In the Supreme Court of the United States. CONSTITUTIONAL ATHEISTS, INC., HOWARD SPRAGUE, and FLOYD LAWSON, Petitioners,

Transcription

1 No In the Supreme Court of the United States CONSTITUTIONAL ATHEISTS, INC., HOWARD SPRAGUE, and FLOYD LAWSON, Petitioners, v. GREENE STATE POLICE OFFICERS ASSOCIATION, BARNEY FIFE, in his official and individual capacity, and OTIS SMITH, in his official and individual capacity, Respondents. On Writ of Certiorari To the United States Court of Appeals For the Fourteenth Circuit BRIEF FOR THE RESPONDENT Team 26

2 QUESTIONS PRESENTED I. A private organization established memorials to deceased peace officers on public lands. The government did not participate in the design or placement of the memorials other than to permit the private parties to erect the memorials on the same public lands that had previously hosted similar memorials to private citizens. The question presented is whether religious components of those memorials can be imputed to the government and whether the Establishment Clause is applicable to private speech. II. The Establishment Clause forbids the government from enacting any law establishing religion. In Greene grieving coworkers, with the permission of the victim s families, placed roadside memorial crosses recognizing state officers killed in the line of duty. The question presented is whether merely because the private citizens placed some of the crosses on government land the roadside memorials nonetheless violate the Establishment Clause. i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv CITED AUTHORITIES... 1 INTRODUCTION... 2 STATEMENT OF THE CASE... 2 SUMMARY OF THE ARGUMENT... 6 ARGUMENT... 7 I. The crosses erected by the POA constitute private speech and should be analyzed under precedent governing private freedom of expression A. Roadside memorials funded and built by private actors for a private purpose should be considered private expressive conduct The government did not speak by allowing the POA to erect the memorials The use of public land is not dispositive because the State established limited public forums for private speech B. The constitutionality of private, religious speech should be assessed under Free Speech jurisprudence The memorials are protected by the Free Speech Clause The Court should restrict the application of the Establishment Clause to government speech II. The roadside crosses do not violate the Establishment Clause A. The roadside crosses do not violate the Establishment Clause under the context and history test set forth in Van Orden ii

4 1. The circumstances of the roadside crosses donation and placement indicates that the crosses do not violate the Establishment Clause The physical setting and design of the roadside crosses indicates that the crosses do not violate the Establishment Clause The history of the Nation and the history of roadside memorials indicate that the crosses do not violate the Establishment Clause B. The roadside crosses do not violate the Establishment Clause under the Lemon/endorsement test The roadside memorials do not have the purpose of endorsing religion The roadside memorials do not have the effect of endorsing religion C. Regardless of the test used, prohibiting the roadside crosses here would violate the purposes of the Establishment Clause CONCLUSION iii

5 TABLE OF AUTHORITIES CASES Page(s) A.C.L.U. of Ky. v. Mercer Cty., 432 F.3d 624 (6th Cir., 2005)...21 Am. Atheists, Inc. v. Duncan, 637 F.3d 1095 (10th Cir. 2010)...19 Bd. of Educ. of Westside Cmty. Schs. v. Mergens, 496 U.S. 226 (1990)...17 Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995)...16, 17, 18, 30 Church of the Lukumi Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520 (1993)...18, 20 Citizens United v. F.E.C., 558 U.S. 310 (2010)...16 Cmte. for Pub. Ed. and Religious Liberty v. Regan, 444 U.S. 646 (1980)...21 Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985)... 13, 14 Cty. of Allegheny v. A.C.L.U., 492 U.S. 573 (1983)...21, 30 Everson v. Bd. of Ewing Tp., 330 U.S. 1 (1947) Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001)...12, 13, 14, 15 In re City of Houston, 731 F.3d 1326 (2013)...14 Johanns v. Livestock Mktg. Ass n, 544 U.S. 550 (2005)...8, 9, 10 Keller v. State Bar of Cal., 496 U.S. 1 (1990)...8, 9 iv

6 Lamb s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)...15, 19, 21 Lee v. Weisman, 505 U.S. 577 (1992)...18 Lemon v. Kurtzman, 403 U.S. 602 (1971)...5, 17, 18, 21, 29 Lynch v. Donnelly, 465 U.S. 668 (1984)...5, 21, 26, 29, 30 Marsh v. Chambers, 463 U.S. 783 (1983)...26 McCreary Cty. v. A.C.L.U. of Ky., 545 U.S. 844 (2005)...19, 22, 29 Perry Educ. Ass n v. Perry Local Educator s Ass n, 460 U.S. 37 (1983)...11, 12, 13 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)...18, 19 Pleasant Grove City v. Summum, 555 U.S. 460 (2009)...9, 11, 16 Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995)...12, 13, 14, 16 Salazer v. Bruno, 559 U.S. 700 (2010)...23, 31, 32 Sch. Dist. of Abington Tp. v. Schempp, 374 U.S. 203 (1963)...18, 20, 31 Trunk v. City of San Diego, 629 F.3d 1099 (9th Cir., 2011)...27 United States v. O Brien, 391 U.S. 367 (1968)...16 Van Orden v. Perry, 545 U.S. 677 (2005)...5, 19, 21, 22, 23, 24, 25, 26, 31, 32 v

