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March 17, 2014 The Honorable Nathan Deal Governor of Georgia 206 Washington Street 111 State Capitol Atlanta, Georgia 30334 Re: House Bill 702
Dear Governor Deal: On March 12, 2014, the Georgia Senate voted to approve House Bill 702, which authorizes the placement at the state Capitol of a granite monument depicting the Ten Commandments. Prior to the vote on HB 702, Senator Steve Henson requested a legal opinion from the Office of Legislative Counsel regarding the constitutionality of HB 702 and its proposed monument. In response, counsel prepared a fivepage letter memorandum. After reviewing the caselaw and the text of HB 702, counsel’s conclusion was that “it is possible that HB 702 as it currently exists would not survive an Establishment Clause challenge.” Legislative counsel’s letter noted that “it is important to remember that actual comments made by members of the General Assembly may be scrutinized by a court to determine both government purpose and effect…[S]entiments expressed by members of the General Assembly concerning passage of HB 702 could also be viewed by a court as impermissible religious endorsement, regardless of whether the display alone evokes such endorsement.” The letter memorandum itself did not reference, review, or analyze any comments made by General Assembly members. Nor did legislative counsel’s letter consider the legislative history of HB 702, which the Supreme Court has said (in both McCreary County v. ACLU and Van Orden
v. Perry) can be relevant to a constitutional analysis of a religious display, in that a bill’s history can shed light onto the true purposes and intentions underlying its passage. The purpose of this letter is to provide such a review both of the legislative history of HB 702 and the comments of its sponsors and supporters, to illustrate the consequences that they will have upon any ultimate constitutional review of HB 702. I. HB 702 Prefiled (LC 40 0439) On December 5, 2013, Rep. Greg Morris prefiled HB 702 with the House clerk. The bill’s purpose was stated as being “to provide for placement of a monument depicting the Ten Commandments, Preamble to the state Constitution, and Preamble to the United States Constitution,” and the full text of the proposed statute read as follows: O.C.G.A. § 503105 (a) There shall be placed upon the capitol grounds at the steps leading to the front entrance of the state capitol building a granite monument depicting on one side the Ten Commandments and depicting together on the opposite side the Preambles to the Georgia Constitution and United States Constitution. (b) Unless public safety concerns warrant postponement, such monument shall be procured and placed as soon as practicable." Rep. Morris made several public statements regarding HB 702 that help to illuminate his intentions in proposing it. In December 2013, Rep. Morris told Creative Loafing "We have the constitutional right to display it….[W]hen we, as legislators, swear an oath, we swear it to the Constitution of the United States and the Constitution of Georgia. I believe the freedoms we enjoy in those documents are directly derived from the Ten Commandments." He further
clarified his intention to display these three documents in "most important central place" at the Georgia State Capitol.1 The same month, Rep. Morris told Fox 5 Atlanta news “The Commandments, I believe, are the basis of which the freedoms that are expressed in the United States Constitution and the Georgia Constitution are derived.”2 The Fox reporter did not apparently press Rep. Morris to further explain this position, as the Ten Commandments are a decalogue of commands and prohibitions on behavior, not freedoms, and only three of the ten commandments (VI, VIII, and IX) bear a relationship to modern American jurisprudence.3 In February 2014, Rep. Morris stated “I don’t think (there would be) grounds for a lawsuit” and “We’re not establishing a religion and not forcing anybody to be subjected to one.”
