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Brief for Respondents in Van Orden V. Perry, 03-1500

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Brief for Respondents in Van Orden V. Perry, 03-1500 No. 03-1500 ================================================================ In The Supreme Court of the United States --------------------------------- ♦ --------------------------------- THOMAS VAN ORDEN, Petitioner, v. RICK PERRY, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF TEXAS AND CHAIRMAN, STATE PRESERVATION BOARD, ET AL., Respondents. --------------------------------- ♦ --------------------------------- On Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit --------------------------------- ♦ --------------------------------- RESPONDENTS’ BRIEF --------------------------------- ♦ --------------------------------- GREG ABBOTT R. TED CRUZ Attorney General of Texas Solicitor General Counsel of Record BARRY R. MCBEE First Assistant Attorney JOEL L. THOLLANDER General Assistant Solicitor General EDWARD D. BURBACH AMY WARR Deputy Attorney General Assistant Solicitor General for Litigation PAUL MICHAEL WINGET- DON R. WILLETT HERNANDEZ Deputy Attorney General Assistant Attorney General for Legal Counsel P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 (512) 936-1700 ================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 i QUESTION PRESENTED Whether a monument bearing the Ten Command- ments, which has stood for over forty years and is sur- rounded by sixteen other monuments on the Texas Capitol Grounds, constitutes an impermissible establishment of religion in violation of the First Amendment. ii TABLE OF CONTENTS Page Question Presented .................................................... i Table of Contents........................................................ ii Table of Authorities .................................................... v Statement of the Case.................................................... 1 Summary of Argument ............................................... 8 Argument.................................................................... 9 I. The Texas Ten Commandments Monument, in Context, Would Not Be Perceived as an Endorsement of Religion, and So Does Not Offend the Establishment Clause ................... 9 A. The Texas Monument, in Context and Considering its History, Would Not Be Perceived by the Reasonable Observer as Impermissibly Endorsing Religion. .......... 12 1. The context is not as Petitioner de- scribes .................................................. 12 2. The actual context does not convey en- dorsement ............................................ 16 a. The museum setting of the Capi- tol Grounds precludes a percep- tion of religious endorsement........ 16 b. The monument’s placement be- tween the Texas Capitol and Su- preme Court highlights its civic message.......................................... 20 3. The monument’s content is reasona- bly perceived to deliver a civic mes- sage, not a religious one ...................... 21 iii TABLE OF CONTENTS – Continued Page a. The monument contains civic symbols .......................................... 21 b. The monument’s text is not rea- sonably perceived to reflect offi- cial state policy.............................. 23 4. The monument’s history reinforces its civic message ....................................... 25 B. The Monument Serves the Secular Pur- poses of Honoring the Eagles and Ac- knowledging the Ten Commandments’ Historical Impact on the Development of Western Law and the Culture and Diver- sity of Texas .............................................. 25 1. A monument can be both religious and secular .......................................... 26 2. The monument was accepted in 1961 for the secular purpose of honoring the Eagles ............................................ 27 3. Returning the monument after Capi- tol renovations were complete, and turning it to face a newly constructed sidewalk, did not demonstrate an im- permissible religious purpose ............. 29 4. The monument also serves to ac- knowledge the Ten Commandments’ impact on law and culture................... 31 iv TABLE OF CONTENTS – Continued Page II. The “History and Ubiquity” of the Texas Ten Commandments Monument, and of Ten Commandments Monuments Across the Na- tion, also Demonstrate That the Texas Monument Does Not Violate the Establish- ment Clause..................................................... 37 A. The Monument’s History on the Grounds Justifies Its Continued Preservation ....... 38 B. Official Acknowledgment of the Ten Commandments’ Historical Impact Has Long Featured Prominently in our Na- tion’s Cultural Landscape......................... 39 III. The Texas Ten Commandments Monument Survives Any Other Test Applied to Assess Its Conformity with the Establishment Clause .............................................................. 