NO.

In theIn theIn theIn theIn the

Supreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United States

HON. JAMES DEWEESE, IN HIS OFFICIAL CAPACITY,Petitioner,

v.

AMERICAN CIVIL LIBERTIES UNIONOF OHIO FOUNDATION, INC.,

Respondent.

On Petition for Writ of Certiorari to theUnited States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

JAY ALAN SEKULOW

Counsel of RecordSTUART J. ROTH

FRANCIS J. MANION

WALTER M. WEBER

GEOFFREY R. SURTEES

EDWARD L. WHITE III

Counsel for PetitionerJune 13, 2011

i

QUESTIONS PRESENTED

Judge James DeWeese of Richland County, Ohio,displayed a poster in his courtroom entitled“Philosophies of Law in Conflict.” The poster identifiestwo opposing moral and legal philosophies, moralrelativism vs. moral absolutes, and indicates thatDeWeese supports the position of moral absolutes.The ACLU of Ohio, claiming it had standing becauseone of its members was offended at seeing the poster,filed suit in federal court. The district court held thatthe ACLU had Article III standing and grantedsummary judgment in favor of the ACLU, holding thatthe display violated the Establishment Clause of theFirst Amendment. The Sixth Circuit affirmed bothholdings. The questions presented are:

1. Does respondent ACLU, whose “injury” consists ofno more than the fact that one of its members onoccasion views and takes offense at conduct with whichhe disagrees, have standing under Article III to bringan Establishment Clause challenge?

2. Did the Sixth Circuit err in holding, in conflict withthis Court and the Third and Eighth Circuits, thatDeWeese’s purported religious purpose behind aprevious courtroom display renders any profferedsecular purpose behind a new display a sham?

3. Did the Sixth Circuit err in holding, in conflictwith this Court’s decisions recognizing with approvalthe role of religion in the country’s history andheritage, that DeWeese’s jurisprudential commentarywas an impermissible endorsement of religion?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . v

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . 1

DECISIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . 2

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CONSTITUTIONAL PROVISIONS . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . 3

REASONS FOR GRANTING THE WRIT . . . . . . 12

I. THE SIXTH CIRCUIT’S DECISION ONSTANDING DIRECTLY CONFLICTSWITH THIS COURT’S PRECEDENTS. 12

II. THE CIRCUIT COURTS BADLY NEEDGUIDANCE FROM THIS COURT ONT H E Q U E S T I O N W H E T H E ROFFENDED OBSERVER CLAIMSSUFFICE TO ESTABLISH STANDINGUNDER ARTICLE III. . . . . . . . . . . . . . 17

III. THE DECISION BELOW, EMBRACINGAN “INDELIBLE TAINT” APPROACHTO LEMON’S PURPOSE PRONG,CONFLICTS WITH DECISIONS OF

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THIS COURT AND OF THE THIRDAND EIGHTH CIRCUITS. . . . . . . . . . . 20

IV. THE DECISION BELOW CONFLICTSWITH THIS COURT’S DECISIONSRECOGNIZING WITH APPROVAL THEROLE OF RELIGION IN THEC O U N T R Y ’ S H I S T O R Y A N DHERITAGE. . . . . . . . . . . . . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

APPENDIX

Appendix A: U.S. Court of Appeals for theSixth Circuit,Opinion and Judgment(Feb. 2, 2011) . . . . . . . . . . . . . 1a

Appendix B: U.S. District Court, N.D. Ohio,Eastern Division,Memorandum of Opinion andOrder and Judgment Entry(Oct. 6, 2009) . . . . . . . . . . . . 27a

Appendix C: U.S. Court of Appeals for theSixth Circuit,Decision denying petition forrehearing en banc(Mar. 16, 2011) . . . . . . . . . . . 56a

Appendix D: N.D. Ohio, E.D., No. 08-2372,Complaint for Declaratory &Injunctive Relief, Costs &

iv

Statutory Attorney Fees(Doc. 1)(Oct. 7, 2008) . . . . . . . . . . . . 58a

Appendix E: N.D. Ohio, E.D., No. 08-2372,Declaration of Bernard R.Davis, Esq. Submitted in Lieuof Affidavit Pursuant to 28U.S.C. §1746 (Doc. 16-5)(June 5, 2009) . . . . . . . . . . . . 66a

Appendix F: N.D. Ohio, E.D., No. 08-2372,Def. Exhibit A, Declaration ofJudge James DeWeesePursuant to 28 U.S.C. § 1746(Doc. 17-1)(July 3, 2009) . . . . . . . . . . . . 79a

Appendix G: N.D. Ohio, E.D., No. 08-2372,Def. Exhibit A, Declaration ofGerard V. Bradley (Doc. 17-2)(July 3, 2009) . . . . . . . . . . . . 99a

v

TABLE OF AUTHORITIES

Cases

ACLU v. Capitol Square Review & Advisory Bd.,243 F.3d 289 (2001) (en banc) . . . . . . . . . . . . . 29

ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999) (Alito, J.), cert.denied, 520 U.S. 1265 (1997) . . . . . . . . . . . 23, 24

ACLU Neb. Found. v. City of Plattsmouth,358 F.3d 1020 (8th Cir. 2004), vacated on reh’gen banc, 419 F.3d 772 (2005) . . . . . . . . . . . . . . 19

ACLU of Ohio v. Ashbrook, 211 F. Supp. 2d 873 (N.D. Ohio 2002) . . . . . . . 4

ACLU of Ohio Found., Inc. v. Ashbrook, 375 F.3d 484 (6th Cir. 2004), cert. denied, 545U.S. 1152 (2005) . . . . . . . . . . . . . . . 4, 9, 11, 17, 26

Adland v. Russ, 307 F.3d 471 (6th Cir. 2002) . . . . . . . . . . . . . . 15

Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011) . . . . . . . . . . . . . . . . . . . 16

Barnes-Wallace v. City of San Diego, 530 F.3d 776 (9th Cir. 2008) . . . . . . . . . . . . . . 17

Books v. Elkhart Cnty., 401 F.3d 857 (7th Cir. 2005) . . . . . . . . . . . . . . 16

City of Edmond v. Robinson, 517 U.S. 1201 (1996) . . . . . . . . . . . . . . . . . . . . 19

vi

Cooper v. U.S. Postal Serv., 577 F.3d 479 (2d Cir. 2009) . . . . . . . . . . . . . . . 19

Cnty. of Allegheny v. ACLU, 492 U.S. 573 (1989) . . . . . . . . . . . . . . . . . . 15, 16

Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470 (2006) . . . . . . . . . . . . . . . . . . . . . 16

Edwards v. Aguillard, 482 U.S. 578 (1987) . . . . . . . . . . . . . . . . . . . . . 25

