions… that we are a religious people whose institutions presuppose a Supreme Being.

What if that were its purpose?

Would that have made it bad?

Mathew D. Staver:

I don’t believe so, Justice Scalia, because that in fact is an acknowledgement that is part of our history; like in Marsh versus Chambers.

That’s why this Court has authorized prayers before legislative sessions or suggested that the national motto is constitutional because indeed we are a religious people as this Court has said more than five times.

We are a religious people.

Our institutions do presuppose the existence of a Supreme Being.

Anthony M. Kennedy:

And is it your position that no real harm is inflicted on people who do not agree with that message?

Mathew D. Staver:

That’s correct, Your Honor.

Justice Kennedy, it would not inflict any harm because in this case, it’s a passive display in a courthouse in a hallway and you could simply walk past that and avert your eyes once you see this.

It inflicts no harm, it does not–

Ruth Bader Ginsburg:

Mr. Staver, what about all the distinctions that have been made between messages that are brief or I think the expression has been minimal or minimum in some of our cases, like in God we Trust, like God save the United States and this Honorable Court, like under God, and a document that is about worshipping the Lord, at least as many words devoted to that topic.

So it’s not a brief reference.

It’s a powerful statement of the covenants that the Lord is making with his people.

Mathew D. Staver:

–Justice Ginsburg, the Ten Commandments is a unique symbol in the area of acknowledgment because of its historic role in influencing our law and government.

It is displayed in this context for that unique role.

It does have some statements in there about God but, frankly, very few when you look at the overall context.

Ruth Bader Ginsburg:

Have you read the first four commandments and could you say that?

Mathew D. Staver:

Sure.

And those are definitely and decidedly religious.

There is no question that the Ten Commandments is a religious document.

There is also no question that it has influenced our American law.

Antonin Scalia:

Do you think the Ten Commandments are longer than the legislative prayers you’ve heard at the beginning of congressional sessions?

Mathew D. Staver:

No, Justice Scalia.

I think they’re quite shorter.

Stephen G. Breyer:

I don’t know how much help I can get or not but I was thinking in terms of the involvement of the government, is the government involved in religion when it posts the Ten Commandments alone?

Yes, of course it is.

Now, there could be a purpose to it, that they want to just show the history of law but it’s all by itself and there is a lot more history than that and context may matter a lot.

Not everybody will go with the Ten Commandments just by itself there and say, well, gee, this seems to go too far.

This is going too far.

Why?

Because it isn’t really related to history, it’s the only thing up there, it’s involvement in religion, so forth.

Now, suppose I go down that track because what I’m really looking for is a key as to what’s too far and what’s not.

Stephen G. Breyer:

But for present purposes, let’s assume it’s too far.

Now, once they’ve gone too far there, the next thing that happens is they keep changing it but they change it pursuant to the resolution and it seems as if in context, all they’ve tried to do is to surround what went too far with a number of other things that would somehow make it legal.

Now, if it was wrong to begin with, is it wrong to end with?

Mathew D. Staver:

No, Justice Breyer, it is not wrong to end with any more than it would be wrong to begin with the Sunday laws based upon the Sabbath commandment which was a commandment about worship and the end with the secular reason for keeping those particular laws as this Court has recognized in McGowan.

And in this case, even if they started off with a decidedly and only religious purpose, which we contend they did not, they did not end with one and they’ve got to, as governmental officials, be able to adjust their missteps whenever they step on a constitutional land mine that is sometimes blurry and confusing to them.

That’s what they tried to do in this case, the best efforts to try to follow this Court’s decision when there was really no specific guidelines for them to be guiding their direction.

The Ten Commandments that Justice Stevens, you had mentioned about the versions, the versions I don’t believe, with all due respect, are relevant in this case or any other case regarding the Ten Commandments because if that were the case, you wouldn’t be able to teach the Bible in an appropriate context because there are so many different versions and yet Stone and Schempp has indicated that you indeed can teach even the Biblical text with all of its multiple versions.

David H. Souter:

But I assume if you were running a course in a school about the biblical text, you would explain the differences.

You would indicate the difference between the Jewish, the Roman, the Protestant, the Lutheran and so on and you’re not doing that here.

I would have thought your answer might be, well, if that really made a difference, we could have separate versions.

But it’s not comparable to school teaching.

John Paul Stevens:

Justice Souter, in fact it would be somewhat comparable because if you’re teaching general biblical text, you wouldn’t have all the different versions lined out.