43 A. The Monument Does Not Discriminate.... 43 B. The Monument Does Not Coerce .............. 45 C. The Texas Monument Is Not Unconstitu- tional Under Stone v. Graham ................... 45 IV. The Monument Presents a Far Lesser Threat of Establishment than Displays and Prac- tices Condoned by This Court ......................... 46 Conclusion .................................................................. 50 v TABLE OF AUTHORITIES Page CASES Agostini v. Felton, 521 U.S. 203 (1997) ..............................11 Anderson v. Salt Lake City Corp., 475 F.2d 29 (CA10 1973) .................................................................... 33 Bertera’s Hopewell Foodland, Inc. v. Masters, 236 A.2d 197 (Pa. 1967) ........................................................ 34 Books v. City of Elkhart, 235 F.3d 292 (CA7 2000), cert. denied, 532 U.S. 1058 (2001) ................. 6, 28, 33, 40 Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995) .............................................11, 12, 44 City of Elkhart v. Books, 121 S.Ct. 2209 (2001) ............................................................ 20, 28, 34, 44 Comm’rs of Johnston County v. Lacy, 93 S.E. 482 (N.C. 1917)...................................................................... 34 Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327 (1987) .............................................................................. 26 County of Allegheny v. ACLU, 492 U.S. 573 (1989) ....passim Edwards v. Aguillard, 482 U.S. 578 (1987) ...................... 45 Elk Grove Unified Sch. Dist. v. Newdow, 124 S.Ct. 2301 (2004) ..............................................................passim Engel v. Vitale, 370 U.S. 421 (1962) ...................................11 Epperson v. Arkansas, 393 U.S. 97 (1968) ........................ 26 Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) ...............................................................................11 Freethought Soc’y v. Chester County, 334 F.3d 247 (CA3 2003) ................................................................ 33, 41 vi TABLE OF AUTHORITIES – Continued Page Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001) .............................................................................. 12 Hardin v. State, 46 S.W. 803 (Tex. Crim. App. 1898)........ 34 Hollywood Motion Picture Equipment Co. v. Furer, 105 P.2d 299 (Cal. 1940)................................................. 34 King v. Richmond County, 331 F.3d 1271 (CA11 2003)................................................................................ 40 Larson v. Valente, 456 U.S. 228 (1982)........................ 43, 44 Lee v. Weisman, 505 U.S. 577 (1992)........................... 45, 49 Lemon v. Kurtzman, 403 U.S. 602 (1971) ......................... 10 Lynch v. Donnelly, 465 U.S. 668 (1984)......................passim Marsh v. Chambers, 463 U.S. 783 (1983)......... 37, 40, 48, 49 McCreary County v. ACLU, No. 03-1693......... 10, 33, 34, 40 Modrovich v. Allegheny County, 385 F.3d 397 (CA3 2004)................................................................................ 40 Mueller v. Allen, 463 U.S. 388 (1983)................................ 26 Penn. Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978) ....................................................................... 39 Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963) ..........................................................11, 36 Sch. Dist. of the City of Grand Rapids v. Ball, 473 U.S. 373 (1985) ................................................................11 State v. Freedom from Religion Found., Inc., 898 P.2d 1013 (Colo. 1995) .............................. 6, 15, 25, 33, 44 Stone v. Graham, 449 U.S. 39 (1980) .............. 20, 36, 45, 46 Tex. Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) ................11 vii TABLE OF AUTHORITIES – Continued Page Van Orden v. Perry, 125 S.Ct. 346 (2004)............................ 8 Van Orden v. Perry, 2002 WL 32737462 (W.D. Tex. Oct. 2, 2002)...................................................................... 8 Van Orden v. Perry, 351 F.3d 173 (CA5 2003) .... 8, 25, 28, 36 Wallace v. Jaffree, 472 U.S. 38 (1985) ................... 12, 26, 45 Zorach v. Clauson, 343 U.S. 306 (1952) .......................11, 24 STATUTES AND RULES 16 U.S.C. §461 ...................................................................... 1 20 U.S.C. §9172 .............................................................. 1, 17 Haw. Rev. Statutes §8-4 ..................................................... 49 S. Con. Res. 13, 105th Cong. (1997); H.R. Con. Res. 31, 105th Cong. (1997) ................................................... 42 TEX. ADMIN. CODE
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