Engel v. Vitale, 370 U.S. 421 (1962) . . . . . . . . . . . . . . . . . . . . . 27

Foremaster v. City of St. George, 882 F.2d 1485 (10th Cir. 1989) . . . . . . . . . . . . 17

Freedom From Religion Found., Inc. v. Obama,2011 U.S. App. Lexis 7678 (7th Cir. Apr. 14,2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Hawley v. City of Cleveland, 773 F.2d 736 (6th Cir. 1985) . . . . . . . . . . . . . . 15

Lemon v. Kurtzman, 403 U.S. 602 (1971) . . . . . . . . . . . . . 20, 21, 24, 26

Lewis v. Casey, 518 U.S. 343 (1996) . . . . . . . . . . . . . . . . . . . . . 14

Lynch v. Donnelly, 465 U.S. 668 (1984) . . . . . . . . . . . . . . . 15, 16, 27

Marbury v. Madison, 5 U.S. 137, 1 Cranch 137 (1803) . . . . . . . . . . . 14

vii

McCreary Cnty. v. ACLU, 545 U.S. 844 (2005) . . . . . . . . . . . . . . . . . . passim

McGowan v. Maryland, 366 U.S. 420 (1961) . . . . . . . . . . . . . . . . . . . . . 28

Planned Parenthood v. Casey, 505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . 5

Roark v. South Iron R-1 Sch. Dist., 573 F.3d 556 (8th Cir. 2009) . . . . . . . . . . . 24, 25

Saladin v. City of Milledgeville, 812 F.2d 687 (11th Cir. 1987) . . . . . . . . . . . . . 17

Schlesinger v. Reservists Comm. to Stop the War,418 U.S. 208 (1974) . . . . . . . . . . . . . . . 13, 14, 16

Sch. Dist. of Abington v. Schempp, 374 U.S. 203 (1963) . . . . . . . . . . . . . . . . . . . . . 27

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) . . . . . . . . . . . . . . 10, 13, 16, 17

Suhre v. Haywood Cnty., 131 F.3d 1083 (4th Cir. 1997) . . . . . . . . . . . . . 17

United States v. Richardson, 418 U.S. 166 (1974) . . . . . . . . . . . . . . . 13, 14, 16

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) . . . . . . . . . . . . . . . . . . . . . 16

Valley Forge Christian Coll. v. Ams. United forSeparation of Church and State, 454 U.S. 464 (1982) . . . . . . . . . . . . . . . . . . passim

viii

Van Orden v. Perry, 545 U.S. 677 (2005) . . . . . . . . . . . . . . . . . . 28, 30

Vasquez v. L.A. Cnty., 487 F.3d 1246 (9th Cir. 2007) . . . . . . . . . . . . . 17

Washegesic v. Bloomingdale Pub. Schs., 33 F.3d 679 (6th Cir. 1994) . . . . . . . . . . . . 15, 17

Zorach v. Clauson, 343 U.S. 306 (1952) . . . . . . . . . . . . . . . . . . . . . 27

Constitutional Provisions

Ohio Const. Art. I, § 7 . . . . . . . . . . . . . . . . . . 6, 9, 27

U.S. Const. Amend. I . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. Art. III . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. Art. III, § 2 . . . . . . . . . . . . . . . . . . . . . . 3

Statutes

4 U.S.C. § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . 3

36 U.S.C. § 119 . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

36 U.S.C. § 302 . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Northwest Ordinance, 1 Stat. 50 (1789) . . . . . . . 27

Ohio Rev. Code § 5.06 . . . . . . . . . . . . . . . . . . . . . . 29

ix

Other Authorities

Blackstone, Commentaries on the Laws ofEngland, Bk 1, sec. 2 . . . . . . . . . . . . . . . . . . . . 30

5 The Founders’ Constitution 684 (P. Kurland & R.Lerner eds. 1987) . . . . . . . . . . . . . . . . . . . . . . . 27

Two Treatises of Government, Book II, Chapter XI,§ 135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

1

INTRODUCTION

In the Establishment Clause case, Valley ForgeChristian Coll. v. Ams. United for Separation ofChurch and State, 454 U.S. 464 (1982), this Court heldthat the “psychological consequence presumablyproduced by observation of conduct with which onedisagrees” is insufficient to confer standing underArticle III. Despite this clear and unequivocalteaching, federal circuit courts, including the courtbelow, have repeatedly found “offended observer”standing to suffice in Establishment Clause cases. Togrant legal standing based solely on personal offense,disagreement, or grievance, however, even if phrasedin constitutional terms, is to ignore, if not obliterateentirely, the mandate under Article III that thejurisdiction of federal courts be limited to cases orcontroversies.

The lower courts are badly in need of a reminder ofwhat this Court clearly held in Valley Forge. Thepresent case perfectly exemplifies this need. Thetheory of standing here is, in essence, “I came, I saw,I was offended.”

For at least the past ten years, Mansfield, Ohioattorney and ACLU member Bernard Davis has beena regular advocate in the courtroom of petitioner,Judge James DeWeese. During that time, the twohave enjoyed a cordial, professional relationship. Butin 2008, over two years after DeWeese hung up aposter in the courtroom entitled “Philosophies of Lawin Conflict,” a poster containing DeWeese’s natural lawjurisprudential viewpoint, the ACLU sued DeWeese.The suit claimed that DeWeese’s viewpoint and

2

purpose for hanging the poster were innately religious,hence verboten under the Establishment Clause.

The ACLU alleged that it had standing because oneof its members, the aforementioned Mr. Davis, wasinjured by the presence of DeWeese’s poster on thecourtroom wall. Davis claimed the poster offendedhim because it was “an inappropriate expression of areligious viewpoint . . . in a public building.” On themerits, the ACLU argued that, because DeWeese hadonce before been found to have harbored a religiouspurpose when he hung up a different poster, he musthave had a religious purpose for his second poster.

Both the district court and the Sixth Circuit agreedthat, as an offended observer, Davis (and thus theACLU, to which he belongs) suffered enough of aninjury to establish a “case or controversy” underArticle III. Both courts then held that DeWeese’s priorEstablishment Clause transgression fatally andforever tainted any attempt by DeWeese to assert anon-religious purpose for his new poster.

DECISIONS BELOW

All decisions in this case are entitled AmericanCivil Liberties Union of Ohio Foundation, Inc. v.James DeWeese. The panel opinion appears at 633F.3d 424 (6th Cir. 2011). App. A. The decision of thedistrict court granting the ACLU’s motion forsummary judgment on its federal and stateconstitutional claims is unpublished. No. 1:08CV2372,2009 U.S. Dist. LEXIS 130790 (N.D. Ohio Oct. 7,2008). App. B.