7 Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct (2015)...12, 13 Widmar v. Vincent, 454 U.S. 263 (1981)...12 Zorach v. Clauson, 343 U.S. 306 (1952)...21 CONSTITUTIONAL PROVISIONS U.S. Const., Amend. I U.S. Const. amend. XIV STATUTES 15 U.S.C. 1052(b) (2012) U.S.C (a) (2012)...3 OTHER AUTHORITIES Amy Coney Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev (2003)...19 Amanda Reid, Private Memorials on Public Space: Roadside Crosses at the Intersection of the Free Speech Clause and the Establishment Clause, 92 Neb. L. Rev 124 (2013)...29 Charles O. Collins & Charles D. Rhine, Roadside Memorials, 47(3) OMEGA 221 (2003)...27 Christopher Newport Cross, The Historical Marker Database, Courthouse History, United States District Court for the District of Columbia, Father Junipero Serra, Architect of the Capitol, National Cemetery Administration, U.S. Dept. of Veteran Affairs, The Argonne Cross Memorial, The American Legion, vi

8 CITED AUTHORITIES U.S. Const, amend. I.: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 1

9 INTRODUCTION This case is about the right of friends and family to express grief and memorialize the dead at the place where they died. The facts of this case are commonplace. People die on government property. Family members look for a way to memorialize unexpected deaths. Here, a group representing families of police officers decided to memorialize fallen officers with roadside crosses. The Court of Appeals recognized that even when these memorials are on public property, the speech is that of the grieving families. And, allowing families to express grief on public land using a cross a common symbol of death does not violate the Establishment Clause. To allow an objector to remove these memorials would constitute a heckler s veto. Moreover, it would violate the mourners Freedom of Speech. Therefore, this Court should affirm the lower Court s decision and remand to the District Court with instructions to grant the POA s motion for summary judgment. STATEMENT OF THE CASE For five decades, the people of Greene have honored their fellow citizens killed on public highways with private roadside memorials. ROA.3 n.2. The State has known of the existence of these memorials and has historically taken no action to limit their placement or regulate their content. Id. The chain of events that culminated in this case was set into motion in November 2001, when Officer Andrew Taylor s life unexpectedly ended. Id. Taylor, a Greene State Police Officer, was serving a motorist whose car had broken down when he was struck by a vehicle. Id. Officer Taylor s family, blindsided by grief in the buildup to the holiday season, decided to commemorate his life and sacrifice by placing a wooden cross monument at the place where he 2

10 died. Id. The Taylor family did not seek any government approval in erecting this memorial, nor did any government entity require a permit. Id. Over the next several months, several other families of State Police officers erected similar memorials around the state. Id. These memorials serve both to honor the memory of the individual officers who have given their lives and to remind to the citizens of Greene of the risks facing law enforcement officers. The Taylor family is made up of devout Christians. Id. Therefore, in honoring Andrew, it was only natural that they would choose to erect a cross. There was no ulterior motive; the Taylors were merely expressing their grief. Other families of fallen officers soon followed the Taylors example and erected modest memorials of their own. Id. The officers and members of respondent Greene State Police Officers Association ( POA ) saw these modest memorials and decided to do what they could to support the families in their grief. The POA, which is a private entity that supports Greene State Police officers and their families, saw caring for the loved ones of its fallen members as a natural extension of its mission. Starting in 2002, the POA began to erect memorials honoring other troopers who were killed while on duty. Id. at 2. The POA engaged in a thoughtful and deliberative process designing the memorial crosses. Like the one to Officer Taylor, the memorials erected by the POA have several meanings. Each bears the name, rank, and badge number of the fallen officer; a depiction of a phoenix, the Greene State Police logo; the year of the trooper s death; and a plaque displaying a photo and biographical information about the trooper. Id. at 3-4. All of the memorials that the POA has erected to date have been Roman crosses. This design was selected because of the longstanding association of the cross shape with ideas and values such as death, honor, remembrance, gratitude, sacrifice, and safety. Id. at 4; cf. 32 U.S.C (a) (2012) (stating 3

