No IN THE SUPREME COURT OF THE UNITED STATES

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES CONSTITUTIONAL ATHEISTS, INC., a Delaware non-profit organization, HOWARD SPRAGUE, and FLOYD LAWSON, on behalf of the organization, Petitioners, v. GREENE STATE POLICE OFFICERS ASSOCIATION, a non-profit, non-governmental organization, and 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 PETITIONER Team No. 5 Counsel for Petitioners

2 QUESTIONS PRESENTED I. Whether the cross memorials amount to expressive action on the part of the state of Greene that constitutes government speech, when the memorials are displayed on public land, incorporate official officer information and the official state symbol, and the state of Greene had the opportunity to approve or deny the memorials before they were erected. II. Whether the cross memorials violate the Establishment Clause under the First Amendment when the crosses use wholly religious means to achieve a secular goal, the crosses have no historical foundation, the religious history of the Latin cross is significant, and the crosses are not part of a larger display. i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 A. Statement of the Facts... 1 B. Procedural History... 2 C. Standard of Review... 2 SUMMARY OF THE ARGUMENT... 3 I. THE STATE S DECISION TO ALLOW THE MEMORIAL CROSSES IS AN EXPRESSIVE ACT THAT CONSTITUTES GOVERNMENT SPEECH A. The cross memorials, given the historical and cultural role of monuments, are properly analyzed as mediums for government speech because they are monuments on public land B. The memorials can be reasonably associable to the state of Greene because they (1) are displayed on public land, and (2) bear official officer information and the state symbol C. The state of Greene exercised control over the message conveyed by the memorials because the POA requested permission from the State of Greene before erecting the memorials II. THE STATE OF GREENE S DECISION TO ALLOW THE CROSS MEMORIALS AT ISSUE HERE VIOLATES THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT A. The State of Greene has violated the purpose prong of the Lemon test because the construction of these mammoth crosses on public land has a predominantly religious purpose B. The state of Greene has violated the effect prong of the Lemon test by allowing the construction of the memorial crosses on public land because the crosses have the effect of conveying a preference for a particular religion ii

4 i. The cross memorials do have the impermissible effect that the state of Greene is endorsing Christianity because the memorials do not have a historical foundation and the Latin cross has a significant religious history ii. The context of the cross memorials does have the impermissible effect that the state of Greene is endorsing Christianity because they stand alone on public grounds and are not part of a larger display C. The state of Greene has also violated the entanglement prong of the Lemon test because it allows the display of the crosses to the exclusion of all other religious beliefs and maintains the area on which the crosses stand CONCLUSION CERTIFICATE OF SERVICE iii

5 TABLE OF AUTHORITIES Supreme Court Cases Agostini v. Felton, 521 U.S. 203, (1997) Capitol Square Rev. & Advisory Board v. Pinette, 515 U.S. 753, 792 (1995)... 16, 17, 19 County of Allegheny v. ACLU, 492 U.S. 573, 618(1989)... 16, 20, 21, 22 First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 948 (1995)... 2 Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 395 (1993) Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)... 13, 14, 16, 23 Lynch v. Donnelly, 465 U.S. 668, 690 (1984)... passim McCreary County v. ACLU, 545 U.S. 844, 860 (2005)... 15, 16, 17 Ornelas v. United States, 517 U.S. 690, 705 (1996)... 2 Pleasant Grove City v. Summum, 555 U.S. 460, (2009)... passim Rust v. Sullivan, 500 U.S. 173 (2009)... 5 Salazar v. Buono, 559 U.S. 700, 705 (2010)... 18, 19 Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000) Van Orden v. Perry, 545 U.S. 677, 692 (2005) Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct (2015)... passim Federal Circuit Cases ACLU v. Rabun Cty. Chamber of Commerce, Inc., 698 F.2d 1098, (10 Cir. 1983) Am. Humanist Ass'n v. Md.-National Capital Park & Planning Comm'n, 874 F.3d 195, 201 (4th Cir. 2017)... 22, 24 American Atheists Inc. v Davenport, 637 F.3d 1095, (10th Cir. 2010)... passim iv

6 Gonzales v. N. Twp. of Lake Cty., 4 F.3d 1412, (7th Cir. 1993) Gonzales v. North Township of Lake County, Ind., 4 F.3d 1412, 1418 (7th Cir. 1993) Green v. Haskell Cty. Bd. of Comm'rs, 568 F.3d 784, (10th Cir. 2009) O'Connor v. Washburn Univ., 416 F.3d 1216, (10th Cir. 2005)... 15, 16, 21 Robinson v. City of Edmond, 68 F.3d 1226, 1232 (10th Cir. 1995)... 19, 21 Smith v. Cty. of Albemarle, 895 F.2d 953, 958 (4th Cir. 1990) Sutliffe v. Epping School Dist., 584 F.3d 314 (1st Cir. 2009)... passim Trunk v. City of San Diego, 629 F.3d 1099, 1125 (9th Cir. 2011)... 8, 19 Constitutional Amendments U.S. Const. amend. I... 5, 14 Secondary Sources Merriam-Webster Online Dictionary (21 Sept. 2018)... 5 v

