nin137

My Law Review Article

after two years i have finally managed to get over the
heart-break that occurred when i was told by our law review
editor that my submission for entry on the law review was
never received. below is the piece that i wrote for entry.
it is written in the context of the writer being seated on
the supreme court and needing to decide whether an 8 foot
tall monument of the 10 commandments in front of the county
courthouse violates the establishment clause.

Abbott v. Washtenaw County (Decided: May 30, 2007)
The issue before the Court is whether the display of an
eight foot tall monument of the Ten Commandments
(“Monument”) displayed on the front lawn of the Washtenaw
County (“County”) Courthouse is in violation of the
Establishment Clause under the First Amendment to the
Constitution. The Monument was purchased by the County with
funds procured from Ms. Mary Washburn and was erected in
honor of her husband, the honorable Judge William Washburn.
After a period of 100 years, Mr. Edward Abbott brought suit
against the County alleging that the display of the Monument
is in violation of the Establishment Clause.
Unfortunately there is no well-defined rule to clarify what
constitutes a violation of the Establishment Clause. While
helpful suggestions have been posited, an initial evaluation
tends to turn on whether there is a predominantly secular
purpose which overshadows an incidental religious aspect.
The “Lemon Test” is a three-part test which has been used by
the Court as a “sign post” or a preliminary filter. Lynch
v. Donnelly, 465 U.S. 668, 689 (1984). The test sets forth
three criteria: 1) is there a secular legislative purpose;
2) is the principle or primary effect one that neither
advances nor inhibits religion; and 3) does the issue
constitute an excessive government entanglement with
religion. Stone v. Graham, 449 U.S. 39 (1981). The test
has further been reduced to the “purpose” and “effect”
prongs. Lynch, 465 U.S. at 690. The “purpose” prong asks
whether the government’s actual purpose is to endorse or
disapprove of religion. Id. The “effect” prong determines
whether, “irrespective of government’s actual purpose, the
practice…in fact conveys a message of endorsement or
disapproval.” Id. The effect of a practice is judged in
light of a “reasonable observer” and, as is explained later,
depends on the contextual circumstances surrounding the
disputed practice. See County of Allegheny v. American
Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S.
573, 668 (1989)
The Lemon Test only serves as a “sign post” for determining
whether an issue may violate the Establishment Clause;
“[t]he touchstone for our analysis is the principle that the
‘First Amendment mandates governmental neutrality between
religion and religion and between religion and
non-religion.’” McCreary County, Kentucky v. American Civil
Liberties Union of Kentucky, 545 U.S. 844, 860 (2005). “The
basis for that principle is rooted in our Nation’s history
and our Constitution’s text.” Van Orden v. Perry, 545 U.S.
677, 733 (2005). Therefore, when evaluating an issue in
light of the Establishment Clause, one must ask whether it
is contrary to “the principle that government must remain
neutral between valid systems of belief.” Van Orden, 545
U.S. at 734. Finally, while an absolute division between
government and religion is neither feasible nor mandated by
the First Amendment (See Lynch, 465 U.S. at 673), we must
rely on the contextual circumstances surrounding the display
to determine whether it has a predominantly secular purpose
or whether its primary effect is an endorsement of religion.
Contextual circumstances serve as guidelines for what a
reasonable observer may perceive to be the effect of a
display. Such issues as the location of a monument, whether
it is displayed under a larger secular theme (e.g., in a
history class in public school), or whether it is part of a
larger festive celebration are all criteria that help the
Court determine what effect it may have on a reasonable
observer.
In applying the principles set forth above to the case at
bar and accounting for all of the contextual circumstances,
we have come to the conclusion that the monument of the Ten
Commandments in front of the Washtenaw County Courthouse
violates the Establishment Clause because it has the effect
of implying a government endorsement of religion. While the
County may successfully argue that the purpose of the
Monument was not religious in nature in that it is merely a
memorial honoring an individual and furthermore serves only
as “a historical, jurisprudential cornerstone of American
legal significance,” the Monument nevertheless fails the
“effect” prong of the Lemon Test. As we have stated before,
“[t]he Ten Commandments are undeniably a sacred text in the
Jewish and Christian faiths. For many followers, the
Commandments represent the literal word of God…[they] cannot
be analogized to an appendage to a common article of
commerce (‘In God We Trust’) or an incidental part of a
familiar recital (‘God save the United States and this
honorable Court’).” Van Orden, 545 U.S. at 716. A literal
reading of the text itself serves as undeniable proof that
the Monument advocates the belief that there is one God who
has set forth the Commandments, “I am the LORD thy God…Thou
shalt have no other gods before me.” (Exodus 20:2-3).