11 that criteria for the Distinguished Service Cross military decoration includes notable and extraordinary heroism). Further, this design was consistent with the wishes of the families of the troopers who have been honored. ROA.4. The POA has erected a total of 28 privately-funded memorials in a variety of locations throughout the state. Id. at 5. The memorials are placed as close as possible to the place where the officer died, and in a location where members of the public can stop and view the monuments. Id. at 4. Thus, while the first memorial was erected on private property located near a road on which an officer was killed, the POA subsequently received permission from the state to place later memorials on public property, including publicly owned rights-of-way and roadside areas. Id. at 4. The POA undertook this effort on behalf of its members, the fallen officers, and their families. It did not coordinate with the state other than to secure permission to use the Greene State Police logo and to erect memorials in a limited number of public spaces. Id. at 5. The state did not take any other official action with regard to the memorials, although it stated on at least one occasion that the State neither approves or disapproves of the memorial marker in its written communications authorizing a particular memorial. Id. In the 15 years following the placement of the Officer Taylor s monument the crosses existed without objection. Families were able to grieve the loss of their loved ones, and citizens were able to learn about the officers who gave their lives protecting the citizen of Greene. This changed in 2017, when the District Court granted Constitutional Atheists, Inc., summary judgment against the POA. Id. at 5. The court found that the roadside memorials violated the Establishment Clause. 4

12 This litigation arose when petitioners, a Delaware non-profit organization and two members who are Greene residents, filed suit against the state and several state employees. Id.. Because the POA constructed and maintained the memorials, the court allowed the POA to intervene as a party-defendant. Id. The suit alleged that the state had violated the Establishment Clause and sought the removal of the memorials from all public lands, the removal of the state police insignia from all remaining memorials, a declaration affirming the violation of the petitioners constitutional rights, and attorneys fees. Id. The district court found that the memorials constituted government speech that violated the Establishment Clause and granted summary judgment for the plaintiffs. Id. The Court of Appeals reversed. Id. at 5. The court found that the memorials constituted private speech by the POA, id. at 6, and that the memorials did not violate the Establishment Clause after applying the endorsement test developed in Lynch v. Donnelly, ROA.9 (citing Lynch, 465 U.S. 668, 690 (1984) (O Connor, J., concurring)). In finding that the speech here was private, the court found two factors particularly significant: the fact that the State had specifically disclaimed ownership or responsibility for the content of the memorials and the fact that 8 of the 28 memorials were erected on private land. ROA.7. Having held the memorials constituted private speech, the court found that there was ample evidence to support the common-sense perception by a reasonable observer that the memorials were erected for and furthered a permissible, secular purpose and therefore did not violate the Establishment Clause. Id. at This appeal followed. 5

13 SUMMARY OF THE ARGUMENT I. The roadside memorial crosses memorializing fallen officers constitute private speech by the Greene State Police Officers Association, a private entity. The State of Greene did not take any action to establish the content of the speech represented by the memorials, exercise final approval authority over the message, or selectively distinguish between different private memorials erected on public lands. Further, the government is not responsible for the content of the memorials merely by virtue of their placement on public property because the state had established those lands as limited public forums. The fact that the speech occurred in these limited public forums provides strong evidence that it was private speech. Having found that the speech was private, the Court should assess the speech under the Court s Free Speech jurisprudence. The Court has repeatedly held that private religious speech in limited public forums does not constitute an Establishment Clause problem for the government that created the forum. This is consistent with the text and purpose of the Free Speech and Establishment Clauses. The Court should take this opportunity to clarify its precedents and state that the Free Speech and Free Exercise Clauses, but not the Establishment Clause, govern private, religious speech. II. The roadside memorial crosses do not violate the Establishment Clause. Enforcement of the Establishment Clause requires a delicate balance. The Court developed several tests in an attempt to strike this delicate balance. The proper test here is the Van Orden contextual test. As in Van Orden, the donation and placement of the roadside memorial crosses indicates that they do not violate the Establishment Clause. Likewise, the physical settings of the memorial crosses indicate that that they do not violate the Establishment Clause. Moreover, the history of roadside 6

14 crosses and the history of the Nation indicate that the roadside crosses do not violate the Establishment Clause. Even under the Lemon/endorsement test the roadside crosses do not violate the Establishment Clause. The POA did not have the purpose of endorsing a religion through erecting the crosses. Rather, the POA erected the crosses to honor the sacrifice of the slain officer. Likewise, the roadside crosses do not have the effect of establishing religion. Here, the reasonable observer would note a variety of factors that, taken together, would indicate that the crosses were place by a private organization to recognize a fallen officer. Finally, under either the Van Orden or Lemon/endorsement test the crosses should not be prohibited; to do so would violate the purpose of the Establishment Clause. The Establishment Clause was never intended to require callous indifference. Nor does the Establishment Clause prohibit all activity preferring religion over irreligion. The Court has recognized that the Establishment Clause allows some mixing of government and religion. Here, removing the roadside memorial recognizing the sacrifice of a slain officer would exhibit hostility toward religion. ARGUMENT I. The crosses erected by the POA constitute private speech and should be analyzed under precedent governing private freedom of expression. The roadside memorial crosses memorializing fallen officers constitute private speech by the Greene State Police Officers Association. First, the POA erected the memorials in government established limited public forums. Speech made by private parties in limited private forums is private speech and is not imputed to the government. Second, the government did not control the content of the speech embodied in the memorials, so the government is not 7