7 STATEMENT OF THE CASE A. Statement of the Facts History of the Memorial Crosses. In 2002, the Greene State Police Officers Association ( POA ), a non-governmental, non-profit organization, initiated a cross memorial project to honor police officers who had passed away in the line of duty. R. at 3. The memorial crosses stand twelvefeet high with six-foot horizontal cross-bars. R. at 3. The horizontal cross-bar bears the fallen officer s name, rank, and badge number and underneath the bar is a large illustration of the Greene State Police logo. R. at 4. At the bottom of the cross is a small plaque which shows a picture and biographical information of the officer. R. at 4. Frank Reagan and Thomas Magnum, both former law enforcement officers and members of the POA, designed the crosses, which the POA subsequently approved. R. at 4. Mr. Magnum stated the Latin cross was chosen because they believed it was the only symbol able to convey the messages of death, honor, remembrance, gratitude, sacrifice, and safety. R. at 4. The POA stated that the crosses large size can be attributed to the fact that drivers would be passing by at a speed of 65-miles-per-hour, and thus, the large size was necessary to ensure all of the information was conveyed. R. at 4. The Greene State Police did not object to the use of their symbol that was attached and displayed on the memorial crosses. R. at 4. Further, before the POA was legally able to place the crosses on public land, it had to seek permission from the State of Greene. R. at 4. The state of Greene, despite claiming that it neither approves nor disapproves of the crosses, for the past fourteen years has allowed twenty-eight of them to be placed adjacent to state roads, rest areas, and on the lawn of the Greene State police regional headquarters. R. at

8 B. Procedural History Petitioners, Howard Sprague and Floyd Lawson, on behalf of the Constitutional Atheists, Inc., brought suit in the District Court for the Northern District of Greene against Barney Fife and Otis Smith, state of Greene employees, who were responsible for the authorization of the use of the Greene State Police s emblem on the memorial crosses and the placement of such crosses on state property. R. at 5. On authorization from the District Court, the POA joined the suit as a partydefendant. R. at 5. Petitioners sought an injunction to order the removal of the memorial crosses from state property, arguing that the memorial crosses presence on state land violated their constitutional rights under 42 U.S.C and the State of Greene Constitution. R. at 5. Both parties sought summary judgement, and the District Court granted Petitioner s motion, finding that the memorial crosses did have the effect of endorsing religion, and, thus, was a violation of the Establishment Clause. R. at 3. Respondent s appealed to the Circuit Court of Appeals for the Fourteenth Circuit. R. at 5. The Fourteenth Circuit reversed the decision, reasoning that the memorial crosses did not have the effect of supporting religion, therefore, finding that no violation had occurred. R. at 3. The petitioners appealed to this Court, and the petition for writ of certiorari was granted. R. at 18. C. Standard of Review This case involves two constitutional issues, and as issues of law, this Court s review is de novo. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 948 (1995). In reviewing a case de novo, the weight due to a trial court s finding is zero. Ornelas v. United States, 517 U.S. 690, 705 (1996) (J. Scalia, dissenting). 2

9 SUMMARY OF THE ARGUMENT The Establishment Clause of the First Amendment of the Constitution limits how the federal government may act towards religion, especially when the government is expressing an opinion regarding religion. This regulatory action in turn governs the individual states through the Fourteenth Amendment. The issue in this case is two-fold. First, it must be determined whether allowing the monuments to be displayed on state land is expressive action that constitutes government speech. The second question to be addressed is whether the act of allowing such predominantly religious monuments on state land violates the Establishment Clause of the First Amendment. For the subsequent reasons, petitioners urge this Court to find that the displaying of the monuments on state land is government speech, and that such speech is in violation of the Establishment Clause. Recently, in Pleasant Grove City, this Court established that the government is capable of expression. To determine when the government may be expressing itself, this Court highlighted three factors to consider: (1) the history of the expressive act; (2) the government s association with the expressive act and its message; and (3) the government s control over the message conveyed. It is contended that, by allowing the cross memorials in question here, the government was engaging in expressive conduct; despite the fact that the monuments were donated and maintained by the POA. Taken together, the history of monuments on public land, the state of Greene s association with the memorials in question, and the state s control by way of final approval authority via a formal approval process, strongly suggest that the state of Greene was expressing itself. Turning to the second question, the cross memorials have violated the Establishment Clause. Establishment Clause challenges, per this Court, are governed primarily by the test set 3

10 out in Lemon v. Kurtzman. The test looks at: (1) the purpose; (2) the effect; and (3) whether there was any excessive government entanglement. To be constitutional, a negative answer must be given to all three prongs. In this case, the cross memorials have failed all three. While the government professes a secular purpose in allowing the crosses to be erected on public land, it utilized wholly religious means to achieve an allegedly secular goal, when secular means would have sufficed to reach the same end. Thus, the State of Greene has failed the purpose prong. Further, the State of Greene has also failed the effect prong. The effect of the crosses on a reasonable observer would give the impression that the state of Greene was endorsing a specific religion because of the substantial religious history behind the Latin cross and because the crosses are not part of a larger display. Thus, both the history and context of the memorials give the impression that the state is promoting Christianity, and, therefore, violates the effect prong. Lastly, the State of Greene has also failed the excessive entanglement prong because the state has allowed the crosses on public land in a manner that dominates its surrounding to the exclusion of everything else. Therefore, Petitioners respectfully request that this Court reverse the decision of the Fourteenth Circuit and find that the memorials constitute government speech and violate the Establishment Clause of the First Amendment. 4