In making this statement, Rep. Morris attempted to represent the legal standard under which
the monument would be scrutinized, and his characterization is wholly inaccurate, as detailed in the letter from the Office of Legislative Counsel. A historic monument to Jesus Christ himself on the Capitol steps would not be establishing a state religion or forcing individuals to be subjected to one, but it would nonetheless be undeniably unconstitutional. In March 2014, Rep. Morris posted a press release to his Facebook page, wherein he
“Georgia lawmaker wants to replace Thomas Watson statue with Ten Commandments monument”, Creative Loafing, Dec. 9, 2013. http://clatl.com/freshloaf/archives/2013/12/09/georgialawmakerwantstoreplacethomaswatsonsta tuewithtencommandmentsmonument 2 http://www.myfoxatlanta.com/video?autoStart=true&topVideoCatNo=default&clipId=9639421#axzz2v 7g2gGdQ 3 Indeed, the first four Commandments, if enacted into law, would be in direct violation of religious freedoms guaranteed by the First Amendment. 4 “House committee approves bill to place Ten Commandments monument on Capitol grounds”, Atlanta JournalConstitution, Feb. 24, 2014. http://www.ajc.com/news/news/stateregionalgovtpolitics/housecommitteeapprovesbilltoplacet encommand/ndbCS/
stated that he wanted to erect the Ten Commandments monument because “With attacks on our religious freedoms occurring every day, it is vital that our conservative values are protected in our state.”5 II. House State Properties Committee HB 702 was referred to the House State Properties Committee, where it was taken up at the committee’s meeting of February 24, 2014. Although video of the meeting is available on the committee’s website, much of the discussion is unfortunately inaudible.6 The bulk of the discussion was between Rep. Morris and Rep. Buckner, neither of whom were provided microphones, and thus little can be gleaned from the footage of this meeting.7 III. HB 702 Committee Substitute (LC 40 0586S) The version of HB 702 as passed by the House State Properties Committee differed from the original bill in several distinct ways. Most of these changes appear to have been designed specifically with an Establishment Clause challenge in mind. As the video of the House State Properties Committee does not appear to depict any discussion of rewrites, it would seem that the changes to HB 702 were made by Rep. Morris prior to the February 24 committee meeting. First, the bill as originally introduced openly admitted that its first and foremost purpose
https://www.facebook.com/notes/staterepgregmorris/repmorrisannounceshousepassageofhb 702hb772/10151910357141036 6 http://www.house.ga.gov/committees/enUS/CommitteeArchives182.aspx 7 Although not directly related to HB 702, it is perhaps relevant to the context of the State Properties Committee meeting of February 24 that it began with Chairman Barbara Sims asking Vice Chairman Emory Dunahoo to open the meeting with a prayer. Rep. Dunahoo then spoke the following prayer to those in attendance: “Heavenly Father, we come to you and lift you up, Lord, we thank you for your many blessings. We pray, Heavenly Father, that you be with each family represented here, that you put your shield of protection around them. Watch over them Heavenly Father, and we just pray for guidance as we come before you, as we listen, Lord, to issues that you’ll guide us on the right path. All these things we pray in Jesus’ name. Amen.”
was to erect a monument depicting the Ten Commandments. In the revised bill, the purpose was now “to authorize placement of a monument of religious liberty.” Second, the bill as originally introduced proposed that the monument be located on the Capitol steps, perhaps the most prominent location at the Capitol after the rotunda. In the revised bill, the specific location of the monument is left unspecified, except that it is still to be placed within the Capitol building or on the Capitol grounds. Third, the original bill stated that the Ten Commandments were to be depicted on one side of the granite monument and the two Preambles together on the opposite side, suggesting a certain prominence to be given to the religious text. The revised bill removes that specific design instruction. Fourth, whereas the original bill was silent on funding, and thus implied that the monument would be paid out of the state budget, the revised bill states that no public funds should be expended on the design or procurement of the monument, which would instead be financed through private donations. The fact that these changes were seen as necessary, to preempt certain inevitable objections that would have arisen in response to the original bill, serves to highlight Rep. Morris’ original intent in drafting and submitting the original bill. He had proposed a statefunded monument to Ten Commandments to be placed at the Capitol entrance, and by the time the bill reached committee, it was surely obvious even to Rep. Morris himself that such a proposal had zero chance of surviving judicial scrutiny. And so the bill’s most obvious textual faults were sanded off. Additionally, the revised bill made one curious but substantive alteration to the content
of the monument. Whereas the original bill had included the Preamble to the United States Constitution on the monument, the revised bill instead substituted the second sentence of the Declaration of Independence. Without the committee meeting transcript, it is impossible to know the precise intention in making this substitution. It is curious in that Rep. Morris, in multiple public statements, had explicitly identified the U.S. Constitution as being one of the three documents he said was deserving of special recognition, and that the Constitution was derived or inspired by the Ten Commandments. He had made no similar references to the Declaration of Independence. Nonetheless, one likely explanation for this change is that whereas the Preamble to the United States Constitution is a thoroughly secular statement of principle, the excerpted sentence of the Declaration of Independence specifically invokes a deity (“endowed by their Creator”). The Preamble to the Georgia Constitution of 1983 already made a similar invocation (“relying upon the protection and guidance of Almighty God”).8 Consequently, all three of the very short texts selected by the General Assembly to be included on this “historic granite monument” contain religious invocations.9 By contrast, the nonreligious Preamble to the U.S. Constitution was stricken from the proposed monument, and the central governmental document that does concern “the freedoms we enjoy”, i.e. the Bill of Rights, was never considered for inclusion.