15 responsible for that content. Third and finally, the crosses are impermanent, and the government did not make an affirmative decision to approve each one. Because the speech here was private, the Establishment Clause does not apply. Rather, the Court should analyze the content of the speech under the Free Speech Clause. The POA, its members, and the families of the fallen police officers have a right to express their grief in any form that complies with all generally applicable laws. A. Roadside memorials funded and built by private actors for a private purpose should be considered private expressive conduct. 1. The government did not speak by allowing the POA to erect the memorials. The State of Greene did not take any action to establish the content of the speech represented by the memorials. In fact, other than permitting the POA to establish the memorials on public lands, the State has taken no action to influence the content of the speech at issue here. On these facts, the petitioners cannot show that these memorials are actually instances of government speech. Four critical factors are relevant to determining whether speech is made by the government or by a private party. First, the Court should determine the specific identity of the alleged government entity that spoke. Keller v. State Bar of Cal., 496 U.S. 1, 11 (1990). Even where state courts may find that a particular organization is a government entity for purposes of state law, the same entity is not necessarily a government entity for purposes of a federal question. Id. An entity that is funded by members dues and that does not regulate on behalf of the State is not a government entity, even if it performs important and valuable services for the State. Id. Second, the Court should ask whether the message contained in the speech is the message established by the [State] Government. Johanns v. Livestock Marketing Ass n, 544 8

16 U.S. 550, 560 (2005). Evidence for this claim can be shown through a coordinated program to promulgate the government s preferred message, including circumstances where the government has set out the overarching message and left the development of the remaining details to another entity answerable to the government. Id. at 561. Third, the existence of final approval authority by government officials is strong evidence of the existence of government speech. Id. This can be shown both by the level of involvement of government officials in crafting the message and by instances of government officials rejecting or rewriting the proposed speech. Id. Finally, the government may speak by allowing private groups to speak by displaying permanent, privately-funded monuments on public lands. Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009). In Summum, the court only indicated that permanent monuments would be presumed to represent government speech. Id. Furthermore, the Court noted that such monuments would typically represent government speech, but did not state that would always be the case. Id. The Court went on to note that the fact that governments have demonstrated selectivity in determining which monuments to accept and have, in doing so, exercised a form of editorial control over the content of the speech represented by these monuments was a necessary assumption to impute that speech to the state. Id. at (internal quotations omitted). By implication, if the government did not exercise selectivity, then the underlying assumption necessary to impute the speech to the government does not hold. Petitioners cannot show that roadside memorial crosses amount to government speech. As an initial matter, the POA is a private, non-governmental entity. ROA.3. Even if it is comprised largely of current or former government officials, it is funded by private dues and does not regulate private entities on behalf of the State. See Keller, 496 U.S. at 11 (finding the 9

17 state bar was a private entity). Therefore, any inference that the State of Greene is speaking through the POA must rely on the government s involvement in the specific instances of speech. Second, there is no evidence that the message conveyed by the memorials is established by the [State]. Johanns, 544 U.S. at 560. There is no allegation that the government participated in the planning process for the overall plan of establishing the memorials, in the design of the memorials, or in the decision about where any given memorial would be erected. The extent of state participation was granting permission to the POA to erect memorials in certain public locations. ROA.4 5. However, even this government action only resulted from an abundance of caution on the part of the POA rather than any effort by the State to control the content of the memorials; the uncontested record demonstrates that the State has allowed the roadside memorials to private citizens dating back at least five decades. Id. at 3, n.2. Third, there is no evidence that the Greene government has final approval authority over the placement of the memorials. There is no claim that State government officials reviewed the memorials for substance or on any other grounds, or that the State ever requested the POA modify or omit any aspect of the memorial. Cf. Johanns, 544 U.S. at 562 (attaching significance to government officials reviewing and rejecting proposed substance and wording of messages in finding that the message comprised government speech). In fact, the only instance of specific input noted by the lower courts was the State s comment that it neither approves nor disapproves the memorial marker. ROA.5. Taken as a whole, the fact that the relevant organization was a private entity, the lack of government control over the content of the memorials themselves, and the lack of any indicia of governmental final approval authority 10