David H. Souter:

Would you think it was appropriate in a public school course that was otherwise a bona fide course to teach the day on exodus, to teach about simply the Protestant version of the Ten Commandments?

Mathew D. Staver:

We would believe that, in fact, in this case, I don’t even think they thought about whether there were different versions but we certainly believe that they could have the text there and talk about the Ten Commandments.

David H. Souter:

In a public school, wouldn’t it be required, at least for intellectual reasons if not the reasons of the establishment clause to say, well, graven images are dealt with differently in the standard Roman translation and the preamble sections of what may and may not be regarded as commandment number 1 are different in the Christian versus Jewish and so on.

Wouldn’t that be an intellectually responsible requirement?

Mathew D. Staver:

That’s in a school context which this is a courthouse context.

David H. Souter:

Exactly.

I thought you were equating the two together.

Mathew D. Staver:

Not one to one but I think the version issue, if there is a version that flunks the test, it would be this Court’s south frieze.

It’s actually in Hebrew and it speaks only to Jewish people.

But yet that’s not sectarian such that it violates the establishment clause.

That’s the acknowledgment as opposed to an establishment.

Justice Stevens, if you would like, I would like to reserve the remainder of my time.

John Paul Stevens:

You certainly may do so.

Mr. Clement, you’re welcome back for a second time.

Paul D. Clement:

Thank you, Justice Stevens, and may it please the Court.

The display of historical documents here, like the display in the Lynch against Donnelly case of the creche, may include a religious item without running afoul of the establishment clause.

As in the–

Sandra Day O’Connor:

Do we have to consider the history of the display at all?

Paul D. Clement:

–Justice O’Connor, we would urge you not to consider the history of the display.

You in your concurring opinion in the Pinette case made the point that in the context of accommodations, the inquiry into religious purpose doesn’t make a lot of sense and you urged the Court to drop it in that context.

I think so too in the acknowledgment context.

Certainly if you have a situation where you don’t have… I think in the acknowledgment context as well, a focus on purpose may not be that productive.

But I would like to talk about the purpose–

Antonin Scalia:

I don’t know what you mean by the acknowledgment context.

Paul D. Clement:

–I think this Court has said that you can accommodate religions.

They’ve also said that you can acknowledge the role that religion has played in our society and I think in both contexts, a focus on purpose is probably not a prudent exercise of judicial resources.

But I would like to talk about the purpose here because I think what you have here is a display of a document alone in the first instance that certainly was at least defensible and probably constitutional, yet the courts below got off on the wrong foot by saying that the first display was open defiance of this Court’s decision in Stone against Graham and I think this Court’s cases themselves suggest that the contextual differences between the schoolhouse and the courtroom are enough to make the display, at least the first display, not in open defiance.

Now there was the second display and we are not here to defend the second display but that was the display that was in reaction to the lawsuit filed against the first display.

Now, I don’t know if that second display was the product of bad legal advice or simply frustration at the first lawsuit being filed but I don’t think it should make a constitutional difference.

In the Lynch against Donnelly case, Mayor Lynch, after the ACLU filed a lawsuit against him, had a rally at the site of the creche, a press conference, where he publicly vowed to fight to keep Christ in Christmas and then he led city workers in carols and said they should sing another one that apparently bothers people.

Yet despite that adverse reaction to the litigation being filed against the city of Pawtucket, this Court upheld the display and although the dissent did focus on the mayor’s crusade to keep Christ in Christmas, the majority and the concurring opinions did not.

And I think that is the proper mode of analysis.

Now, the second point I think is should these counties be faulted for trying to bring their practices in compliance with the Constitution?

And I think the answer there is clearly not.

And I was going to point this Court to the Marsh case that’s been talked about quite a bit.

One of the things that as Professor Chemerinsky said about the Marsh case that this Court emphasized in that case itself and in subsequent cases is the fact that the prayers there were non-sectarian in the sense that they did not directly invoke, say, Christ.

But that actually is something of a change that took place after the litigation began.

Prior to the litigation, there were explicit references to Christ as Justice Stevens pointed out in footnote 2 of his dissent in that case.

But the state of Nebraska, after they had a lawsuit, decided let’s make this an easier case for the Court, not a harder case, and they modified their conduct.

David H. Souter:

Okay, but at the end of the day in Marsh, there wasn’t any question that what they were doing was praying.