It is not an irrelevant distinction to identify which Georgia Constitution this preamble is a part of. This preamble text first appeared in the Georgia Constitution of 1877, and has been included in all subsequent state constitutions. However, the Georgia constitutions of 1865 and 1868 contained a different preamble, and the Georgia constitutions of 1777, 1789, 1798, and 1861 had no preamble at all. HB 702 does not specifically state which Georgia constitution the monument’s text should be taken from, but Rep. Morris’ remarks on the House floor confirmed that he intends the preamble to the current constitution. 9 The Ten Commandments has 100 words, the Georgia preamble 53, and the Declaration excerpt just 35.
House Floor Debate HB 702 came before the Georgia House for a vote on March 3, 2014.10 Rep. Morris
took the floor to answer questions about his bill. When asked why he wanted to build a monument to the Ten Commandments, Rep. Morris stated “I don’t think that there’s any denying that the JudeoChristian values were flavored by the Ten Commandments, were the ones we based our economic freedoms on, our political freedoms and our religious freedoms. That’s a historical fact that I believe.” When asked where he would like the granite monument erected, Rep. Morris stated that “We are leaving the design up to them and the placement up to [the Capitol Arts Standards Commission]. However, the [General Assembly’s monument final approval] committee will approve, or maybe disapprove, because we believe it’s an important historical monument with important historic significance, so we want to see it designed as such and placed as such.” Wherever any monument is ultimately situated, it is abundantly clear that Rep. Morris, the bill’s author, proposed and promoted the monument with the express intention of it being placed in a prominent location at the Capitol, and with its design prominently featuring the Ten Commandments. Indeed, Rep. Morris reiterated this intention in another response on the House floor. When asked why a granite monument depicting the Ten Commandments is necessary, given that a plaque with the Ten Commandments is already displayed on the first floor of the Capitol alongside plaques of several other historical documents, Rep. Morris replied “I believe it deserves a prominent design and a prominent placement, a more prominent placement.”
Video of the floor debate is available at http://www.gpb.org/lawmakers/2014/day30crossoverday
When asked why he chose this year to propose this monument, Rep. Morris explained that he conceived the idea in the wake of Governor Deal’s recent decision to remove the statue of Thomas Watson from the Capitol steps. Rep. Morris then explained that although a monument to any given historical person could be potentially contentious or controversial, he thought that a monument to the Ten Commandments could “stand the test of time.” The unstated premise of Rep. Morris’ remark here is that he doesn’t believe that a stone monument displaying the text of this one particular religion’s laws would be a controversial choice for the Capitol steps, or that Georgians of other religions might find such a prominent monument to Mosaic law at the Capitol to be inappropriate or unwelcoming. When asked why he selected the other two documents for inclusion on his “historic granite monument,” Rep. Morris replied that he included the passage from the Declaration of Independence because “The Declaration of Independence is one of my favorite documents, and again, they reference a Creator.” He thus admitted that his intent in substituting the excerpt from the Declaration of Independence was because of its religious language, not for a secular purpose. When asked if the monument prescribed by HB 702 would open the door to other, nonJudeoChristian religious monuments on Capitol grounds, Rep. Morris responded by saying “If the Legislature were comprised of enough people who had the view that the Declaration of the Independence, the Constitution, the Georgia Constitution had some other basis for the freedoms that we enjoy today other than the JudeoChristian values they believed and they reflected in the documents that give us our economic, political and religious freedoms, I suppose they would be free to do so.”