18 over installment of the memorials all provide evidence that the memorials should be treated as private speech. Finally, the record indicates that the government did not meaningfully select the memorials in this case. While the POA did seek government permission to erect these memorials, there was a previously existing practice of constructing roadside memorials to deceased citizens in Greene, and no record that the State had previously exercised any degree of editorial control over the content of those memorials. Compare ROA.3 n.2 (noting the acquiescence of Greene authorities to private, roadside memorials since the 1960s) with Summum, 555 U.S. at (emphasizing the selectivity and editorial control exercised by municipalities as providing the rationale for imputing the speech to the state). The fact that the POA made a good faith effort to comply with apparently any relevant regulations regarding the public lands at issue should not be grounds to enjoin the POA from speaking in the first place. 1 The memorials do not represent public speech. The government neither exercised control over the content of the memorials nor did it make a meaningful choice to allow the memorials to be placed on public land to the exclusion of other speech. 2. The use of public land is not dispositive because the State established limited public forums for private speech. i. The locations of the roadside memorial crosses qualify as limited public forums. The Court has identified three different types of public forums and has defined the types of regulations the government can impose on speech in each forum. Perry Educ. Ass n v. Perry Local Educator s Ass n, 460 U.S. 37, (1983). At one end lie public forums such as parks 1 Petitioners have also characterized the memorials in question as permanent. While the Summum Court did emphasize the importance of permanence in the context of substantial stone monuments, petitioners fail to distinguish the memorials in Summum from the ad hoc, and impermanent, private roadside memorials traditionally displayed in Greene. Id. at

19 and public streets places which by long tradition or by government fiat have been devoted to assembly and debate. Id. at 45. The government is restricted to enacting content-neutral regulations governing such spaces, and courts will construe such regulations narrowly. See id. (noting that regulations must serve a compelling state interest and be narrowly drawn ). A second category designated public forums includes property that the government has opened for use by the public as a place for expressive activity, even where the forum was not traditionally open to the public. Id. (citations omitted). While the government may opt to close the forum to public expression at any time, the state is bound by the same restrictions on regulations that apply to traditional public forums so long as the forum remains open. Id. (citing Widmar v. Vincent, 454 U.S. 263, (1981). The Court has deemed these spaces as limited public forums. Id.; see also Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2250 (2015) (describing limited public forums as places where a government has reserv[ed a forum] for certain groups or for the discussion of certain topics ) (quoting Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)). At the other end of the spectrum lies public property that has not been designated a forum for public communication. Perry Educ. Ass n, 460 U.S. at 45. In addition to reasonable regulations on time, place, and manner of communication, the government may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view. Id. The state is permitted to establish a limited public forum subject to two requirements. Good News Club v. Milford Central School, 533 U.S. 98, 106 (2001). First, the government must not discriminate against speech on the basis of viewpoint. Id. (citing Rosenberger, 515 U.S. at 12

20 829). Second, the restriction must be reasonable in light of the purpose served by the forum. Id. at 107 (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806 (1985)). Thus, forum analysis is appropriate in examining government regulation of private speech on public property as the types of regulations allowed vary by forum. Sons of Confederate Veterans, 135 S. Ct. at This Court has not established a specific test to determine when a state has established a limited public forum. However, the Court has described the limited public forums as encompassing [p]ublic property which is not by tradition or designation a forum for public communication. Perry Educ. Ass n, 460 U.S. at 46. This is contrasted with both traditional open forums, including places which by long tradition or government fiat have been devoted to assembly and debate, id. at 45, and public property that is not open as a venue for private speech at all, id. at 46. The government may establish reasonable time, place, and manner regulations governing such speech, and any content-based regulations must be narrowly drawn to effectuate a compelling state interest. Id. The locations at issue here qualify as limited public forums. The Court of Appeals noted that the POA obtained permission from the State of Greene to erect additional memorial crosses on public property, including the rights-of-way adjacent to the State s roads, roadside rest areas, and the lawn outside a Greene State Police headquarter office.... ROA.4. There is no evidence that rights-of-way, roadsides, and an open lawn in front of a police barracks are traditional open forums devoted to assembly and debate. Perry Educ. Ass n, 460 U.S. at 45.. On the other hand, the fact of Greene s acquiescence to roadside memorials, including the POA s memorials, distinguishes these lands from public lands that are not designated as a forum for the public at all. Id. at 46. Instead, by allowing the placement of memorials for the narrow purpose of 13

21 recognizing the death of citizens, including police officers, Greene has established a limited public forum. ii. The existence of a limited public forum provides strong evidence that the speech is private. The fact that Greene has established a limited public forum provides strong evidence that the speech was private. The Court s jurisprudence establishing the contours of the limited public forum doctrine has focused on government restrictions of private speech on public property. See generally Good News Club, 533 U.S. 98; Rosenberger, 515 U.S. 819; Cornelius, 473 U.S 788 (each addressing state regulation of private speech on or by means of government property). The private speakers in these cases share important commonalities. These include: the private nature of the speaker, see, e.g., Rosenberger, 515 U.S. at 828, the lack of control by government entities over the content of the speech, see id. at 833 (distinguishing between public speech, which was subject to the control of the government entity, and private speech that is not supported or funded by the government), and in some cases, the religious nature of the speech itself, see, e.g., id.; Good News Club, 533 U.S. at 107 (holding that preventing a private religious organization from speaking on public property unconstitutionally infringed the organization s free speech rights). Here, the POA erected private monuments to memorialize officers killed in the line of duty. ROA.2 3. The only connection between the POA and the state was the use of public lands for some of the monuments. Id. at The POA is a private organization. Id. at 3. While it is comprised of current and former government employees, they are members of POA in their 2 The Greene State Police permitted the POA to use its logo on the memorials. ROA.4. However, Greene likely could not have asserted copyright protections over the seal anyway, so granting permission to the POA has no legal significance. See 15 U.S.C. 1052(b) (2012) (precluding registration for insignia of any state or municipality ); see also In re City of Houston, 731 F.3d 1326, (2013) (finding that the plain language of the Lanham Act prohibits registration of government insignia). 14