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JURISDICTION

The U.S. Court of Appeals for the Sixth Circuitissued its decision on February 2, 2011, and denied atimely petition for rehearing with suggestion forrehearing en banc on March 16, 2011. App. C. ThisCourt has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

Article III of the United States Constitutionprovides in pertinent part as follows:

The judicial Power shall extend to all Cases, inLaw and Equity, arising under thisConstitution, the Laws of the United States,and Treaties made, or which shall be made,under their Authority . . .

U.S. Const. Art. III, Sec. 2.

The First Amendment to the United StatesConstitution provides in pertinent part as follows:

Congress shall make no law respecting anestablishment of religion . . . .

U.S. Const. Amend. I.

STATEMENT OF THE CASE

1. Facts and Legal Proceedings Prior to Current Suit

Honorable James DeWeese is a judge of theRichland County Court of Common Pleas in the State

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of Ohio. App. 28a. He has held this position fortwenty years, having been first elected in 1991. Id.

In July, 2000, Judge DeWeese created and hung inhis courtroom two posters. See ACLU of Ohio Found.,Inc. v. Ashbrook, 375 F.3d 484, 487 (6th Cir. 2004),cert. denied, 545 U.S. 1152 (2005). The first posterconsisted of the text of the Bill of Rights. Id. Thesecond poster consisted of a version of the TenCommandments. Across the top of each poster was thephrase “rule of law.” Id. Judge DeWeese hung bothposters for the purpose of illustrating educational talkshe was in the custom of giving to school andcommunity groups who would visit his courtroom, andalso as a way of fostering debate about the relativemerits of a legal philosophy based on moral absolutesand one based on moral relativism. Id. at 491-92.

The ACLU of Ohio, the same respondent here, suedDeWeese, alleging that the display of the Decalogue inhis courtroom violated the Establishment Clause of theFirst Amendment to the U.S. Constitution. The districtcourt agreed, ACLU of Ohio v. Ashbrook, 211 F. Supp.2d 873 (N.D. Ohio 2002), and a divided Court ofAppeals affirmed, ACLU of Ohio v. Ashbrook, supra.Following the latter ruling, Judge DeWeesepermanently removed the Ten Commandments posterfrom his courtroom. App. 3a.

Two years later, in June, 2006, DeWeese put up anew poster in his courtroom. App. 80a, ¶ 2. Thisposter, the one at issue in this case, bears the title,“Philosophies of Law in Conflict.” Id. Most of thespace on the poster is occupied by two columns ofnumbered statements: on the left, the TenCommandments, labeled “Moral Absolutes;” on the

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1 One of the Humanist Precepts DeWeese listed is a quotationfrom the Joint Opinion in Planned Parenthood v. Casey, 505 U.S.833 (1992). Whether DeWeese’s characterization of the passagehe quotes is accurate or not is, of course, irrelevant to the ACLU’sstanding and Establishment Clause claim.

2 The typeface on the poster is small enough that one would haveto approach the poster to read it. App. 80a, ¶ 3.

right, seven Humanist Precepts, labeled “MoralRelatives.” App. 28a-29a, 87a.1 The Commandmentsand the Precepts are the same in style, type, andappearance. App. 87a. However, because they aresomewhat lengthier, the Humanist Precepts take upmore space on the poster than the Commandments.Id.

In addition to the title and the Commandments andthe Precepts, the poster contains — in typeconsiderably smaller than the poster’s other elements2

— four separate numbered paragraphs in which JudgeDeWeese expresses his viewpoint about what he seesas a conflict of legal philosophies in the United States.App. 28a-29a, 87a. He describes these philosophies interms of moral absolutism versus moral relativism. Asexamples of each, he directs the reader to theCommandments and the Precepts. He concludes bystating that he joins with America’s Founders inrecognizing the need to ground legal philosophy onfixed moral standards as opposed to moral relativism.Beneath the last line of the poster, DeWeese placed hisown name as a signature. Finally, in the lower rightcorner of the frame, a note tells the reader that anexplanatory pamphlet, written by DeWeese andexplaining his views in greater detail, is available fromthe receptionist. Id.

6

3 The court of appeals did not reach the state constitutional claim.That claim is therefore not before this Court.

Two years after DeWeese mounted his new poster,the ACLU filed a Motion for an Order to Show Causewhy Judge DeWeese should not be held in contemptfor allegedly violating the 2001 injunction orderinghim to remove the Ten Commandments poster. ACLUv. Ashbrook, No. 1:01CV0556 (N.D. Ohio), Doc. 67.The court denied the motion because the injunctionordered nothing beyond the removal of the “rule oflaw” poster — an injunction DeWeese had fullycomplied with. App. 29a.

2. Current Suit and Proceedings in District Court

The ACLU filed the instant suit against JudgeDeWeese in U.S. District Court for the NorthernDistrict of Ohio on October 7, 2008. The suit, namingonly the ACLU of Ohio as plaintiff, alleged thatDeWeese’s Philosophies of Law in Conflict displayviolated the Establishment Clause of the FirstAmendment and Article I, Section 7 of the OhioConstitution.3

In support of its motion for summary judgment onits federal and state claims, the ACLU submitted onedeclaration, that of Bernard Davis. App. E. In hisdeclaration, Davis, an attorney who practices law inRichland County, states that he has witnessed thePhilosophies of Law in Conflict poster in DeWeese’scourtroom on a number of occasions. App. 67a, ¶¶ 2-3.He avers that the poster expresses the “espousal of alegal philosophy which is, in my opinion, clearly areligious message.” Id. at ¶ 3. Davis describes the

7

supposed “injury” he suffers in two sentences. First:“The display offends me personally, in that I perceiveit to be an inappropriate expression of a religiousviewpoint as well as a display of a sacred text in apublic building.” Id. Second: “I find said display to bepersonally offensive and demeaning because it makesme feel as though a particular religious point of viewis being thrust upon me.” Id. at ¶ 4.

Davis nowhere states, in his declaration orelsewhere, that the display offends his own religiousbeliefs or sensibilities; that the display directly orindirectly coerces him to think or act in any particularway; that the display makes him feel like an outsiderrather than a full member of the political community.Nor does Davis identify any personal “injury” beyonda perceived affront to his sense of propriety and,perhaps, his own view of what the law requires.

In opposition to the ACLU’s motion for summaryjudgment, DeWeese submitted declarations byDeWeese himself and Professor Gerard Bradley ofNotre Dame Law School. Apps. F and G.

In his declaration, DeWeese states that his purposein creating and displaying the poster “was to expressmy views about two warring legal philosophies thatmotivate behavior and the consequences that I havepersonally witnessed in my 18 years as a trial judge ofmoving to a moral relativist philosophy andabandoning a moral absolutist legal philosophy.” App.81a, ¶ 5.