And here it seems to me that the change that you’re arguing for as significant is only significant unless it is a change in the essential activity because there is no law and it would be crazy law from this Court that said you can engage in religious endorsement, promotions, et cetera, so long as you hide the ball well enough.

What this Court basically has said is you can engage in secular objectives that incidentally involve religious figures or references, e.g., Moses up there.

What you started with in this case or what the county started with was a pretty religious-looking exercise and the question is, did they go from a totally religious exercise to a secular exercise or did they go from an obviously religious exercise to an obscured religious exercise?

And therefore, you can’t make context a mere change in physical context dispositive because it ignores that distinction.

And that distinction I think is what is driving or what is going to drive possibly in my mind the resolution of this case.

What do you say to that?

Paul D. Clement:

Justice Souter, I have two points in response.

First of all, what I think would be a crazy way of having a jurisprudence is for the Court to say that this display is a foundation to the law document, it’s perfectly constitutional in every other county courthouse in Kentucky except for McCreary County and Pulaski County because of their prior conduct.

Paul D. Clement:

The second point that I think is important in this context is that I think this Court’s establishment clause jurisprudence is already difficult enough to apply without creating the First Amendment equivalent of covered jurisdictions under section 5 of the Voting Rights Act.

John Paul Stevens:

Basically, and I think I understand you, you’re saying, and I think you said it earlier, drop the intent clause and basically have a… try to move toward an objective criterion saying there are some ways you can display religious things and some ways perhaps that you can’t and try to develop that kind of objective jurisprudence as distinct from an intent jurisprudence.

That’s your point, isn’t it?

Paul D. Clement:

That would be my point, Justice Souter, but I also think independent of that point, it is also not a particular productive jurisprudence to really treat municipalities differently because the mayor in one case may have started with the creche and decided to add the wishing well or in the other case started with the wishing well and added the creche.

I don’t think it makes any sense that if they end up in the same place, the constitutional rules should be the same.

Ruth Bader Ginsburg:

Mr. Clement, you placed heavy reliance on Marsh, which was prayer and it was undisguised and it was permitted as it has been since the beginning of our nation.

Would it be equally compatible with the establishment clause if this Court opened its daily sessions with prayer?

Paul D. Clement:

Justice Ginsburg, I’m not sure that I could understand the jurisprudence that said this Court could not open its sessions with a prayer but the Capitol can.

Now, if there was any difference drawn at all, I would assume it would be a difference based on history.

Antonin Scalia:

I’m not sure we don’t do it.

Paul D. Clement:

You know, it depends on how much content one wants to give–

Antonin Scalia:

I don’t know who we’re addressing when we say God save the United States and this Honorable Court.

They’re not talking to me.

Ruth Bader Ginsburg:

The kind of prayer that is used to open the legislative sessions which this Court has distinguished from in God we trust, God save the United States and this Honorable Court.

Paul D. Clement:

And as I said, Justice Ginsburg, I think if there were a difference in principle, it would have to be a difference based on history.

But I don’t think there is… in this context, I think it is fair to say–

Ruth Bader Ginsburg:

I’m asking you what your view is of the compatibility of every federal Court in the country having over the bench a replica of the Ten Commandments and opening each session with prayer.

Paul D. Clement:

–Justice Ginsburg, I suppose if the federal courts decided to do that, we would probably try to defend them on establishment clause grounds.

I don’t think, though, that… I think that would obviously be a much tougher case than the posting of the Ten Commandments in the outer hallway along with a variety of other documents which I take it to be the first case here.

And then the final display that the Court has before it is actually the Ten Commandments in the context of the other secular historical documents.

And I think that kind of display clearly is constitutional for the reasons that the display was constitutional in the Lynch case.

Sandra Day O’Connor:

Do you think we have to amend the Lemon test to reach your approach?

Paul D. Clement:

Well, Justice O’Connor, this Court on a variety of occasions has chosen to simply put Lemon to one side as opposed to overtly amending it.

Sandra Day O’Connor:

Do you think, then, we have to either put it aside or amend it?

Paul D. Clement:

No, I don’t, Justice O’Connor.

Sandra Day O’Connor:

To decide this case?

Paul D. Clement:

No, I don’t.

I think it would be prudent, as I suggested at the outset, to make not necessarily a full amendment and eliminate the first purpose prong of Lemon but at least in the acknowledgment context as in the accommodation context we’re not going to focus on that.

