In the Supreme Court of the United States
Lance Davenport, et al., Petitioners
American Atheists, et al., Respondents
On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit
BRIEF OF THE FAMILY RESEARCH COUNCIL, LAW ENFORCEMENT LEGAL DEFENSE FUND, AND 15 MEMBERS OF THE U.S. SENATE AND U.S. HOUSE OF REPRESENTATIVES AS AMICI CURIAE IN SUPPORT OF PETITIONERS
- Whether the Court should resolve the 2-2-1 circuit split over the appropriate test for evaluating whether a passive display with religious imagery violates the Establishment Clause.
- Whether this Court should set aside the "endorsement test" -- as five Justices have urged over the past three decades -- and adopt instead the "coercion test."
- Whether a memorial cross placed on state land by the Utah Highway Patrol Association, a private organization, to commemorate fallen state troopers is an unconstitutional establishment of religion.
INTEREST OF AMICI CURIAE
The Family Research Council (FRC) is a 501(c)3 nonprofit public-policy organization headquartered in Washington, D.C., that exists to develop and analyze governmental policies that affect families in the United States. Founded in 1983, FRC advocates legislative and regulatory measures that protect and strengthen family rights and autonomy, and assists in legal challenges to statutes and administrative actions detrimental to family interests. FRC informs and represents the interests of 39 state organizations and over 500,000 citizens on a daily basis. This case is of vital importance to FRC's Center for Religious Liberty.
The Law Enforcement Legal Defense Fund (LELDF) is a 501(c)3 nonprofit organization headquartered in Arlington, Virginia. LELDF exists to provide legal assistance to police officers who must defend themselves in court regarding actions the officer takes in the line of duty. LELDF provides this assistance through financial assistance to officers for legal representation, and also legal assistance in serving as co-counsel. LELDF also educates the public and especially youth in the proper role of law enforcement in keeping the peace. LELDF is interested in protecting memorials to officers who make the ultimate sacrifice while protecting the public.
Remaining amici curiae are Members of Congress of the United States Senate and the United States House of Representatives. Each of these Senators and Representatives currently represents constituents whose interests are implicated by whether this Court decides to grant certiorari in this case. Those Members of Congress are: in the United States Senate: Orrin G. Hatch of Utah and Mike Lee of Utah, where this case originated, and Jim DeMint of South Carolina; in the United States House of Representatives: Robert Aderholt of Alabama, Todd Akin of Missouri, Vicky Hartzler of Missouri, Tim Huelskamp of Kansas, Walter Jones of North Carolina, Jim Jordan of Ohio, Doug Lamborn of Colorado, Bob Latta of Ohio, Thaddeus McCotter of Michigan, Mike Pence of Indiana, Lamar Smith of Texas, and Marlin Stutzman of Indiana.
SUMMARY OF ARGUMENT
The endorsement of religion test under the Establishment Clause has proved as unworkable in practice as it is unsound in principle. This Court has issued a long series of narrowly divided and splintered decisions that have confused the lower courts, baffled the public, and given government officials strong incentives to suppress legitimate religious expression in order to avoid the costs and hazards of litigation.
Scholarly commentators are as sharply divided as the Court is about the proper interpretation of the Establishment Clause, but there is wide agreement among scholars about one thing: the endorsement test does not represent either a correct interpretation of the Constitution or a workable basis for a coherent jurisprudence. There is simply no hope that anyone will figure out how to clarify the endorsement test so as to avoid the serious problems that it has manifestly generated during its short and troubled life.
The Court should now replace the endorsement test with the traditional understanding that simply requires government to refrain from coercing participation in any religion or religious exercise or otherwise directly benefiting religion to such a degree as to create a state religion. That approach worked well for a very long time before it was abandoned, and it comes much closer than the endorsement test to the original meaning of the First Amendment.