11 I. THE STATE S DECISION TO ALLOW THE MEMORIAL CROSSES IS AN EXPRESSIVE ACT THAT CONSTITUTES GOVERNMENT SPEECH. Expression is defined as an act, process, or instance of representing in a medium (such as words). expression. Merriam-Webster Online Dictionary (21 Sept. 2018). It is common to most organisms on this planet in some form or another. It can be verbal, like when one uses words, or it can be physical by way of gestures; it can be direct, like when the person addresses a group of people, or by way of a medium, like a commercial on T.V., or a sign on the side of the road. Regardless of how one expresses oneself, though, it is always intended to convey meaning. Recently, this Court established that the government is capable of expression; that it is not only capable of expression but within its right to take a position, without fear of reproach or censure; much like other persons except, that is, on the topic of religion, where it is limited by the Establishment Clause of the First Amendment 1. Pleasant Grove City v. Summum, 555 U.S. 460, (2009); U.S. Const. amend. I. The government can express itself directly or it can express itself indirectly by way of a private individual or organization (i.e. a non-profit). Pleasant Grove City, 555 U.S. at 468. And, the mediums through which the government speaks are quite varied: it can speak through monuments, Pleasant Grove City v. Summum, 555 U.S. 460 (2009), license plates, Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct (2015), websites, Sutliffe v. Epping School Dist., 584 F.3d 314 (1st Cir. 2009), and even the programs it desires to fund, Rust v. Sullivan, 500 U.S. 173 (2009). At times, it can be difficult to discern whether the government is engaging in [its] own expressive conduct... [o]r... providing a forum for private speech[.] Pleasant Grove City, A thorough analysis of the relationship between government expression (i.e. government speech) and the Establishment Clause is forthcoming in Section II of this brief. 5

12 U.S. at 467, 470. Therefore, in order to determine whether the government is speaking this Court has considered three factors: (1) the history of the expressive action; (2) the government s association with the expressive action; and (3) the degree of the government s control over the message conveyed. Pleasant Grove City, 555 U.S. at ; Walker, 135 S. Ct. at The following analysis will consider each factor discretely, in order to show that allowing the cross memorials to stand can be reasonably interpreted as an expressive action by the government: government speech A. The cross memorials, given the historical and cultural role of monuments, are properly analyzed as mediums for government speech because they are monuments on public land. An important part of determining whether the government is speaking through an expressive action consists of looking at the history of the specific act to see if throughout time it has served as a medium through which the government has traditionally spoken. Pleasant Grove City v. Summum, 555 U.S. 460, (2009); Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, (2015). For example, in Pleasant City Grove, this Court looked at the social and cultural history of monuments on public land to determine that monuments (a) by definition... [are] designed as a means of expression, and (b) have been long used by governments to speak to the public. Pleasant Grove City, 555 US at 470. Specifically, this Court held that [s]ince ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Id. And that a government... construct[s]... a monument... to convey some thought or instill some feeling in those who see [it]. Id. Additionally, this Court held that a government has historically spoken just as effectively through privately financed and donated monuments that the government accepts as they do through monuments it commissions and erects on its own. Id. at

13 In Walker, this Court looked to the historical development of the license plate to determine that the license plates and specifically specialty design plates were a form of expressive action that constituted government speech. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, (2015). This Court looked at how, starting in 1917, a trend emerged in which states (Arizona being the first) began to include things like stamps in the shape of the state and slogans on their plates; then states began to create specialty plates, and eventually allow for what are known as vanity plates. Id. at Yet, at each stage of development, the issuance of the license plates had always been pursuant to [the respective state s] statutory scheme [and thus] conveyed government speech. Id. at 2246, The cross memorials in question here, as per the Respondents, are monuments, R. at 3, which puts them squarely within the analysis proffered by this Court in Pleasant Grove City. Therefore, given that [g]overnments have long used monuments to speak to the public[]..., Pleasant Grove City v. Summum, 555 U.S. at 470, (2009), our analysis begins with a strong presumption that these memorials are government speech. Following this Court s logic in Pleasant Grove City, the memorials were erected to convey some thought or instill some feeling in those who see [it]. Pleasant Grove City, 555 U.S. at 470. The Respondents claim that because the memorials were privately commissioned and donated, and are privately owned and maintained at the moment, that they constitute the Respondent s private speech. R. at 5 6. Yet, in Pleasant Grove City, this Court held that the government can effectively express itself through private speakers, or privately donated monuments. Id. at For example, the Statue of Liberty was commissioned and donated by the French, but the messages of hope, liberty, and the extolling of democratic principles it expresses are most certainly ones our nation has made its own. Id. at 471. And so, it does not 7