But independent of that, I think many of these Court’s cases that were decided even under Lemon acknowledge the principles that municipalities should be rewarded, not punished, for trying to change their conduct to try to get things right.

In Abbington against Schempp, which I think in many respects is a precursor to Lemon because it talked at least about the purpose and effects test and I gather that’s about all that’s left of Lemon.

Paul D. Clement:

In that case, this Court held out the promise that it might be permissible for the government to have some use of the Bible in school.

Now, when it did that, it didn’t except out Abbington township and said, but not for you, Abbington township, because you violated the purpose prong.

The Sixth Circuit here has adopted a rule that’s essentially once mistaken, always condemned and we don’t think that has any proper place in this Court’s establishment clause jurisprudence.

John Paul Stevens:

Thank you, Mr. Clement.

Mr. Friedman?

David A. Friedman:

Justice Stevens and may it please the Court, three times in the course of a year, McCreary and Pulaski county posted Ten Commandments displays.

They variously describe the Ten Commandments as the precedent legal code of Kentucky, the central historic legal document of the State and, finally, as the moral background of the Declaration of Independence and the foundation of our legal system.

In the course of the litigation, they announced that under current law, they announced to the court that uncurrent law, America is a Christian nation and they acknowledge that the purpose of their second display was to demonstrate America’s Christian heritage.

In this context, it is our position that the current courthouse display reveals both a purpose and an effect to endorse religion.

This Court has repeatedly and most recently in the Santa Fe case made clear that it is necessary to look at the content, the context and the history of a display in order to gauge whether or not there is a true secular purpose or whether or not an asserted secular purpose is a sham.

We submit here that on this record, the District Court and particularly in the context of an appeal from a preliminary injunction, which we have here, that the District Court had ample evidence from which it could conclude that the asserted secular purpose of McCreary and Pulaski counties was indeed a sham.

The counties announced their purpose not only in the content of the display itself but in the resolution that the counties enacted, the identical resolutions that the counties enacted within weeks after the filing of this lawsuit.

And in that resolution, the counties make clear that they relied on and cited approvingly the Kentucky legislature’s reference to Jesus Christ as the prince of ethics.

They made clear that they supported the fight of Alabama Supreme Court justice Roy Moore against the ACLU.

They made absolutely clear in their legal papers that they deemed this to be a Christian nation under current law and they made clear that they absolutely intended and believed they had the right to display the Ten Commandments.

They did so not in a display of history.

They asserted and they intended to do so because of the religious nature of the Ten Commandments.

There can be no doubt that the Ten Commandments portrays a religious point of view and is profoundly religious.

The Court said so in Stone.

There is no serious question about that.

The question then here is whether or not the counties, in their current display, have done anything to sufficiently neutralize the endorsing message that is contained in this record.

And we submit it has not done so.

It now announces that the Ten Commandments are the foundation of our legal system, not just that religion is but that the Ten Commandments, a particular religious code, the word of God, it asserts is the foundation of our legal system.

It asserts that the Ten Commandments, the revealed Word of God, provides the moral background of the Declaration of Independence.

We think it clear that the content of the Ten Commandments and the content of the Declaration of Independence deal with substantially different topics.

Anthony M. Kennedy:

Suppose you had a county 100 miles away or a state, a different state, and the same display was put on and the recitation was… and it was a sincere recitation, that the government simply wanted to recognize that the 10 Commandments has played an important role in the civic life of our people.

Then you have… they’re each up for five years and five years later, some school kids wander by one and they wander by the other.

In your view, from what you’re telling me, the Commandments are permitted in one location and not the other?

I mean, that’s the necessary purport of your argument.

You may not think that either of them are valid but on this prong of the argument, it seems to me that to differentiate, I just don’t understand that.

David A. Friedman:

I think to an extent there is a differentiation because this Court has made clear that any assessment must depend on context.

There is no fixed per se rule but rather, the context one must look at both the purpose and the effect.

In gauging the purpose, one looks at both the litigation history, the social facts, the content and any changes.

Here the District Court had not only the display itself but it had the announced purpose of the county.

It therefore was in a unique position to gauge the purpose of the… the true purpose of these counties.

Moreover, it was in a unique position to gauge the effects that the reasonable observer in these small rural Kentucky counties, the reasonable observer’s assessment of this particular display.

And the Court… McCreary County is a county with only 17,000 people.