He states further that because the purpose behindthe previous display was not clear from the displayitself and because a court misinterpreted his purpose

8

to be a religious one, he was careful in the new displayto explain the philosophical purpose behind it. Id. at¶ 6. He has never used or referred to the display inany court proceeding and the text of the poster is toosmall to be read from the jury box. App. 82a, ¶ 10.

Finally, DeWeese states that he and Davis have acordial, professional relationship. App. 83a, ¶ 11.DeWeese is unaware of Davis ever making a requestthat one of his cases be reassigned from him or thatDeWeese recuse himself from any case in which Daviswas involved. Id. at ¶ 12. Ironically, Davis himselfhas on at least one occasion made religious referenceswhen summing up a murder case to a jury. Id. at ¶ 13.

In the expert report submitted by ProfessorBradley, an expert on the moral foundations ofAmerican law and jurisprudence, Bradley describes indetail how DeWeese’s poster “expresses a recognizableviewpoint within the fields of the moral foundations ofAmerican law and jurisprudence.” App. 104a.

Bradley’s report was not contested by the ACLUwith any opposing expert report.

On October 8, 2009, the district court grantedsummary judgment to the ACLU on both its federaland state claims.

The court found that the ACLU had standing to suebecause it found that Davis had established an injury— “being personally offended” — and that declaratoryand injunctive relief would prevent further injury.App. 35a.

9

On the merits of the federal Establishment Clauseclaim, the court found that DeWeese’s purpose was animpermissibly religious one based on “the plain wordsof his declaration, the poster, and the pamphlet.” App.39a. The court also held that DeWeese’s currentpurpose is “substantially similar” to the impermissiblepurpose found by the Ashbrook court. Id.

The court further concluded that DeWeese’s posterrepresented an impermissible endorsement of religion.Among other things considered by the court in itsendorsement analysis was the history of DeWeese’sprevious display. App. 49a. The court also consideredthe contents of DeWeese’s explanatory pamphlet, inaddition to the words of the poster itself. The courtnoted that DeWeese is a judge and displays the posterin a courtroom. Based on this, the court found that areasonable observer would conclude “that the State ofOhio and/or Richland County endorse the opinions setforth in the poster,” the most constitutionally offensiveof which appears to be DeWeese’s alleged “preferencefor the Judeo-Christian faiths.” Id.

Finally, the court found that, since Ohio statecourts have held that the Ohio Constitution providesno greater protection than the First Amendment,DeWeese’s poster also violated Article I, § 7 of the OhioConstitution. App. 52a.

3. Proceedings in the Sixth Circuit

DeWeese filed a timely appeal of the district court’sdecision with the U.S. Court of Appeals for the SixthCircuit.

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After briefing and oral argument, the Sixth Circuitrendered its decision on February 2, 2011. The Courtheld that (1) the ACLU had standing to sue based onthe declaration of Bernard Davis, and (2) DeWeese’sdisplay violated the Establishment Clause. The Courtnoted that because the display violated theEstablishment Clause, it did not need to decidewhether it violated the Ohio Constitution. App. 23a,n.4.

On the issue of standing, the court noted that insuits brought under the Establishment Clause, “directand unwelcome” contact with a challenged object“demonstrates psychological injury in fact sufficient toconfer standing.” App. 9a. Relying on the declarationof Davis, where he states that he comes in directcontact with DeWeese’s display and that “this contactis unwelcome due to the poster’s allegedly religiouscontent,” the court held that the ACLU had standingto sue. App. 11a.

The Sixth Circuit mischaracterized DeWeese’sargument as being that, under Valley Forge ChristianColl. v. Ams. United for Separation of Church andState, 454 U.S. 464 (1982), psychological injury cannever be the basis for Article III standing. The SixthCircuit added: “This Court has consistently rejectedthis argument.” App. 10a, n.1.

In fact, DeWeese had argued that it is inadequateto allege “no more than the psychological consequencepresumably produced by observation of conduct withwhich one disagrees,” Br. of Appellant at 14 (emphasisadded) (invoking Valley Forge), and that mere “psychicsatisfaction” does not satisfy Article III (invoking Steel

11

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107(1998)).

On the merits of the ACLU’s Establishment Clauseclaim, the court held that, assuming DeWeese hadstated a facially secular purpose in displaying thesecond poster in his courtroom, “the history of [his]actions demonstrates that any purported secularpurpose is a sham.” App. 16a. These “actions” derivefrom the first display DeWeese hung in his courtroomten years earlier and that was held to beunconstitutional by the Sixth Circuit Ashbrookdecision in 2004 — four years prior to the filing of thepresent suit.

The court acknowledged DeWeese’s statement thatbecause the purpose behind the “rule of law” displaywas unclear and misinterpreted by the court as areligious one, he was careful in the present display toexplain his philosophical purpose. Looking, however,to what it wrote in the Ashbrook decision seven yearsearlier, the court found DeWeese’s statements“unconvincing.” App. 18a.

The court also opined that while DeWeese’s pastactions were alone sufficient to reveal “his religiouspurpose,” the poster and explanatory pamphlet alsoevidenced DeWeese’s religious purpose. App. 18a-20a.

Finally, while noting that the religious purposebehind his second display was enough to demonstratean Establishment Clause violation, the court thoughtit would be “helpful” to consider the endorsementprong. App. 20a. The court held that the poster “setsforth overt religious messages and religiousendorsements,” and is “an explicit endorsement of

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religion by Defendant in contravention of theEstablishment Clause.” App. 21a, 22a. Moreover,because the poster “specifically links religion and civilgovernment,” it failed “[t]o survive endorsement testscrutiny.” App. 22a.

REASONS FOR GRANTING THE WRIT

I. THE SIXTH CIRCUIT’S DECISION ONSTANDING DIRECTLY CONFLICTS WITHTHIS COURT’S PRECEDENTS.

In finding that the ACLU had standing through itsmember, Bernard Davis, the Sixth Circuit applied aconcept sometimes referred to as “offended observerstanding.” An observer, such as Mr. Davis, has “directand unwelcome contact” with a display he deems tohave religious content; in his opinion such a display isinappropriate in the pertinent public setting; he thussuffers “psychological injury.” This psychologicalinjury becomes the actual or threatened injurytraceable to the defendant which he, or the ACLUclaiming standing derivatively, must show to have hiscomplaint adjudicated under Article III.