14 follow that simply because the memorials are privately donated and maintained, that they cannot be reasonably interpreted by a passerby for whom they were intended as an expressive action by the State of Greene: government speech. Additionally, in subsequent cases dealing with similar cross memorials, the courts have consistently treated these memorials as monuments expressing government speech. See American Atheists Inc. v Davenport, 637 F.3d 1095, (10th Cir. 2010) (where, as monuments, cross memorials were determined to be government speech); See also Trunk v. City of San Diego, 629 F.3d 1099, 1125 (9th Cir. 2011), (where 43-foot cross, erected by the city of San Diego, constituted government speech that conveyed an impermissible religious message). Taking it back to the central dilemma proposed by this Court in Pleasant Grove City, it is crucial that one asks oneself whether it would be more likely that a viewer would interpret the memorials as government speech or private speech? Pleasant Grove City, 555 U.S. at 467, 470. Consider: (1) they are monuments, and as such have been traditionally viewed by the public as government speech; (2) they are erected on public land, outside of an official public agency which could lead a passerby to assume that the crosses were erected by, if not the official state, then by the official state agency; and (3) there s no evidence in the record that the crosses bear any physical indicators that would inform a viewer that they are private monuments. Therefore, it is likely that a passerby would look at the monuments and reasonably conclude that the monuments were an expressive act on the part of the State of Greene: government speech. B. The memorials can be reasonably associable to the state of Greene because they (1) are displayed on public land, and (2) bear official officer information and the state symbol. When determining the degree of association between the government and the expressive act, this Court and the lower courts have looked to the surrounding circumstances to conclude that the expression can be reasonably associated to the government. Pleasant Grove City v. Summum, 8

15 555 U.S. 460, 472 (2009); Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2248 (2015). For example, in Pleasant Grove City, this Court looked at the location of the monuments to determine that the monuments in question were reasonably associable to the government. Pleasant Grove City, 555 U.S. at 472. In Walker, this Court looked at the content of Texas license plates and the administration thereof, to determine that license plates conveyed messages that were reasonably associable with the State of Texas. Walker, 135 S. Ct. at And in Sutliffe v. Epping School District and American Atheists, Inc. v. Davenport, the circuit courts echoed this content analysis when they looked to the content of a website and an emblem placed on a cross memorial (not unlike the monuments in question), respectively, to determine that the messages conveyed by the website and the memorials were reasonably associable to the government. Sutliffe v. Epping School District, 584 F.3d 314, 331 (1st Cir. 2009); American Atheists, Inc. v. Davenport, 637 F.3d 1095, (10th Cir. 2010). In Pleasant Grove City, this Court reasoned that persons who observe donated monuments routinely and reasonably interpret them as conveying some message on the property owner s behalf. Pleasant Grove City, 555 U.S. at 472 (emphasis added). Additionally, it also reasoned that [p]ublic parks are often closely identified with the government unit that owns the land... [because they]... commonly play an important role in defining the identity that a city projects to its own residents and to the outside world. Id. Together, these considerations led this Court to conclude that the monuments on public lands owned by the government convey messages that are reasonably associable to the government, constituting government speech. Id. In Walker, this Court pointed out that the Texas license plates carry a silhouette of the state along with the word TEXAS in capital letters. Walker, 135 S. Ct. at Additionally, this Court observed that the Texas license plate registry was always administered by the state of Texas: 9

16 it requires them, issues them, dictates how they must be displayed, and how old ones must be discarded. Id. Taken together, these facts were sufficient to convince this Court that the messages conveyed on Texas license plate were reasonably associable to the State of Texas, and constituted government speech. Id. at In Sutliffe, the circuit court highlighted that the nature of the website s content was informational and meant to educate the visitor of the website about the Town. Sutliffe, 584 F.3d at 332. Given that the town had established the site, administered it, and chosen to limit the content of the website to just informational content about the town, the First Circuit concluded that the message conveyed by the website was one reasonably associable to the town of Epping, constituting government speech. Id. at Similarly, in American Atheists, the 10th Circuit emphasized the contents of the cross memorials made their message reasonably associable to the state of Utah because it (much like the cross memorials at issue) displayed the official Utah Highway Patrol (UHP) insignia. American Atheists, Inc. v. Davenport, 637 F.3d 1095, (10th Cir. 2010). The 10th Circuit held that UHP s insignia emblazoned on the memorial sent a powerful message from which Utah could not disassociate itself. Id. Turning to the facts in the attendant case, there is plenty of evidence demonstrating that the crosses can be reasonably associated with the State. First, in Pleasant Grove City, this Court establishes that there is a strong presumption that a property owner is associated with, and approves of the message a monument displayed on their land communicates. Pleasant Grove City, 555 U.S. at 472. In the attendant case, the crosses stand along public highways with two directly in front of the police headquarters. R. at 4 5. As such, according to the precedent set by this Court, the 10