Whitley City, the county seat, which is not even incorporated, has 1,100 people.

The District Court from its chambers in London, Kentucky was well situated to gauge whether or not the reasonable observer, knowing the litigation history of this case and knowing the changes in the forum and the context of this display, would perceive this to be a neutral recitation of history or simply the third in a series of efforts by this county government to post the Ten Commandments because that is what it wanted to post.

Stephen G. Breyer:

Does that mean forever?

What I’m thinking… let me spell it out a second.

The key words in Stone would be that this was posted, the Ten Commandments, because it would lead to, in the circumstances, the students remeditate, venerate, perhaps, and obey.

In other words, their reaction to it would likely be a religious reaction.

Now, here if you saw it just by itself, perhaps one would be concerned with the intent or the effect of calling to the viewer’s mind the sacred character of the law, which is fine for religious people to do but not necessarily fine for the State to do; and that leads them to venerate, perhaps to meditate, perhaps to consider the relationship in a religious way.

If that’s the problem, that would exist here only because of the history or most likely because of the history.

And if that is the problem, that would dissipate over time because it is the smallness of the audience and their familiarity with the history that would likely produce the similar religious reaction to the display.

Now, what’s your reaction?

David A. Friedman:

I think it’s a question of degree and while over time the importance of the purpose may diminish, the purpose does not fully diminish and the effect does not change substantially.

It is a question of degree, it is a question of line drawing.

Here there is not an effort to incorporate the Ten Commandments into a neutral display or a neutral course of study such as a compare and contrast of ancient moral codes or a comparative religion course such as many of us have taken and schools clearly can offer.

It is not a neutral display of law givers like the frieze in this Court.

It asserts the primacy of the Ten Commandments.

It says the Ten Commandments are the moral background of the Declaration of Independence.

It doesn’t say there is some commonality between the Ten Commandments and some American laws.

It talks not only about law.

It talks about our system of government.

It says the Ten Commandments, the revealed Word of God is the moral foundation of the Declaration of Independence.

That in itself is an endorsement of religion in this context and I don’t think that can dissipate over time.

Stephen G. Breyer:

Why is it?

It may be true.

Stephen G. Breyer:

These pilgrims came for religious reasons.

If all this was… so you have a display of the history of the origin of the law in the United States, what would be wrong with saying, this is a historical account?

It’s like teaching religion in the schools.

Of course it stemmed from the religious beliefs of those who came to the United States.

You don’t mean it religiously.

You mean it historically.

David A. Friedman:

It’s the difference between acknowledgment and endorsement.

Of course counties and other governments can acknowledge the role that religion played in history.

That is very different from acknowledging religion as a general matter and asserting that a specific code that is central to specific religions is the one… not only the one religious source but the one source, religious or moral, that provide… religious or secular that provides the moral background of the Declaration of Independence.

Antonin Scalia:

I don’t think it stands for that.

As you heard, the code takes various forms for various religions.

And I think all it stands for is the proposition that the moral order is ordained by God.

That’s all it stands for.

And to say that that’s the basis of the Declaration of Independence and of our institutions is entirely realistic.

David A. Friedman:

What this display says–

Antonin Scalia:

I don’t think they’re really saying that the particular commandments of the Ten Commandments are the basis of the Declaration of Independence.

That’s idiotic.

What the commandments stand for is the direction of human affairs by God.

That’s what it stands for.

David A. Friedman:

–Whatever the merit of that statement, that is not what these counties have said.

What these counties have said in their resolutions is that the Ten Commandments are the precedent legal code of Kentucky and the central historic legal document of the state.

What they have said in this display itself, in the explanation of the display, that they are the moral background of the Declaration of Independence, to the exclusion of all others, in effect.

When you say the, it doesn’t say one of.

It says it is the foundation of our legal system.

It doesn’t say it had an influence on some of our laws.

It asserts the primacy, the actual text of this display asserts the primacy of the Ten Commandments.

Antonin Scalia:

If that’s what it means, it’s idiotic.

I don’t think anybody is going to interpret it that way.

You can’t get the Declaration of Independence out of the Ten Commandments.

David A. Friedman:

I would agree with that, Your Honor.

Antonin Scalia:

And I don’t think that’s how somebody would normally read it.

I think what they’re saying is the principle of laws being ordained by God is the foundation of the laws of this state and the foundation of our legal system.