Mr. Davis alleges no coercion; he is free to observeor not to observe the poster. He alleges no actual civilor professional disability or penalty stemming from theposter’s presence. On the contrary, he has been andcontinues to be a regular practitioner in the courtroomof Judge DeWeese, with whom he enjoys a cordialprofessional relationship. He claims no insult oroffense to his own religious views attributable to thedisplay. He does, however, think that the display ofthe poster is an inappropriate expression of a religious

13

viewpoint in a public building. In short, Mr. Davisobserves, and takes offense.

Mere offended observer standing is irreconcilablewith this Court’s decisions. See Valley Forge, 454 U.S.464 (1982); Steele Co. v. Citizens for a Better Env’t, 523U.S. 83, 107 (1998) (“psychic satisfaction . . . does notredress a cognizable Article III injury”); Schlesinger v.Reservists Comm. to Stop the War, 418 U.S. 208, 222(1974); United States v. Richardson, 418 U.S. 166, 179-80 (1974). Valley Forge specifically held as insufficientto establish standing an injury consisting of no morethan “the psychological consequence presumablyproduced by observation of conduct with which onedisagrees.” 454 U.S. at 485.

Yet, despite these rulings, mere observation is thestandard proffered for standing in the vast majority oflower court religious display cases (as here). If ValleyForge, Steele Co., et al. are not to be eviscerated, itmust mean that offended observer standing is anaberration with no support in this Court’s standingjurisprudence.

Offended observer standing is flawed for numerousother reasons as well. For example, it confers a uniqueprivilege on separationist plaintiffs. Although thereare doubtless myriad ways in which governmentspeech or displays might offend various citizens, onlythose who bring an Establishment Clause claim areallowed to make a federal case out of their offense.

Offended observer standing also encroaches uponthe separation of powers. This Court repeatedly hassaid that lax standing requirements lead to judicialinvasion into the province of the politically accountable

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branches of government. E.g., Lewis v. Casey, 518 U.S.343, 349 (1996) (“the doctrine of standing . . . preventscourts of law from undertaking tasks assigned to thepolitical branches”). Offended observer standingsweeps sizable categories of otherwise politicallyaccountable government action into judiciallyreviewable litigation.

The cases of Schlesinger, 418 U.S. at 222, andRichardson, 418 U.S. at 179-180, established thatbeing disturbed by a governmental violation of theConstitution is never enough, by itself, to qualify as aconcrete, particularized injury under Article III.Schlesinger, 418 U.S. at 220; Richardson, 418 U.S. at176-77. See also Richardson, 418 U.S. at 191 (Powell,J., concurring) (“The power recognized in Marbury v.Madison, 5 U.S. 137, 1 Cranch 137 (1803), is a potentone. Its prudent use seems to me incompatible withunlimited notions of taxpayer and citizen standing”).

In Valley Forge, 454 U.S. at 482-90, the principlesarticulated in Richardson and Schlesinger wereapplied to claims brought to enforce the EstablishmentClause. The Valley Forge Court repudiated the notionthat offense at alleged Establishment Clause violationsis somehow distinguishable from the offense sufferedby the plaintiffs in Schlesinger and Richardson. Thecourt knew of “no principled basis on which to createa hierarchy of constitutional values or acomplementary ‘sliding scale’ of standing.” Id. at 484-85. The Court noted further that “the proposition thatall constitutional provisions are enforceable by anycitizen simply because citizens are the ultimatebeneficiaries of those provisions has no boundaries.”Id. at 485 (quoting Schlesinger, 418 U.S. at 227).

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4 Sixth Circuit cases include Adland v. Russ, 307 F.3d 471, 478(6th Cir. 2002); Washegesic v. Bloomingdale Pub. Schs., 33 F.3d679, 681-82 (6th Cir. 1994); Hawley v. City of Cleveland, 773 F.2d736, 740 (6th Cir. 1985).

In spite of this Court’s clear teaching, the SixthCircuit and other circuits, see Section II, infra, have“consistently rejected” arguments taking Valley Forgeat face value.4 Efforts to make a principled distinctionbetween Valley Forge and other cases have usuallyfocused on two things: 1) that the plaintiffs in ValleyForge, for the most part residents of states other thanPennsylvania, did not directly observe the complainedof conduct; and 2) that this Court has, subsequent toValley Forge, decided on the merits cases involvingreligious displays on public property in which the basisfor standing, arguably, appears to be that the plaintiffshad unwelcome, direct contact with the offendingdisplays. E.g., Cnty. of Allegheny v. ACLU, 492 U.S.573 (1989); Lynch v. Donnelly, 465 U.S. 668 (1984);McCreary Cnty. v. ACLU, 545 U.S. 844 (2005).

As to the first distinction, the Court stated inValley Forge that it made no difference that at leastsome of the plaintiff association’s members assertedlydid live in Pennsylvania. 454 U.S. at 487, n.23.Moreover, the controlling principle of law laid down bythe Court — the “psychological consequencepresumably produced by observation of conduct withwhich one disagrees” does not constitute a sufficientinjury — clearly encompasses not only disagreeablegovernment conduct of which one hears or reads, butalso conduct which one observes.

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As to the second purported distinction, relianceupon this Court’s adjudication on the merits of suchcases as Allegheny, Lynch, and McCreary is manifestlywrong. As recognized by the Court this Term, “[w]hena potential jurisdictional defect is neither noted nordiscussed in a federal decision, the decision does notstand for the proposition that no defect existed.” Ariz.Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436,1448 (2011) (citations omitted). See also Domino’sPizza, Inc. v. McDonald, 546 U.S. 470, 478-79 (2006);United States v. Verdugo-Urquidez, 494 U.S. 259, 272(1990) (“The Court often grants certiorari to decideparticular legal issues while assuming withoutdeciding the validity of antecedent propositions, andsuch assumptions — even on jurisdictional issues —are not binding in future cases that directly raise thequestions”).

Offended observer standing is irreconcilable withthis Court’s clear teaching in Valley Forge, Steele Co.,Schlesinger, and Richardson, because “it treatsobservation simpliciter as the injury.” Books v.Elkhart Cnty., 401 F.3d 857, 871 (7th Cir. 2005)(Easterbrook, J., dissenting). Observation of a posterin a judge’s courtroom no more triggers Article III thanwould observation of a turban or yarmulke on a judge’shead. The Sixth Circuit’s reliance on an offendedobserver in this case is a clear departure from thisCourt’s precedents. That the lower courtacknowledges that its rejection of this Court’s teachingis something it has done “consistently” in this areaonly highlights the need for this Court to grant review.

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II. THE CIRCUIT COURTS BADLY NEEDGUIDANCE FROM THIS COURT ON THEQUESTION WHETHER OFFENDEDOBSERVER CLAIMS SUFFICE TOESTABLISH STANDING UNDER ARTICLEIII.