17 memorials carry a strong presumption of association with the state of Greene, who owns the land on which the memorials stand. Second, Walker, Sutliffe, and American Atheists established that the contents of the message itself can help to determine who is expressing it. Walker, 135 S. Ct. at 2248; Sutliffe, 584 F.3d at 332; American Atheists, Inc., 637 F.3d at The crosses in question contain: (1) name, rank, badge number ; (2) a biographical plaque; and (3) a large, 12 by 6 emblem of the state s Phoenix symbol right in the middle of the cross. R. at 3. The name, rank, and badge number are administrational and informative content, resembling the information analyzed in Walker and Sutliffe, which was held to be associable to the government. Walker, 135 S. Ct. at 2248; Sutliffe, 584 F.3d at 332. Just like the license plates in Walker, and the content of the website in Sutliffe, the state of Greene by way of its State Police Department decides who gets to be a police officer, issues badge numbers, and determines rank. It is not argued that the biographical plaque conveys anything more than the personal information of the officer, but the emblem that sits in the center of the cross, resembles the emblem in American Atheists because both emblems carry an official symbol: in American Atheists the symbol was that of the Utah Highway Patrol, American Atheists, Inc., 637 F.3d at 1111, and here it s the official State symbol of the Phoenix. R. at 4, n. 4. If in that instance, the 10th Circuit held that the symbol was strong of evidence of association with the state of Utah, Id. at , then it follows that the symbol of the Phoenix on these memorials is strong evidence of association with the state of Greene. Thus, would it be reasonable to associate the message conveyed by these memorials to the state of Greene with the crosses? Yes, considering that (1) most crosses are on public lands, with two in front of the police headquarters; and (2) the crosses bear an emblem that incorporates the 11

18 official state symbol along with other official officer information, the monuments convey a message that is reasonably associable to the government, government speech. C. The state of Greene exercised control over the message conveyed by the memorials because the POA requested permission from the State of Greene before erecting the memorials. Where the government exercises final approval authority over an expressive action, the government effectively controls the message conveyed thereby. Pleasant Grove City v. Summum, 555 U.S. 460, 472 (2009). Often times final approval authority is exercised via a formal approval process. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2247 (2015); Sutliffe v. Epping School District, 584 F.3d 314, (1st Cir. 2009). At other instances such control can be inferred from the very act of expression. Pleasant Grove City, 555 U.S. at 472; American Atheists, Inc. v. Davenport, 637 F.3d 1095, (10th Cir. 2010). In Pleasant Grove City, this Court highlighted the formal approval process, and the established criteria of acceptance that the city of Pleasant Grove had implemented, to determine that the city in that instance controlled the message that the potential, privately donated monuments would convey. Pleasant Grove City, 555 U.S. at 465, 471. In Walker, this Court found that the state of Texas controlled the messages conveyed on its specialty license plates because a state law established that all specialty designs required formal state approval. Walker, 135 S. Ct. at Similarly, in Sutliffe, the First Circuit found the town of Epping to be in control of the message conveyed by their website because the town had established the site, maintained it, and limited the content featured on the site to informational content about the town of Epping. Sutliffe, 584 F.3d at 330. On the other hand, in American Atheists, Inc., the Tenth Circuit found the state of Utah to be in control of the message conveyed by virtue of allowing the memorials to stand, despite the state s claim that it neither formally approved nor disapproved of them. American Atheists, Inc., 12

19 637 F.3d at In Pleasant Grove City, this Court established that, regardless of whether the government has formally endorsed or approved of a monument, in allowing a donated monument to be displayed, the government provide[s] a more dramatic form of adoption than [any] sort of formal endorsement.... Pleasant Grove City, 555 U.S. at 474. Thus, the Tenth Circuit applied this holding and found that the state of Utah was in control of the message conveyed by the memorial monuments because, even if Utah had not formally approved the memorials, it had allowed them to stand. American Atheists, Inc., 637 F.3d at Initially, the record shows that the State of Greene did have final approval authority. R. at 4. Even though the first cross was erected without consulting the State of Greene, the POA requested, and was given permission by the State to erect the subsequent crosses. R. at 4. Thus, it becomes clear that not only does the State of Greene become associated with the monuments by allowing them to stand, it effectively controlled the message because it always had the option to not permit the crosses altogether. Although a decision to allow is different from a formal approval process and creating criteria for acceptance, according to this Court s holding in Pleasant Grove City, to allow is to approve and accept. Pleasant Grove City, 555 U.S. at 474. Therefore, the ability to accept or deny demonstrates a high degree of control over the message conveyed on the part of the state of Greene. II. THE STATE OF GREENE S DECISION TO ALLOW THE CROSS MEMORIALS AT ISSUE HERE VIOLATES THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT. While a given law or act may not establish a specific state religion, such a law or act can respect a certain religion in such a way that crosses the line, and thus, becomes a step that leads to establishment, and, therefore, offends the First Amendment. See Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). At the outset, the Petitioners First Amendment claims establish that the state 13