Sandra Day O’Connor:

How long is that resolution going to guide our view of the future displays or even the present one?

What if the membership of the board of supervisors is changed?

How long do we look to that particular resolution?

David A. Friedman:

I think, Your Honor, it’s an element that the District Court in the first instance must accept and gauge in determining whether or not the announced secular purpose is indeed a true purpose or is a sham.

Where we’re talking about a close time period, here three displays in less than a year by the same officials of the same county trying to post the same document, this case becomes very close to the Santa Fe independent school district case where it’s a moving target in direct response to pending litigation as an effort to try to get the same end result and changing the operative facts just slightly in the hope that eventually it will be right.

David H. Souter:

May I ask you a question on that point?

And I should know the answer.

It must be in the briefs but I don’t remember.

I assume that they rescinded the resolution before version 3 of the display was put up, is that correct?

David A. Friedman:

That is not correct, Your Honor.

The resolution was enacted in early December 1999, a couple of weeks after the display.

It has never been rescinded.

David H. Souter:

It is still on the books?

David A. Friedman:

It is still on the books.

A point is made in the reply brief, and it is accurate that it is is not a binding resolution, it encourages the county judge executive to post the Ten Commandments as part of a historic display.

It doesn’t say post a display of documents and have a county judge choose to post the Ten Commandments.

The initial paragraph of the resolution makes clear that it encourages the county judge to post the Ten Commandments and then as part of a historic display.

The county judge did that.

The District Court enjoined that display.

The county appealed that injunction and then, after getting new lawyers, dropped its appeal.

Soon after that, the county posted a third display, again, the Ten Commandments with what it called historic documents, leaving aside how the Stars Spangled Banner or the national motto as a historic document.

What it did is wrap the Ten Commandments in the three or four secular documents that we all clearly acknowledge as the root of the American system of government.

It did so pursuant to the same resolution.

There has never been another resolution, it has not been rescinded.

The resolution is there.

It cites Jesus Christ as the prince of ethics, it cites legislative allusions to Jesus Christ.

I think the resolution, which is cited in the joint appendix of the docket number, makes it clear that the purpose of this county was to post the Ten Commandments and to do so because of the religious nature of the Ten Commandments because of the primacy in its view of the Ten Commandments.

That’s what it focused on.

David A. Friedman:

That’s what this litigation history has revealed throughout and that’s what the District Court found at least at the preliminary injunction stage, which is where we still are.

There has been no evidence taken in the case, no discovery taken in the case to suggest anything other than what the District Court found.

And on this record, I submit that there can be no conclusion other than that the purpose of the county in posting the series of displays was to post the Ten Commandments because of their religious nature and the effect on the reasonable observer who knew what was going on, who was there to see what was transpiring in this small county was clear to the District Court.

The District Court doesn’t operate in a vacuum.

And this Court has made clear that courts cannot turn a blind eye to a sham secular purpose.

The District Court not only saw the displays, heard the arguments of counsel, saw the resolutions of the District Court, of the fiscal Court.

The fiscal Court is the legislative branch of government in Kentucky.

The District Court also was there in the community and could see both the public reaction, the letters to the editor, the keep the Ten Commandments signs on yards throughout the county.

John Paul Stevens:

Is all of that in the record?

David A. Friedman:

That is not in the record.

John Paul Stevens:

Then I don’t think we should talk about it.

David A. Friedman:

The District Court was well situated to understand the social fact, historical record and arguments of both the lawyers and the parties and the statements of the parties.

John Paul Stevens:

Mr. Friedman, can you tell me where in the joint appendix the resolution appears?

David A. Friedman:

Joint Appendix page 1, number 5, and it’s Exhibit 1 attached to it.

And that’s for one of the counties.

The other one is… and these are the docket entries.

The document itself is not in the joint appendix.

And the other county is joint appendix page 28, number 6.

They’re both Exhibit 1s attached to those documents.

Those documents are the county’s motions to dismiss in the District Court.

Stephen G. Breyer:

It’s not printed?

David A. Friedman:

It is not in the appendix itself, no.

The resolution is not in there.

The citation to it from the index is there.

Sandra Day O’Connor:

It is in the record which we have?

David A. Friedman:

It is in the record.

It was submitted in fact by the petitioners in this case.

They submitted the resolution in support of their arguments defending the second display, the display that surrounded the Ten Commandments with the religious text.