22 private capacity and the leadership of the POA. ROA.4. The POA has not sought government funding or approval of its message. In fact, to the extent that any outside entity has exercised control over the content of the memorials at issue, it is the families of the fallen police officers who expressly authorized the existence and content of each. B. The constitutionality of private, religious speech should be assessed under Free Speech jurisprudence. The Court has repeatedly held that private religious speech in limited public forums does not constitute an Establishment Clause problem for the government that created the forum. In Rosenberger, a state University denied a student organization access to funds because it was religious in nature. 515 U.S. at 827. The University argued in the Court of Appeals that providing the funds to the group would violate the Establishment Clause. Id. at 838. The Supreme Court held that the funds constituted a limited public forum, id. at 830, and that the Establishment Clause did not require viewpoint discrimination in limited public forums, id. at 845 ( To obey the Establishment Clause, it was not necessary for the University to deny eligibility to student publications because of their viewpoint. ). Likewise, in Good News Club, the Court held that the school system failed to raise a valid Establishment Clause claim and instead utilized the Free Speech Clause. 533 U.S. at 120 (rejecting the claim in part because it would not reflect a neutral policy toward religion to create a limited public forum and deny speech based on the religious content). The Court likewise rejected an Establishment Clause challenge in allowing religious speech in a limited public forum in Lamb s Chapel v. Center Moriches Union Free School Dist. 508 U.S. 384, 395 (1993). Therefore, the determination that the roadside constitutes a limited public forum ends the inquiry. It is not necessary, in the name of the Establishment Clause, for the government to deny the POA the ability to participate in the limited public forum because of its viewpoint. See 15

23 Rosenberger, 515 U.S. at 845. Because the government has established a limited public forum on roadsides for families to memorialize and grieve at the places where officers were killed in the line of duty, the government cannot prohibit memorials based on a possibly religious message. See Good News Club, 533 U.S. at To do so would entrench on the speaker s Free Speech rights. Id. at The memorials are protected by the Free Speech Clause. [P]rivate religious speech... is as fully protected under the Free Speech Clause as secular speech. Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995). Speech encompasses more than the simple act of speaking to cover a broad range of expressive conduct, United States v. O Brien, 391 U.S. 367, (1968), and specifically includes private organizations erecting monuments with religious significance, Pinette, 525 U.S. at 760. State action impeding free expression guaranteed under the Free Speech Clause requires the government s regulation to be narrowly tailored to further a compelling government interest. See, e.g., Citizens United v. F.E.C., 558 U.S. 310, 340 (2010) (stating the standard). The POA s actions here fall within the range of conduct that the Court has expressly recognized as speech in previous cases. Compare ROA.4 5 (describing the memorial crosses erected by the POA) with Pinette, 515 U.S. at 760 (finding that cross-shaped memorials erected on public lands by private actors are private speech protected by the First Amendment). Rather than violating the Establishment Clause, the State of Greene was actually complying with its 3 Additionally, this differentiates the case at hand from Summum. 555 U.S. at 473. There the city [n]ever opened up the Park for the placement of whatever permanent monuments might be offered by private donors. Id. Here, the limited public forum is open for whatever roadside memorials the families of slain officers use to recognize the loss of their loved ones. 16

24 obligations imposed by the First Amendment by refraining from imposing content-based restrictions on the speech permitted in the limited public forum that the State had established. 2. The Court should restrict the application of the Establishment Clause to government speech. The Court should take this opportunity to clarify that the Free Speech and Free Exercise Clauses provide the exclusive test for the regulation of private, religious speech. The Court has long recognized the tension inherent in the application of Establishment Clause to private speech that is not rightly imputed to the government. See, e.g., Pinette, 515 U.S. at 765 (opinion of Scalia, J.) ( [T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. ) (quoting Bd. of Educ. of Westside Cmty. Schools. Mergens, 496 U.S. 226, 250 (1990) (opinion of O Connor, J.)). This is the appropriate case to make this determination because the facts at hand present clear expressive conduct by private parties and de minimis state action. As the Court of Appeals noted, the lower courts have struggled to apply the test formulated in Lemon v. Kurtzman to private speech. ROA.11 n.11; see also Lemon v. Kurtzman, 403 U.S. 602, 614 (1971) (establishing the test). A bright-line rule would better reflect the language and competing purposes of the Establishment Clause on the one hand and Free Speech and Free Exercise Clauses on the other. The Establishment Clause prohibits Congress from mak[ing] a law respecting an establishment of religion. U.S. Const., Amend. I., cl. 1. The Establishment Clause s restrictions apply equally to the states. Everson v. Board of Ewing Tp., 330 U.S. 1 (1947). By its terms, the Establishment Clause encompasses action taken by government entities with regard to religion. While the Court has previously read the First Amendment to prohibit some types of private 17