20 government of Greene has endorsed a specific religion, in direct violation of the Establishment Clause of the United States Constitution. The First Amendment specifically states that Congress shall make no law respecting an establishment of religion. U.S. Const. amend. I. Due to the Fourteenth Amendment, these substantive limitations are thus placed on the legislative powers of the States and their political subdivisions. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000). This Court has stated that the test set out in Lemon v. Kurtzman is still the controlling precedent for reviewing Establishment Clause challenges. Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 395 (1993). See also Lemon v. Kurtzman, 403 U.S. 602 (1971). In Lemon, this Court established a three-prong test to determine whether a state government has violated the principles guaranteed by the Establishment Clause: if the State s action violates just one of these tests, the state s action must be found to be unconstitutional. Green v. Haskell Cty. Bd. of Comm'rs, 568 F.3d 784, (10th Cir. 2009). The test set out in Lemon is as follows: 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 excessive government entanglement. Lemon, 403 U.S. at In Lynch v. Donnelly, Justice O Connor articulated a modification, of the Lemon test, known primarily as the Endorsement test, which made inquiries of alleged violations of the Establishment Clause case-specific, looking to the history and context of a particular display. Lynch v. Donnelly, 465 U.S. 668, 690 (1984). The Establishment Clause thus prohibits a state government from enacting legislation and displaying monuments that have the primary purpose or effect of endorsing a specific religion. In this case, while the state government of Greene has stated that they neither approve nor disapprove 14

21 of the memorials, its primary purpose in allowing the memorials was a religious one; and these actions, additionally, have the effect of promoting a specific religion. For the following reasons, the Fourteenth Circuit incorrectly found that the Establishment Clause has not been violated in this case. A. The State of Greene has violated the purpose prong of the Lemon test because the construction of these mammoth crosses on public land has a predominantly religious purpose. The Respondents have violated the purpose prong of the Lemon test because in allowing the assembly of a large, purely Christian symbol to memorialize their fallen officers, the State of Greene has used solely religious means to achieve an allegedly secular goal. The crucial question under the first prong of the Lemon test, is whether the government's actual purpose is to endorse or disapprove of religion. O'Connor v. Washburn Univ., 416 F.3d 1216, (10th Cir. 2005) (internal quotations omitted). This Court has held that [m]anifesting a purpose to favor one faith over another, or adherence to religion generally, clashes with the understanding, reached... after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens. McCreary County v. ACLU, 545 U.S. 844, 860 (2005). In McCreary County v. ACLU, executives of McCreary county posted a collection of the Ten Commandments on the walls of their courthouse. Id. at 851. After an injunction was granted for the removal of the Ten Commandments, the county then added to the walls the Declaration of Independence and the Bill of Rights among other patriotic symbolisms. Id. at 856. The county titled the collection The Foundations of American Law and Government Display. Id. This Court, however, ultimately held that the selection of the posted material did not suggest a clear theme that might prevail over evidence of the continuing religious object. Id. at 872. Thus, this Court 15

22 held the display unconstitutional due to the finding of a predominantly religious purpose behind the Counties [] display. Id. In this case, the POA chose a large, white Latin cross to memorialize fallen officers. R. at 4. The POA has stated that they chose the cross to convey the message of death, honor, remembrance, gratitude, sacrifice, and safety. R. at 4. However, the purpose prong of the endorsement test focuses on the intent of the government actor in displaying a particular work of art, not on the intent of the artist in creating the work. O Connor, 416 F.3d at In her concurrence in Lynch v. Donnelly, Justice O Connor stated that [t]he purpose prong of the Lemon test requires that a government activity have a secular purpose. That requirement is not satisfied, however, by the mere existence of some secular purpose when dominated by religious purposes. Lynch, 465 U.S. at Further, in his concurrence in Lemon v. Kurtzman, Justice Brennan laid out a test to determine whether the government s purpose was constitutional. Lemon, 403 U.S. at 643. Justice Brennan stated, what the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which... (c) use essentially religious means to serve governmental ends, where secular means would suffice. Id. This test was further promulgated in County of Allegheny v. ACLU, in the majority opinion, when this Court stated that [w]here the government's secular message can be conveyed by two symbols, only one of which carries religious meaning, an observer reasonably might infer from the fact that the government has chosen to use the religious symbol that the government means to promote religious faith. County of Allegheny v. ACLU, 492 U.S. 573, 618 (1989). This Court has affirmed that the Latin cross is the principal symbol of Christianity around the world... Capitol Square Rev. & Advisory Board v. Pinette, 515 U.S. 753, 792 (1995). 16

23 The State of Greene has pointed to the fact that the crosses have the fallen officer s name, and badge number printed on the cross, as well as a small plaque containing a picture of the officer. However, this case is similar to McCreary because the addition of secular items to the colossal crosses are not enough to prevail over evidence of the continuing religious object. McCreary, 545 U.S. at 872. If the state s purpose in allowing the assembly on public grounds was to honor fallen police officers, this purpose could have been achieved in a manner that was not mainly religious. Other secular symbols, such as a heart, badge, or flag could convey the same message. Analyzing the state of Greene s purpose under the foundation laid by Justice Brennan, the other secular symbols to commemorate the fallen soldiers would have sufficed. Thus, secular means of pursuing an allegedly secular goal were not unavailing in this case. The purpose of the crosses, while having an allegedly secular goal, were created in a purely religious manner. Accordingly, this court should find that the State of Greene has a predominantly religious purpose in allowing the erection of these crosses on public land. B. The state of Greene has violated the effect prong of the Lemon test by allowing the construction of the memorial crosses on public land because the crosses have the effect of conveying a preference for a particular religion. The state of Greene has violated the effect prong of the Lemon test because a reasonable observer would construe the crosses as an endorsement by the State of Greene for a particular religion, in direct violation of the Establishment Clause. The effect prong of the Lemon test asks whether a reasonable observer, aware of the history and context of the forum would find the display had the effect of favoring or disfavoring a certain religion. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 779 (1995) (O'Connor, J., concurring) (emphasis added). The reasonable observer s awareness is not limited to the information gleaned simply from viewing the challenged display. Id. at 780. Thus, both 17