Given this overtly religious text, a reasonable observer
passing by the Monument on his way into the courthouse may
construe such as an endorsement by Washtenaw County of a
Judeo-Christian belief or, at the very least, of an
endorsement of a monotheistic religion. By creating this
overt awareness of the Judeo-Christian belief system
underlying our legal system, the Monument in front of the
courthouse falls into, “[those] practices having that
effect…that make religion relevant in reality or public
perception, to status in the political community.” Lynch,
465 U.S. at 692. The issue is not the probability of such a
perception by a reasonable observer, but that there is a
possibility of violation of the neutrality principle, and
“if neutrality in religion means something, any citizen
should be able to visit that civic home without having to
confront religious expressions clearly meant to convey an
official religious position that may be at odds with his own
religion, or with rejection of religion.” Van Orden, 545
U.S. at 745-6.
As mentioned above, a contextual analysis of the issue at
hand would help clarify why we have held that the display of
the Ten Commandments in front of the courthouse constitutes
an endorsement of religion. While the Monument itself may
be viewed by some as a mere passive display and not an overt
government endorsement of religion, one must take into
account the fact that the monument is a) eight feet tall and
b) situated on the front lawn of the courthouse. An eight
foot tall monument on the front lawn of an establishment is
likely to garner the attention of any reasonable observer.
Furthermore, a reasonable observer is likely to infer that
such a prominent position as the front lawn constitutes an
implicit endorsement of the Monument; in fact we have held
before that where a display is situated is dispositive of
its significance in County of Allegheny. Given the
Monument’s location and size, we hold that it is likely that
a reasonable observer would view the Monument as a
government endorsement of religion. Nor does it matter that
in this case the County has opted to include other monuments
which it apparently hopes will diminish the imposition of a
specific religious belief. As stated above, the government
must remain neutral not only among religions but also
between religion and non-religion. The contextual analysis
is not based on a survey as to whether all religions have
been adequately portrayed, but whether the foundational
principle of neutrality has been violated. Were we to
accept the County’s addition of other religious symbols, we
could likely be involved in endless litigation as more and
more religious beliefs demand recognition. That is why the
foundational principle of the First Amendment is neutrality,
simply stated, the government is not to endorse any
religious belief. A reasonable observer may view the
erection of the Monument in question as an endorsement of
religion by the County due to its overtly religious text and
its prominent display on the courthouse lawn; it therefore
fails the foundational principle of neutrality in the
Establishment Clause and must therefore be removed.
We are mindful, however, that since this is an area in
which there is no well-established rule, and although there
are a number of arguments which favor keeping the Monument
in place, we believe that the principle of neutrality
underlying the Establishment Clause intends that, “[t]he
Establishment Clause, at the very least, prohibits
government from appearing to take a position on questions of
religious belief or from ‘making adherence to a religion
relevant in any way to a person’s standing in the political
community’.” County of Allegheny, 492 U.S. at 594. We will
therefore confront some of the primary arguments against our
ruling and show how they are at odds with the neutrality
policy behind the Establishment Clause.
The primary argument against our ruling today would stem
from the claim that the Monument is merely “a historical,
jurisprudential cornerstone of American legal significance,”
and that the First Amendment is not intended to, “evince a
hostility to religion by disabling the government from in
some ways recognizing our religious heritage.” Van Orden,
545 U.S. at 684. This Court has frequently acknowledged the
fact that, “religion has been closely identified with our
history,” and that “[t]he history of man is inseparable from
the history of religion.” Van Orden, 545 U.S. at 687.
While it is impossible to deny that our history is in some
way based upon religious beliefs, it can equally be said
that, “the [Ten Commandments] viewed in its entirety is an
unmistakably religious statement dealing with religious
obligations and with morality subject to religious
sanction.” McCreary County, 545 U.S. at 869. Most
prominently the historical argument tries to circumnavigate
the overtly religious nature of the Ten Commandments by
emphasizing its influence on our legal code and, hence, its
value to our society. As it seems that both the religious
nature and historical background of the Monument can not be
denied, one must simply weigh the two and come to a
conclusion which is faithful to the policy set forth above.
Given the policy that religion should never be relevant to
a persons standing, we feel that the detriment any
reasonable observer may glean from the Monument by making
him aware of his religious belief far outweighs any benefit
our society may have from being able to view the Monument as
a historical tribute.
The second argument is that the First Amendment does not
mandate a “callous indifference to religious groups,” and
that we must respect the religious nature of the majority.
County of Allegheny, 492 U.S. at 658. This argument is
largely predicated on a quote by Justice Goldberg which
stated, “untutored devotion to the concept of neutrality can
lead to…results…of a brooding and pervasive devotion to the
secular and a passive, or even active, hostility to the
religious.” Id. at 659. This argument twists the
neutrality principle underlying the First Amendment. By
warping the concept of governmental neutrality on religious
matters into a claim of “callous indifference” towards the
religious nature of the people or hostility to the
religious, this claim tries to fabricate a wrong where it
does not exist. In his dissent in McCreary County Justice
Scalia quotes a former opinion noting that, “[t]o invoke
Divine guidance on a public body entrusted with making laws
is not…an ‘establishment’ of religion…it is simply a
tolerable acknowledgement of beliefs widely held among the
people of this country.” McCreary County, 545 U.S. at 892.