They made clear in that brief that they were asserting their right to display the Ten Commandments as part of their argument that the purpose was to demonstrate America’s Christian heritage.

I submit that in that brief, in that resolution, in the repeated statements of the county officials and of their counsel, the District Court was well within its discretion to determine that the purpose here was religious, was not secular and that the effect, as viewed by the reasonable observer, was religious… was to endorse religion, not secular.

David A. Friedman:

If there are additional questions, I would be happy to answer them.

John Paul Stevens:

The other question I have is assuming you didn’t have any of this history and they started off with plan 3, would that have violated the establishment clause?

David A. Friedman:

Yes, Your Honor, I think it would.

It would be a closer question but in this context, what we have is the assertion that the Ten Commandments are the source, the moral background of the Declaration of Independence, the foundation of our legal system.

It is not incorporating the Ten Commandments as part of a neutral course of study.

It is not like having Moses along with 15 other or 15 law givers.

It is the assertion of the primacy of the Ten Commandments.

Antonin Scalia:

I don’t understand the difference.

I mean it seems to me it would violate the establishment clause, it would equally do so if you said it’s a major part of or even a part of.

Now, maybe it makes it wrong to say it’s the exclusive one.

It may make it more wrong but we’re not grading papers here.

It seems to me that whether it violates the establishment clause depends upon whether you’re endorsing… whether you’re proselytizing religion.

David A. Friedman:

I think that’s correct, Your Honor.

John Paul Stevens:

What does primacy have to do with it?

David A. Friedman:

I think it makes it an easier case when it asserts this is the one rather than one of several or one of many.

John Paul Stevens:

But your real position is they wouldn’t have to have done that as long as they had the Ten Commandments in the display, that would be enough?

David A. Friedman:

I think it depends on the content and context of the display.

John Paul Stevens:

Exactly what we’ve got in Exhibit 3 or whatever it is, that we don’t have the statement of purposes, we don’t have them saying it’s the sole source or the primary source.

They say it’s a source.

Does that still violate the establishment clause?

David A. Friedman:

I think it does, Your Honor.

Stephen G. Breyer:

Since you have a minute, give me your opinion to the right standard if hypothetically you start with the Goldberg-Schempp idea, that the government is not absolutely forbidden by the establishment clause to recognize the religious nature of the people nor the religious origins of much of our law and so forth but it’s easy to go too far and it’s easy in this area you are trading on eggs to become far more divisive than you hoped and really end up with something worse than if you stayed out in the first place.

In other words, it’s a very delicate matter and it’s very easy to offend people.

Now, suppose you start with that.

You’re trying to define what is too far constitutionally speaking.

What’s your test?

Of the many that have been in our opinions, which do you think works the best for that purpose or some other?

David A. Friedman:

I think the Court’s endorsement test has stood the test of time and has worked well.

It allows the District Courts that are most familiar with what is actually happening to look at both the purpose and the effect of a particular display.

I don’t think there can be an ironclad rule.

David A. Friedman:

There can be presumptions.

There can be brighter line tests perhaps.

But I think ultimately–

Ruth Bader Ginsburg:

Within reason outline an approach that would say a religious display is presumptively for… is a presumptive endorsement.

I think with the Baptist brief.

Would you endorse that test?

David A. Friedman:

–We think that test can work very well in a context like this where we’re talking about the display of religious texts rather than just symbols.

And the point I think is well worth considering, that we assume that when people post signs or displays, bumper stickers, buttons, that they endorse the content of that text and that the presumption then would place a burden on government to make sure that it is neutralizing the endorsing effect of displaying text.

I think that is a very workable test in a context like this where we’re talking about the posting of core religious texts.

David H. Souter:

Would you explain why you distinguish text and symbolize them?

You distinguish text from the crucifix and so on.

Why?

David A. Friedman:

It does depend entirely on context, to be sure, but symbols are subject to alternative interpretation.

Text is not.

Or text rarely is.

And text such as this, religious text, cannot be seen as anything other than the revealed Word of God.

I mean, here we have 120 words in the first four Commandments, 142 in the first five Commandments of this display that is a profound, detailed explication of core religious content, core religious meaning.

David H. Souter:

I understand the text part but why not adopt the same test for the symbols?

For example, why not adopt it for the Moses up here?

The burden would be on the government to show that it was not approving, endorsing, et cetera, and in this context, that would be pretty easy.

Why not have the same test?

David A. Friedman:

There is no reason why it couldn’t be applied just as well.