25 speech, see Lemon, 403 U.S. at , these prohibitions ignore the plain command to regulate public speech and public speech only, Pinette, 515 U.S. at 765 (opinion of Scalia, J.). Further, a bright-line rule that assesses private religious speech under the Free Exercise Clause and government speech under the Establishment Clause would better align with the purpose of each clause than the current balancing test. The purpose of the Free Exercise Clause is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. Church of the Lukumi Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520, 576 (1993) (Souter, J., concurring) (quoting Sch. Dist. of Abington Tp. v. Schempp, 374 U.S. 203, 223 (1963)). The purpose of the Establishment Clause, on the other hand, is to prevent government action that has both the purpose and primary effect of... the advancement or inhibition of religion.. Lee v. Weisman, 505 U.S. 577, 602 (1992) (quoting Schempp, 374 U.S. at 222). Both clauses constrain government action that would infringe on the right of private parties to exercise their rights to engage in, or abstain from, religion, but do not contemplate the regulation of purely private acts. Finally, a ruling clarifying that the Establishment Clause should not govern private speech would comport with the Court s previous decisions regarding the circumstances under which it is appropriate to overrule inconsistent precedent. Indeed, when [the] Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854 (1992). Two of the primary factors courts should consider in making this analysis are whether the rule formulated in a prior case has proven to be intolerable simply in defying practical workability, or whether the rule is subject 18

26 to a kind of reliance that would lend a special hardship to the consequences of overruling that decision. Id. (quotations omitted). The Court has yet to formulate a clear and workable test applying the Establishment Clause to private speech. The application of the Lemon test to private speech has certain proven intolerable simply in defying practical workability. Id. This Court itself has refrained from consistent application of the Lemon test. Compare Mcreary Cty. v. A.C.L.U. of Ky., 545 U.S. 844 (2005) (applying the Lemon test) with Van Orden v. Perry, 545 U.S. 677 (2005) (eschewing the test). The situation is worse in the lower courts. See ROA.11 n.11 (noting the difficulty courts have faced in applying the Lemon test to instances of private speech); cf. Am. Atheists, Inc. v. Duncan, 637 F.3d 1095 (10th Cir. 2010) (reaching the opposite conclusion of the court below on nearly identical facts). The much-maligned test has frequently been criticized in this Court as well for its lack of clarity. See Lamb s Chapel, 508 U.S. at 398 (Scalia, J., concurring) (collecting criticism of Lemon). This lack of workability also leads inexorably to the conclusion that the reliance interests are negligible. See Amy Coney Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011, 1062 (2003) (noting that unworkable precedents are particularly unlikely to create reliance interests precisely because litigants expect the decision to be corrected). This flaw is not limited to the particulars of the Lemon test. Any application of the Establishment Clause to private speech will face a similar challenge. It speaks to government action, and specifically to actual legal coercion. Van Orden, 545 U.S. at 693 (Thomas, J., concurring). Absent state action, the Establishemnt Clause is irrelevant. Id. at Expanding its reach to encompass private conduct will necessarily require establishing a test that shares Lemon s flaws: namely that it is unworkable, unpredictable, and indeterminate. The Court 19

27 should remedy this confusion by holding that the Establishment Clause is simply not applicable to private speech. Thus, here the roadside memorial crosses should be considered under the Free Speech and Free Exercise Clauses, not the Equal Protection Clause. The roadside memorial crosses are not a result of state action. Rather they are individual expression, and should be subject to only content neutral restrictions. It may be that the State of Greene could ban all displays on the relevant lands as a neutral law of general applicability, but it certainly has no obligation to do so. See Church of the Lukumi Babalu, 508 U.S. at 531 (describing the test under the Free Exercise clause). Requiring the government to selectively bar the memorials here would is not only not required by a neutral reading of the plain text of the Establishment Clause, but it undermines both the language and the purpose of the Free Exercise Clause. II. The roadside crosses do not violate the Establishment Clause. The Respondents maintain that the roadside crosses are private speech properly considered under the Free Speech clause of the First Amendment. Supra, part I. However, should the Court disagree, the roadside memorial crosses do not violate the Establishment Clause. Under the Establishment Clause, Congress shall make no law respecting an establishment of religion. U.S. Const. amend. I. 4 The purpose of the Establishment Clause is to assure the fullest possible scope of religious liberty and tolerance for all. Schempp, 374 U.S. at 305. To tear down the roadside memorials in the name of the Establishment Clause would hinder rather than assure the scope of religious liberty and tolerance. 4 The Establishment Clause was incorporated as to the States by the Fourteenth Amendment. U.S. Const. amend. XIV. 20