Notwithstanding Valley Forge’s clarity on the

illegitimacy of standing predicated upon meredisagreement with something one observes, numerouslower federal courts in addition to the Sixth Circuithave read Valley Forge to permit standing where theplaintiff alleges that he has seen and been offended bya religious display. E.g., Suhre v. Haywood Cnty., 131F.3d 1083 (4th Cir. 1997); Vasquez v. L.A. Cnty., 487F.3d 1246 (9th Cir. 2007); Foremaster v. City of St.George, 882 F.2d 1485 (10th Cir. 1989); Saladin v. Cityof Milledgeville, 812 F.2d 687 (11th Cir. 1987).

This pattern of disregard or distortion of ValleyForge has not been without its critics. Individualjudges have lamented the fact that offended observerstanding is obviously irreconcilable with Valley Forge,Schlesinger, and the like. See, e.g., ACLU of Ohio v.Ashbrook, 375 F.3d at 495-500 (Batchelder, J.,dissenting) (Sixth Circuit’s decisions applying offendedobserver standing are “inconsistent with the holdingsin Valley Forge and Steel Co., and in that regard werewrongly decided”); Washegesic v. Bloomingdale PublicSchool, 33 F.3d at 684-85 (Guy, J., concurring)(“discussion of ‘psychological damage’ establishes —not religion — but a class of ‘eggshell’ plaintiffs of adelicacy never before known to the law”); Barnes-Wallace v. City of San Diego, 530 F.3d 776 (9th Cir.2008) (Kleinfeld, J., dissenting) (“Valley Forge holdsthat ‘psychological’ injury caused by ‘observation’ of

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‘conduct with which one disagrees’ is not a concreteinjury to a legally protected interest sufficient to conferstanding . . . Thus being there and seeing the offendingconduct does not confer standing”). Rarely, however,has any circuit been able to muster a majority to rebuffsuch a claim.

A notable exception to this trend is a recentdecision in the Seventh Circuit. In Freedom FromReligion Foundation, Inc. v. Obama, 2011 U.S. App.LEXIS 7678 (7th Cir. Apr. 14, 2011), the court vacatedthe judgment of a district court for lack of a justiciablecontroversy in an Establishment Clause challenge tothe President’s proclamation of a National Day ofPrayer. Noting that, under this Court’s precedents,“hurt feelings differ from legal injury,” the SeventhCircuit held that “unless all limits on standing are tobe abandoned, a feeling of alienation cannot suffice asinjury in fact.” Id. at *7, *9. Even in this instance, thecourt divided over the proper rationale. See id. at *15-*19 (Williams, J., concurring). The majority notedthat, even within the Seventh Circuit, courts haveperhaps not uniformly applied Valley Forge, thoughultimately the court concluded that the circuit’sinterpretation of Valley Forge requires more than mereobservation of offensive government conduct. Id. at *8-*10.

The lower courts continue to struggle with difficultyover these cases because of a fundamentalcontradiction: Valley Forge, et al., disallow standingbased upon the offense that flows from disagreement,even vigorous disagreement; yet the circuits rule thatbeing an offended observer can nevertheless beenough. Reconciling these incompatible premisesspawns endless arbitrary line-drawing, if not complete

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abandonment of any limits on standing. As the SecondCircuit observed,

Standing is often a tough question in theEstablishment Clause context, where theinjuries alleged are to the feelings alone. Thisis often the case in religious display cases wherethe fact of exposure becomes the basis for injuryand jurisdiction.

Cooper v. U.S. Postal Serv., 577 F.3d 479, 489 (2d Cir.2009) (footnote omitted). The Cooper court cited to anEighth Circuit case in which that court observed that“[n]o governing precedent describes the injury in factrequired to establish standing in a religious displaycase.” ACLU Neb. Found. v. City of Plattsmouth, 358F.3d 1020, 1028 (8th Cir. 2004), vacated on reh’g enbanc, 419 F.3d 772 (2005). The Cooper court furthernoted that in religious display cases, “lower courts areleft to find a threshold for injury and determinesomewhat arbitrarily whether that threshold has beenreached.” 577 F.3d at 490. Finally, the court quoted,id., from Chief Justice Rehnquist’s opinion dissentingfrom denial of certiorari in City of Edmond v.Robinson, 517 U.S. 1201, 1203 (1996): “[T]here areserious arguments on both sides of this question, theCourts of Appeals have divided on the issue, and theissue determines the reach of federal courts’ power ofjudicial review of state actions.”

What Chief Justice Rehnquist observed in 1996remains true today, as exemplified by the case at bar.This Court should grant review to resolve what injuryshould or should not suffice to establish standing inreligious display cases.

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III. THE DECISION BELOW, EMBRACING AN“INDELIBLE TAINT” APPROACH TOLEMON’S PURPOSE PRONG, CONFLICTSWITH DECISIONS OF THIS COURT ANDOF THE THIRD AND EIGHTH CIRCUITS.

The court below held that DeWeese’s “Philosophiesof Law in Conflict” display violated the so-calledpurpose prong of Lemon v. Kurtzman, 403 U.S. 602,612 (1971) (government action must have a secularpurpose). In so doing, however, the court made asweeping and insupportable conclusion, the force ofwhich conflicts squarely with the decision of this Courtin McCreary Cnty. v. ACLU, 545 U.S. 844 (2005), andwith decisions of the Third and Eighth Circuits.

Judge DeWeese’s declaration sets forth the purposebehind his display: to express his views about “twowarring legal philosophies that motivate behavior” andthe ill consequences he has personally witnessedsitting on the bench “of moving to a moral relativistphilosophy and abandoning a moral absolutist legalphilosophy.” App. 81a, ¶ 5. DeWeese further statesthat because the purpose behind his first display wasunclear and misinterpreted by a previous court as areligious one, he was “careful in the new 2006 displayto explain [his] philosophical purpose in the text of theposter.” App. 81a, ¶ 6.

Though acknowledging DeWeese’s statement of hisphilosophical purpose, the court noted, withoutexplanation, that “[i]t is questionable whetherDefendant has articulated a facially secular purpose.”App. 16a. Even assuming a secular purpose, however,the court found that because of the purported religiouspurpose behind DeWeese’s first display in 2000, any

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purpose behind the second display in 2006 had to bedisingenuous:

[A]ssuming for the sake of argument thatDefendant has stated a facially secular purpose,and giving that stated purpose its duedeference, the history of Defendant’s actionsdemonstrates that any purported secularpurpose is a sham.

Id. (emphasis added).