My point was simply that it’s even easier to do it when there is text.

The Court doesn’t need to go so far as to decide whether to apply it to both text and symbol, although it certainly could.

It need only go so far as say when government posts religious texts, it must be presumed to endorse the content of that text.

It’s a little more difficult when you’re talking about symbols, depending on what the symbols are.

Some symbols are far more sectarian such as the Cross, such as the Star of David, than are other symbols.

At least when there is text involved, one presumes that the display of text is an endorsement of the content of that text unless the content and the context make clear that it is neutralizing.

The examples are obvious.

The display of religious art in a government owned art museum, the playing of religious music by a government symphony orchestra, the context of the orchestra, the context of the museum are sufficient to neutralize the religious message that is contained in the display itself.

David A. Friedman:

Here… and the same thing I think would be said of a comparative religion course or a compare and contrast ancient moral code course.

There there is not an endorsement of a particular code, a particular text but rather a neutral educational display about several alternative ones.

That is different from taking one religious code, one revealed Word of God, placing it next to the revered documents that frame the American Republic and saying, these are all alike, these are worthy of equal reverence.

That is simply wrapping the Ten Commandments in the flag and, with all due respect, that constitutes endorsement.

Thank you.

John Paul Stevens:

Thank you, Mr. Friedman.

Mr. Staver, you have about three minutes left.

Mathew D. Staver:

Justice Stevens, the argument before this Court was unlike anything that went down in the District Court or the Circuit Court of Appeals because never was a resolution ever mentioned.

Never did the District Court or the Sixth Circuit ever discuss a resolution.

It was not mentioned in this Court until this answer brief by respondents was filed.

It is not part of the District Court’s decision, it was not part of the Circuit Court of Appeals.

The District Court said that what imprinted every action thereafter with defiance in a taint is the mere posting of the first display.

There was no resolution for that display, none is needed.

There is no resolution for the foundations display.

Sandra Day O’Connor:

Was there a resolution, Counsel?

Mathew D. Staver:

For the second display, yes, Your Honor, there was.

Sandra Day O’Connor:

And whatever is in the record is that resolution?

Mathew D. Staver:

It is that resolution but it is specific to the second display because it specifically mentions what kind of documents are in that display.

It is not a general display regarding posting of documents.

In this case, when the Court–

John Paul Stevens:

But is it correct that it was not amended when the third display was created?

Mathew D. Staver:

–It was not amended because it was not… it was relevant and fact-specific in the display itself.

John Paul Stevens:

It is the last expression of the governing body’s intent?

Mathew D. Staver:

No, Your Honor.

What’s the last expression is the foundations display which clearly a reasonable observer would see.

And if there is any doubt regarding–

Sandra Day O’Connor:

But there hasn’t been a new resolution.

Mathew D. Staver:

–There is not a new resolution.

Sandra Day O’Connor:

And that one wasn’t rescinded?

Mathew D. Staver:

That one died, Your Honor, with the Court’s ruling.

Sandra Day O’Connor:

It was adopted and it still is there, presumably?

Mathew D. Staver:

Presumably.

There is nothing in the record that suggests what happened to it.

Whether it was repealed or not.

But it was specific factually only to that second display, not to the foundations display which the District Court found was fundamentally different.

And if there is any doubt regarding the history of purpose, we would suggest, Justice O’Connor, your suggestion in the Wallace, that if there is any doubt regarding purpose, to look to the effects prong.

And I think when you look to the effects prong, a reasonable observer will see that this is a constitutional display.

This case is one in which the Sixth Circuit drew the most difficult taint, it imposed it in a subsequent action in the most difficult area of the establishment clause and clearly the public officials have substantially and fundamentally changed.

They can’t live under this taint forever.

They tried but they could to correct their way.

They tried what they could to display this in a constitutional manner so that anyone passing by would see this as one document among many others.

In addition to the display itself, with all the other hundreds of other documents that are on the wall, that this display has a specific stated purpose.

Sandra Day O’Connor:

So presumably these things are open if it goes on to the final hearing?

The preliminary injunction stage?

Mathew D. Staver:

Yes, the preliminary injunction.

If the fact that the resolution is technically latent on the books, they will repeal that, they repudiate that resolution.

Thank you.

John Paul Stevens:

Thank you.

The case is submitted.

The honorable Court is now adjourned until Monday next at ten o’clock.