28 Enforcement of the Establishment Clause requires a delicate balance. While the Establishment Clause requires some separation between church and state, total separation is not possible in an absolute sense. Lemon, 403 U.S. at 614. The Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious. Van Orden, 545 U.S. at 699 (Breyer, J., concurring). It was never intended to require callous indifference. Lynch, 465 U.S. at 673. (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952)). Rather, it forbids hostility toward any religion. Id. The Court developed several tests in an attempt to strike this delicate balance. In Lemon, the Court laid out a three-prong test to determine when a government practice violates the Establishment Clause. 403 U.S. at First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster an excessive government entanglement with religion. Id. (internal citation omitted). Over time, the Court modified the Lemon test to instead focus on whether the government has the purpose or effect of endorsing religion. Cty. of Allegheny v. A.C.L.U., 492 U.S. 573, 592 (1983). However, the Lemon/endorsement test has proven unworkable as it pertains to private speech. See, e.g., Lamb s Chapel, 508 U.S. at (Scalia, J., concurring) (collecting criticism of Lemon); see also Cmte. for Public Ed. and Religious Liberty v. Regan, 444 U.S. 646, 671 (1980) (criticizing the sisyphean task of trying to patch together the blurred, indistinct, and variable barrier of the Lemon test); A.C.L.U. of Ky. v. Mercer Cty., 432 F.3d 624, 636 (6th Cir., 2005) ( [W]e remain in Establishment Clause purgatory. ). Moreover, the Court has frequently indicated that the Lemon/endorsement test is not required. E.g., Lynch, 465 U.S. at 679 ( [W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion. ). 21

29 The Lemon test is particularly ill-suited for use in cases involving passive monuments on government grounds. Van Orden, 545 U.S. at 687 ( Whatever may be the fate of the Lemon test... we think it not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds. ). In Van Orden the plurality determined a ten commandments monument on the state capitol grounds did not violate the Establishment Clause based on the nature of the monument and...our Nation s history. Id. Breyer, concurring, wrote that in a close case the Court must apply a legal judgment test based on the purpose of the Establishment Clause and the context of the monument. Id. at Thus, the proper test here is the Van Orden contextual test. However, under either test the roadside crosses do not violate the Establishment Clause. Furthermore, using the Establishment Clause to prohibit roadside crosses memorializing the deaths of public service people killed in the line of duty would exhibit callous indifference to the service-members religious beliefs, and thus is at odds with the purposes of the Establishment Clause. A. The roadside crosses do not violate the Establishment Clause under the context and history test set forth in Van Orden. The memorial crosses context and history do not conflict with the purpose of the Establishment Clause or historical practices in our Nation. In Van Orden, a divided Court handed down four opinions upholding the display of a ten commandments statue on government property. Chief Justice Rehnquist wrote for four Justices examining the nature of the monument and the history of the Nation. Id. at 686. In the controlling concurrence, Justice Breyer acknowledged that the Establishment Clause would often produce difficult borderline cases. Id at 700. In such cases, under the concurrence, the Court should refer to the basic purposes of 5 But see McCreary Cty., 545 U.S. 844 (deciding a ten commandments display case under the Lemon/endorsement test on the same day as Van Orden). 22

30 the Establishment Clause. Id. at 698. Justice Breyer considered the circumstances of the monument s placement, the physical setting of the monument, and the amount of time the monument went unchallenged. Id. However, Justice Breyer cautioned that this was not a testrelated substitute for the exercise of legal judgment. Id. at 700. Thus, here the Court should consider a variety of factors reflecting legal judgment, not only the ones set forth in the Van Orden concurrence. As in Van Orden, the donation and placement of the roadside memorial crosses indicates that they do not violate the Establishment Clause. Likewise, the physical settings of the memorial crosses signals that that they do not violate the Establishment Clause. Moreover, the history of roadside crosses and the history of the Nation indicate that the roadside crosses do not violate the Establishment Clause. Taking these factors into account, the roadside cross memorials do not violate the Establishment Clause. 1. The circumstances of the roadside crosses donation and placement indicates that the crosses do not violate the Establishment Clause. Like the ten commandments monument in Van Orden, the roadside cross memorials communicate a secular message here, recognizing the death of a state officer in the line of duty. While the Latin cross may carry a religious message, it also has complex meaning beyond the expression of religious views. Salazer v. Bruno, 559 U.S. 700 (2010) (plurality opinion). A religious symbol is not per se an Establishment Clause violation; rather, the Court must consider how the symbol is used. Van Orden, 545 U.S. at 701 (Breyer, J., concurring). The circumstances of the placement of the ten commandments monument in Van Orden mirrors the circumstances of the placement of the roadside crosses. As here, the group that donated the monument was a private civic (and primarily secular) organization. Id. As here, the donating organization had a secular reason for donating the monument. Id. As here, the 23