24 the history and context of the displays must be analyzed in order to determine whether there is a violation of the effect prong of the Lemon test. i. The cross memorials do have the impermissible effect that the state of Greene is endorsing Christianity because the memorials do not have a historical foundation and the Latin cross has a significant religious history. The cross memorials at issue here violate the effect prong of the Lemon test because they are not part of a substantial historical founding and the history of the Latin cross conveys a religious message. The history of a monument can affect the constitutionality of an alleged Establishment Clause violation. Lynch, 465 U.S. at When determining the effect of a monument on an observer, the monument or memorial should not be viewed in isolation and should be judged based on its own unique circumstances. Id. In Van Orden v. Perry, this Court found that a monolith of the Ten Commandments, standing six-feet high and three and a half feet wide located on Texas State Capitol, did not violate the Establishment Clause. Van Orden v. Perry, 545 U.S. 677, 692 (2005). This Court s finding in this case was largely due to the role played by the Ten Commandments in our Nation s heritage, and the permissibility of government displays acknowledging that history. Id. at 693. Further, in Salazar v. Buono, a Latin cross was placed in a remote section of the Mojave Desert in 1934 by private citizens. Salazar v. Buono, 559 U.S. 700, 705 (2010). The citizens purpose and intent was to honor the American soldiers who had perished in World War I. Id. Congress eventually, by statute, designated the cross and the surrounding land as a national memorial commemorating United States participation in World War I and honoring the American veterans of that war. Id. at 709. The respondent sought an injunction to remove the cross as a violation of the Establishment Clause, which the lower courts granted. Id. at 707. On appeal, this 18

25 Court remanded the case, finding that [t]ime also has played its role. The cross had stood in Sunrise Rock for nearly seven decades before the statute was enacted. By then, the cross and the cause it commemorated had become entwined in the public consciousness. Id. at 716. This Court concluded that it was reasonable to interpret the congressional designation as giving recognition to the historical meaning that the cross had attained. Id. (emphasis added). Conversely, in Trunk v. City of San Diego, the Eleventh Circuit found that a large cross located on a federally owned, war memorial site was not constitutional. Trunk v. City of San Diego, 629 F.3d 1099, 1121 (11th Cir. 2011). The Eleventh Circuit here focused on the history of the particular cross which stretched back more than five decades. Id. at The court observed that when Mount Soledad was chosen as the site for the cross, it was due to the reason that the site was "a fitting place on which to erect an emblem of faith." Id. at The court held that the fact that the Memorial also commemorates the war dead and serves as a site for secular ceremonies honoring veterans could not overcome the effect of its decades-long religious history. Id. at The finding of the Eleventh Circuit that the Latin Cross has a historical, religious meaning is substantiated by the holdings of other circuits finding the same reasoning. See Robinson v. City of Edmond, 68 F.3d 1226, 1232 (10th Cir. 1995) (finding the religious significance and meaning of the Latin or Christian cross are unmistakable. ); see also Gonzales v. North Township of Lake County, Ind., 4 F.3d 1412, 1418 (7th Cir. 1993) (acknowledging that the Latin cross is an unmistakable symbol of Christianity. ) This Court as well has held the same. See Capitol Square, 515 U.S. at 792 (finding that the Roman cross is the principal symbol of Christianity around the world. ). 19

26 This case differs from both Van Orden and Salazar as the crosses at issue here have no historical significance. The first cross was placed only in R. at 4. The sites of these memorials play no role in honoring our nation s heritage, nor do they commemorate a significant, state historical event. Due to the lacking historical precedent, the use of the crosses in memorializing fallen state police officers with the state of Greene s symbol on them does give the impermissible effect that the government of the state of Greene endorses Christianity. A reasonable observer, driving past the crosses on the highway or seeing them on the police headquarter grounds, would be given the impression that the state government of Greene was endorsing Christianity due to the lack of historical precedent and the history of the Latin cross. ii. The context of the cross memorials does have the impermissible effect that the state of Greene is endorsing Christianity because they stand alone on public grounds and are not part of a larger display. The cross memorials at issue here are not part of an exhibit or presentation. They stand alone on the sides of public highways and in front of the police regional headquarters. R. at 4. While adorned with some secular symbolisms, the use of these symbols does not negate the overarching religious spirit of the cross. Thus, by allowing the assembly of the crosses on said lands gives the effect to the reasonable observer that the state government of Greene is endorsing Christianity. Under the effect prong of the Lemon analysis, the context of the monument plays a role in the determination of the constitutionality of such a display. County of Allegheny, 492 U.S. at 598. In Lynch v. Donnelly, this Court addressed the constitutionality of a crèche located in a city s Christmas display. Lynch, 465 U.S. at 670. The city in the case had a tradition of putting up a display for Christmas, that included a Santa Claus house, reindeer pulling Santa s sleigh, candystriped poles, a Christmas tree, carolers... and the crèche... Id. This Court rejected the argument 20