In other words, according to the court below, therewas nothing DeWeese could have done, said, oromitted with respect to his Philosophies of Law inConflict display to articulate a predominant secularpurpose, and thus satisfy the purpose prong of Lemon.According to the express language of the court, becauseof the history of DeWeese’s actions, i.e., the allegedreligious purpose behind DeWeese’s first display, “anypurported secular purpose” behind the second displaymust be, ipso facto, “a sham.” Despite DeWeese’sdeclaration setting forth a secular purpose behind hissecond display, the court held that it was tainted — infact, doomed — with an unconstitutional purpose fromthe start.

In short, the impermissible “taint” of DeWeese’sprior actions was inescapable.

The Sixth Circuit’s holding and rationale on thispoint conflicts squarely with this Court’s decision inMcCreary County v. ACLU, 545 U.S. 844 (2005). InMcCreary, this Court held that though a history ofreligious purpose is relevant in discerning whether agovernment purpose behind a challenged display is

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truly motivated by a predominant secular purpose,such history, standing alone, is far from dispositive. Infact, the Court made it clear that the defendantcounties in that case were not forever tainted by theirprevious religious purposes in posting the TenCommandments:

In holding the preliminary injunctionadequately supported by evidence that theCounties’ purpose had not changed at the thirdstage, we do not decide that the Counties’past actions forever taint any effort ontheir part to deal with the subject matter.We hold only that purpose needs to be takenseriously under the Establishment Clause . . . .

Id. at 843-44 (emphasis added).

What this Court held in McCreary it would notdo — decide that a defendant’s past action forevertaints it from dealing with the same subject matter inthe future — the Sixth Circuit did, holding thatDeWeese’s past actions indelibly tainted his ability todeal with the secular matters of law and morality inhis second display.

The conflict between the court below and McCrearyposes more than an abstract or purely theoreticalproblem. Left undisturbed, the decision below can beread to create a “one strike, you’re out” rule. Nogovernment official or body, once having been foundguilty of a “purpose prong” foot fault, could ever escapea fatal constitutional taint. This is not the law. Nodecision of this Court supports the notion of “once areligious purpose, always a religious purpose.”McCreary, in fact, expressly declares the contrary.

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In addition to conflicting with McCreary, thedecision below conflicts with decisions of the U.S.Courts of Appeals for the Third and Eighth Circuits.

In ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999)(Alito, J.), cert. denied, 520 U.S. 1265 (1997), the ThirdCircuit rejected the argument that Jersey City’s “priorhistory” should be fatally determinative whenanalyzing the city’s purpose behind modifying aChristmas holiday display. For decades, Jersey Cityexhibited a holiday display that featured a menorahand a Christmas tree. Id. at 94-95. The district courtpermanently enjoined the display as a violation of theEstablishment Clause. Id. at 95. After the injunctionwas ordered, Jersey City erected a modified displaythat included “not only a créche, a menorah, andChristmas tree, but also large plastic figures of SantaClaus and Frosty the Snowman, a red sled, andKwanzaa symbols on the tree.” Id. at 95. The city alsoposted signs indicating that the display was “one of aseries . . . put up by the City throughout the year tocelebrate its residents’ cultural and ethnic diversity.”Id.

The modified display and newly posted signs didnot assuage the plaintiffs. Relying on an observationfrom the district court, they argued that thealterations were nothing more than a “a ploy designedto permit continued display of the religious symbols.”Id. at 105. The court characterized the plaintiffs assuggesting that, “even if Jersey City could haveproperly erected the modified display in the first place,the City’s initial display, which was held to violate theEstablishment Clause, showed that the city officialswere motivated by a desire to evade constitutional

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requirements and that this motivation requiredinvalidation of the modified display.” Id.

The court unequivocally rejected this argument:“The mere fact that Jersey City’s first display was heldto violate the Establishment Clause is plainlyinsufficient to show that the second display lacked ‘asecular legislative purpose,’ or that it was ‘intended toconvey a message of endorsement or disapproval ofreligion.’” Id. (citations omitted). “[T]he mere fact thatcity officials miscalculate and approve a display that isfound by the federal courts to cross over the line ishardly proof of the officials’ bad faith.” Id. (footnoteomitted).

In Roark v. South Iron R-1 Sch. Dist., 573 F.3d 556(8th Cir. 2009), the Eighth Circuit reversed a districtcourt’s award of a declaratory judgment that a schooldistrict’s “actions in instituting a policy that willfacilitate the distribution of Bibles to elementaryschool students during the school day violates theEstablishment Clause . . . .” Id. at 561.

The school district implemented its literaturedistribution policy after it was sued over itslongstanding practice of allowing the Gideons todistribute Bibles to fifth grade students in theclassroom, during the school day, and in the presenceof a teacher or school administrator.

The Eighth Circuit reversed the district court’sdeclaratory judgment for several reasons. Mostrelevant here, the court held that the district court’sanalysis under Lemon placed too much emphasis onthe school’s “past practice” and the personal beliefs ofthe school board members. Id. at 564. This approach,

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the court noted, would “preclude the District from evercreating a limited public forum in which religiousmaterials may be distributed in a constitutionallyneutral manner.” Id. (emphasis in original).

“Past actions,” the Eighth Circuit held, “do not‘forever taint any effort [by a government entity] todeal with the subject matter.’” Id. at 564 (quotingMcCreary, 545 U.S. at 874) (brackets in original). Thefact that courts are to be “particularly vigilant” inmonitoring Establishment Clause compliance in thepublic school setting, see id. (quoting Edwards v.Aguillard, 482 U.S. 578, 583-84 (1987)), illustrates theforce of the Eighth Circuit’s refusal to tie the hands ofthe school district in future efforts.

In sum, the decision below embraces a doctrine of“indelible taint,” whereby a governmental actiondeemed to have a religious purpose will taint withunconstitutionality any future efforts to come intoconstitutional compliance. The Sixth Circuit’s holdingon this point thus conflicts with this Court’s holding inMcCreary and decisions of the Third and EighthCircuits.

IV. THE DECISION BELOW CONFLICTSWITH THIS COURT’S DECISIONSRECOGNIZING WITH APPROVAL THEROLE OF RELIGION IN THE COUNTRY’SHISTORY AND HERITAGE.

The Sixth Circuit perceived an unconstitutional“endorsement” in the articulation of a notion — thatmoral and religious precepts have an important role incivil governance — historically embraced by all threebranches of the federal government.

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5 Though the court quotes it as evidence of the poster’sendorsement of religion, App. 21a-22a, the poster nowherementions “the God of the Bible.” This statement is found only inDeWeese’s explanatory pamphlet, App. 88a, not challenged, oreven mentioned, in the ACLU’s complaint. App. D.

In addition to finding that DeWeese’s second posterwas not supported by a predominant secular purpose,the court below held that it constituted animpermissible endorsement of religion. Recalling itsdecision involving DeWeese’s first poster, Ashbrook,supra, the court found that “the poster specificallylinks religion and civil government,” and “thus violatesthe Establishment Clause under Lemon’s endorsementtest.” App. 22a-23a.