In essence, Justice Scalia asserts that because a vast
majority of the population is monotheistic and in some form
or another believes in the Ten Commandments, the minority
should be tolerant of the majority’s view and that the
Court’s order to remove the Ten Commandments shows not only
a callous indifference to the religious nature of the
majority, but also amounts to a favoring of the irreligious
over the religious. The consequence of Justice Scalia’s
reasoning can best be summed up by his own statement,
“[w]ith respect to public acknowledgement of religious
belief, it is entirely clear from our Nation’s historical
practices that the Establishment Clause permits the
disregard of polytheists…just as it permits the disregard of
devout atheists.” Id. at 893. Such blatant discrimination
in favor of one type of religion was surely not meant by the
First Amendment and furthermore is an affront to the
religious liberties of all who live in this country.
Neutrality is not a callous indifference or hostility to the
religious majority as alleged by Justices Goldberg and
Scalia; rather, it is the principle of this country for the
sole reason that the majority does not impose its will upon
the minority through the government. It serves to protect
the minority from the type of ostracism Justice Scalia
suggests is permissible under the Constitution.
The final two arguments against our ruling today stem from
a direct critique of the contextual analysis and the fact
that the Monument itself is nothing more than a passive
display by the County. The endorsement-in-context test has
been labeled as a “mischaracterization” and a “jurisprudence
of minutiae.” County of Allegheny, 492 U.S. at 674.
Contextual analysis is further criticized as, “an unguided
examination of marginalia [which] is irreconcilable with the
imperative of applying neutral principles in constitutional
adjudication.” Id. However, given the fact that an
absolute division between church and state is nearly
infeasible, one must take into account that only through an
examination of the issue in its context can one yield a
satisfactory and defensible ruling. In order to evaluate
the “effect” prong of the Lemon Test mentioned above, the
necessary question is, “what viewers may fairly understand
to be the purpose of the display. That inquiry, of
necessity, turns upon the context in which the contested
object appears.” County of Allegheny, 492 U.S. at 595. For
example, only by an analysis of the context can we arrive at
the logical conclusion that a display of an overtly
religious artifact in a museum does not constitute an
endorsement by the government, largely because the setting
does not imply a specific preference based upon religion but
historical significance. Were the Monument in a museum I
believe there would be no question that it was merely a part
of a composition acknowledging our legal history with its
overtly religious text as merely incidental to the primary
effect upon a reasonable observer. However, its presence in
front of the courthouse creates the inference that the court
endorses the message upon the Monument as it is unusual for
a courthouse to exhibit religious monuments, whereas it is
quite usual and within the context of a museum to have such
a display. A final point of dispute against our position
is that the Monument is nothing more than a passive display
which does not necessarily constitute an active endorsement
of religion. However, this argument is easily dispensed
with from the “purpose” prong of the Lemon Test. In an
analogy to Stone in Allegheny the dissenting opinion noted
that, “the State was putting the Commandments there to be
seen, just as the monument’s inscription is there for those
who walk by it.” County of Allegheny, 492 U.S. at 745. The
fact that the County permitted the Monument at the
Courthouse site is enough to put it in violation of the
Establishment Clause. By erecting the Monument, the County
created a situation in which a reasonable observer could
infer an endorsement of religion. Surely the Court would
find the County in violation of the Establishment Clause if
it were to erect an eight foot tall Cross on the front lawn;
overtly religious symbols are active in their message once
they have been erected and need no further participation by
the County to constitute a violation of the First Amendment.
The eight foot tall monument of the Ten Commandments in
front of the Washtenaw County Courthouse is in violation of
the Establishment Clause because it is an overtly religious
symbol which, upon a contextual analysis, has the effect of
an endorsement of religion. The Ten Commandments have time
and again been held to be a religious text and, “[any]
attempts to secularize what is unquestionably a sacred text
defy credibility and disserve people of faith.” Van Orden,
545 U.S. at 717. From a plain reading of the text of the
Ten Commandments to a sampling of those of religious faith,
we believe that this viewpoint is beyond dispute. But that
alone was not enough to determine that the County violated
the First Amendment. An analysis based on the contextual
circumstances evinces an unmistakable inference that the
Monument is an endorsement by the County of the
Judeo-Christian religion. Its prominent presence on the
courthouse lawn as well as its height of eight feet is
evidence of the County’s implicit endorsement of the
Monument, its text, and the religion from which it sprang.
Through such an analysis one can infer that the County has
violated the neutrality principle. This neutrality is
shattered the moment a reasonable observer were to walk into
the courthouse, look at the Monument, and feel just a
moment’s hesitation about his own beliefs and the effect
they may have on him on his day in court.