27 that the primary effect of the crèche is to confer a substantial and impermissible benefit on religion. Id. at 680. This Court held that the display of the crèche in this context was constitutional and whatever benefit it potentially conferred to one religion was at most indirect, remote, and incidental. Id. at 683. Further cases that have held the religious objects to be constitutional have rested on the principal that the controversial pieces were all part of a larger display. See O Connor v. Washburn Univ., 416 F.3d 1216 (10th Cir. 2005) (holding a statute of a bishop entitled Holier Than Thou located on a college campus to be constitutional because it was displayed with other statutes and was in a museum-like setting). But see ACLU v. Rabun Cty. Chamber of Commerce, Inc., 698 F.2d 1098, (10 Cir. 1983) (finding a thirty-five-foot cross to be unconstitutional when it stood alone in a state park); Robinson v. City of Edmund, 68 F.3d 1226, 1232 (10th Cir. 1995) (finding a city seal that contained four quadrants, only one of which depicted a Latin Cross, violated the Establishment Clause, where cross was prominent feature of the seal). In County of Allegheny v. ACLU, this Court again addressed the constitutionality of a county s display of a creche. County of Allegheny, 492 U.S. at The creche in question was located inside the county courthouse on the Grand Staircase which was the main and most beautiful part of the building. Id. at 599. Further, the creche was not part of a larger display, but stood alone being the single element of the display. Id. The county argued that the creche bore a sign which disclosed the ownership of the creche to a Roman Catholic organization, and thus, did not give the effect that it was promoting religion. Id. at 600. However, this Court held that this did not alter the conclusion that the creche was unconstitutional, and found on the contrary, the sign simply demonstrates that the government is endorsing the religious message of that organization, rather than communicating a message of its own. Id. 21

28 In American Humanist Association v. Maryland- National Capital Park & Planning Commission, the Fourth Circuit addressed the constitutionality of a forty-foot cross located on public land. Am. Humanist Ass'n v. Md.-National Capital Park & Planning Comm'n, 874 F.3d 195, 201 (4th Cir. 2017). The cross at issue here had a plaque at the base of the cross which displayed the names of fallen soldiers from World War I, and had the words valor, endurance, courage, and devotion inscribed on the cross s base. Id. at 208. The court observed, however, that the cross was the largest monument in the area, the other monuments being only ten feet and located approximately two-hundred feet from the cross. Id. at 209. The court found that a reasonable observer, while knowing that the cross was dedicated to fallen soldiers, could not also help to notice that: [T]he Cross is the most prominent monument in the Park and the only one displaying a religious symbol. Further, the reasonable observer would know that a Latin cross generally represents Christianity. These factors collectively weigh in favor of concluding that the Cross endorses Christianity not only above all other faiths, but also to their exclusion. Id. at Therefore, the cross was found to be unconstitutional. Id. Other circuits have also addressed the constitutionality of large religious symbols on public land. See Gonzales v. N. Twp. of Lake Cty., 4 F.3d 1412, (7th Cir. 1993) (finding an eighteen-foot wooden cross to be in violation of the Establishment Clause, despite having a plaque dedicating it to veterans); see also Smith v. Cty. of Albemarle, 895 F.2d 953, 958 (4th Cir. 1990) (finding a crèche, standing alone, located on government property to be unconstitutional, despite having a plaque stating its private sponsorship). This case is dissimilar to Lynch, where the controversial crèche was part of a larger display of secular items, but is more similar to County of Allegheny, where the crèche stood alone as its own display. Here, the crosses stand by themselves on public land and in front of the Greene State 22

29 Police regional headquarters. R. at 4. Further, the adornment of the secular items on the cross, such as the plaque containing the fallen officer s picture and biographical information, do not mitigate the unconstitutionality of the otherwise, wholly religious display. As this Court found in County of Allegheny, the secular symbolisms only give the reasonable observer the inference that the state of Greene is endorsing the religious message of that organization, rather than communicating a message of its own. Due to the massive size of the crosses and the placement of the crosses by themselves without any other mitigating monuments to relay a different message, the context of the crosses gives the impression to the reasonable observer that the state of Greene is endorsing Christianity, in direct violation of the Establishment Clause. Thus, the crosses have failed the effect prong of the Lemon test. C. The state of Greene has also violated the entanglement prong of the Lemon test because it allows the display of the crosses to the exclusion of all other religious beliefs and maintains the area on which the crosses stand. Finally, the State of Greene has violated the excessive entanglement prong of the Lemon test because the manner in which the state allows the cross to be constructed is to the exclusion of all other religious tenets and the state pays for the maintenance of the public land on which the crosses stand. Looking at the last prong of the Lemon test, the entanglement prong asks whether the governmental display creates an excessive entanglement between government and religion. Lemon, 403 U.S. at 613. This Court has held that excessive entanglement with religion is a question of kind and degree. Lynch, 465 U.S. at 684. In Agostini v. Felton, this Court found that excessive entanglement could occur where the government's entanglement has the effect of advancing or inhibiting religion. Agostini v. Felton, 521 U.S. 203, (1997). 23