As described previously, DeWeese’s postercontrasts two opposing views of law and morality(“moral absolutes” vs. “moral relatives”) and in themargins, in considerably smaller type, states thatDeWeese believes that the shift in the 20th Centuryfrom “moral absolutism to moral relativism” hasbrought about an increase in crime and other socialills. After citing to John Adams, the Declaration ofIndependence, and the Ohio State Constitution, eachrecognizing the divine as a source of rights andmorality, DeWeese states that he “join[s] the Foundersin personally acknowledging the importance ofAlmighty God’s fixed moral standards for restoring themoral fabric of this nation.” App. 87a.5

DeWeese’s opinions regarding law and morality,and their relationship to religion, are no more animpermissible endorsement of religion violative of theEstablishment Clause than are the repeatedstatements of this Court that “religion has been closely

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identified with our history and government,” Sch. Dist.of Abington v. Schempp, 374 U.S. 203, 212 (1963); that“[o]ur history is replete with official references to thevalue and invocation of Divine guidance,” Lynch v.Donnelly, 465 U.S. 668, 675 (1984); that “[w]e are areligious people whose institutions presuppose aSupreme Being,” Zorach v. Clauson, 343 U.S. 306, 313(1952); that “[t]he history of man is inseparable fromthe history of religion,” Engel v. Vitale, 370 U.S. 421,434 (1962).

Indeed, there is no practical difference betweenwhat DeWeese opines in his poster and what bothArticle I, § 7, of the Ohio Constitution and theNorthwest Ordinance, 1 Stat. 50 (1789), provide: that“religion, morality, and knowledge” are “essential togood government.” DeWeese’s thoughts, in fact,coincide perfectly with what George Washington statedin his famous Farewell Address: “Of all thedispositions and habits which lead to politicalprosperity, religion and morality are indispensablesupports.” 5 The Founders’ Constitution 684 (P.Kurland & R. Lerner eds. 1987).

DeWeese’s opinions regarding law and morality,and their ultimate grounding in a transcendentreality, can best be summed up by no less than JusticeWilliam O. Douglas:

The institutions of our society are founded onthe belief that there is an authority higher thanthe authority of the State; that there is a morallaw which the State is powerless to alter; thatthe individual possesses rights, conferred by theCreator, which government must respect.

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McGowan v. Maryland, 366 U.S. 420, 562 (1961)(Douglas, J., dissenting).

In Van Orden v. Perry, 545 U.S. 677 (2005), ChiefJustice Rehnquist noted that this Court’sEstablishment Clause cases point, “Januslike,” in twodirections: one, “toward the strong role played byreligion and religious traditions throughout ourNation’s history”; the other, “toward the principle thatgovernmental intervention in religious matters canitself endanger religious freedom.” Id. at 683(plurality).

DeWeese’s poster, affirming nothing more thanwhat this Court has itself recognized and observed,rests comfortably among those cases acknowledgingthe “strong role” religion has played in our country’shistory and cultural heritage. The jurisprudentialprinciples DeWeese endorses have been part andparcel of the country’s history, heritage, and culturefor over two hundred years.

In arriving at the conclusion that DeWeese’sdisplay constitutes an impermissible endorsement ofreligion, the court below failed to address and discussany decision of this Court respecting the “strong role”of religion in society. Instead, the court simply lookedto whether a “link” could be established between“religion and civil government.” App. 22a-23a. If theSixth Circuit’s “link” standard is to be the test foradjudicating challenges under the EstablishmentClause, then it is difficult to fathom how othergovernmental recognitions of the divine could passconstitutional muster, from Ohio’s State Motto, “With

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6 Above the bench in Judge DeWeese’s courtroom is prominentlydisplayed the seal of the State of Ohio and its motto. App. 82a,¶ 9; 98a. The Sixth Circuit rejected an Establishment Clausechallenge to this motto by the same respondent here. ACLU v.Capitol Square Review & Advisory Bd., 243 F.3d 289 (2001) (enbanc).

God, All Things Are Possible,” Ohio Rev. Code § 5.06;6

to the National Day of Prayer, 36 U.S.C. § 119; to theUnited States motto, “In God We Trust,” 36 U.S.C.§ 302; to the Pledge of Allegiance’s “one nation underGod,” 4 U.S.C. § 4; to legislative prayer and militarychaplains; to this Court’s longstanding practice ofopening sessions with “God save the United States andthis Honorable Court.” Each of these state and federalaffirmations, like DeWeese’s display, link religion andcivil government without entangling the two andwithout coercing private citizens to affirm belief in thedivine.

In endorsing the view that society should return toan understanding of unchanging, transcendent moraltruths, DeWeese is simply endorsing a jurisprudenceof natural law, a jurisprudence that has shaped legalthinking and culture throughout the history ofWestern Civilization, including the Founders. App. G(Expert Report of Gerard V. Bradley). As Sir WilliamBlackstone, an important influence on the Founders,described it:

This law of nature, which, being coeval withmankind, and dictated by God himself, is, ofcourse, superior in obligation to any other. It isbinding over all the globe, in all countries, andat all times. No human laws are of any validity,if contrary to this; and such of them as are

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valid, derive all their authority, mediately, orimmediately, from this original.

Blackstone, Commentaries on the Laws of England, Bk1, sec. 2. Or, in the words of another influence on theFounders, John Locke:

Thus the law of nature stands as an eternal ruleto all men, legislators as well as others. Therules that they make for other men’s actions,must, as well as their own and other men’sactions, be conformable to the law of nature, i.e.to the will of God, of which that is a declaration,and the fundamental law of nature being thepreservation of mankind, no human sanctioncan be good, or valid against it.

Two Treatises of Government, Book II, Chapter XI,§ 135.

The fact that DeWeese’s understanding andacknowledgment of natural law principles maycoincide with the tenets of Judeo-Christian moralteachings is irrelevant. See Van Orden, 545 U.S. at690 (plurality) (“[s]imply having religious content orpromoting a message consistent with a religiousdoctrine does not run afoul of the EstablishmentClause”) (citations omitted).

The decision of the court below, holding thatDeWeese’s poster constitutes an impermissibleendorsement of religion, conflicts directly with thisCourt’s longstanding recognition and affirmation thatgovernmental acknowledgement of religion isconsistent with America’s heritage and herConstitution.

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CONCLUSION

This Court should grant review.

Respectfully submitted,

Jay Alan Sekulow Counsel of RecordStuart J. RothFrancis J. ManionWalter M. WeberGeoffrey R. SurteesEdward L. White III

Counsel for Petitioner

June 13, 2011