Such an interpretation of religious freedom in this context is patently ridiculous. Rep. Morris suggests that any religious group might be able to place a monument on state grounds...if and only if they can convince a majority of the 236 members of the General Assembly, plus the Governor, that said religious group’s belief system was an influence on a defined handful of American founding documents. Not only does such a narrowlydefined standard for
monuments necessarily discriminate against religions that were not yet represented in America at the time of the founding of the United States (e.g., Buddhism, Hinduism, Shinto), but by its own definition it excludes entirely any religious faith founded within the last two hundred years, such as Mormonism or Bahá'í. It also, of course, makes the erection of any other religious monument contingent on winning the support of a majority of both houses of the Georgia General Assembly, in essence turning any monumentapproval process into a religious popularity contest. Thus, although he couched his response in terms of religious
accommodation, Rep. Morris basically declared that he believed only Christianity and Judaism should be allowed to be represented with any monuments at the Capitol. V. Senate Floor Debate Having passed the Georgia House, HB 702 was taken up by the Georgia Senate on March 12, 2014.11 The bill was read aloud on the floor. Senate Minority Leader Steve Henson then spoke about the letter memorandum prepared by the Office of Legislative Counsel, mentioned above, and advised his fellow Senators to vote against HB 702 on the grounds that it was susceptible to a constitutional attack. Following his comments, Sen. Henson took questions from his fellow Senators, starting
Video of the floor debate is available at http://www.gpb.org/lawmakers/2014/day37
with Sen. John Albers, the bill’s Senate sponsor. Among Sen. Albers’ comments in defense of HB 702 on the Senate floor were that “We are a JudeoChristian nation” and, in a question directed at Sen. Henson, “Didn’t God create ALL the laws, Senator?” But perhaps most importantly, Sen. Albers flatly declared that the point of the monument was “to honor God and those Ten Commandments.” A subsequent questioner, Sen. Bill Jackson, repeatedly asked Sen. Henson to state whether, if HB 702 were ultimately to be found unconstitutional, “would you be glad?” Even when Sen. Henson firmly stated that he was voting against the bill, Sen. Jackson insisted that Sen. Henson state for the record if he would be “glad” if the monument were defeated in a constitutional challenge. The entire exchange was uncomfortable, in that Sen. Jackson’s intent appeared to be to demonize Sen. Henson in front of his colleagues by publicly pressing him on the issue of his personal faith.12 After Sen. Henson yielded the floor, it was then occupied by Senate Minority Whip Steve Thompson, who stated that he had not yet made up his mind about how he would vote (he ultimately voted against the bill), but nonetheless ended his remarks saying “I want to suggest to you, because I do believe in Jesus Christ and that’s my faith, my religion, but I believe there’s one God. And if anybody out there has faith and there’s one inkling of doubt as far as its constitutionality, or if you have something politically to gain, there’s another day and another court and another judgment. And you better be ready to answer that question. I’d like to scold all y’all individually but I would say ‘whip you’ but I probably can’t but I just see all
Sen. Jackson also began with an inscrutable question that he did not further expound upon, asking Sen. Henson “Would you believe that nothing is nothing until something is something?” Sen. Henson interpreted this as being a question about cosmology, and referred Sen. Jackson to the recent revival of the television program Cosmos.
these things coming at one time, I don’t think it’s an accident.”13 Finally, on March 14, two days after the Senate approved the bill, Senate sponsor John Albers put out a press release confirming his intention that the monument serve to highlight a particular religious tradition to Capitol visitors, saying “This monument will stand outside the hallowed walls of the Gold Dome as a continual reminder of our founding principles of life, liberty and the pursuit of happiness while also highlighting the JudeoChristian values that made this country great.”14 VI. Conclusion As the Office of Legislative Counsel correctly observed, any judicial analysis of the constitutionality of HB 702 and the Ten Commandments monument it orders will inevitably involve consideration of the legislative history of the bill and comments made by legislators about the bill, as part of the court’s examination of the legislative purpose and intention behind the bill. And, as detailed above, the legislative history and the legislators’ comments are going to be highly detrimental, if not fatal, to the bill’s ability to withstand constitutional scrutiny. The legislative history of HB 702, even as brief as it is, shows that it was originally proposed with such terms that would have made a finding of unconstitutionality inevitable. And even though the text of the bill itself was strategically altered in anticipation of a constitutional challenge, the comments of the bill’s sponsors and supporters make their purpose and intentions abundantly clear. Their support of this monument is undeniably religiously motivated, and they are
Sen. Thompson’s remarks about “another day and another court and another judgment” and “all these things coming at one time, I don’t think it’s an accident” appear to invoke Christian eschatology regarding Judgment Day, millennialism, and the End Times. 14 http://roswell.patch.com/groups/politicsandelections/p/johnalbersprovidesgeorgiageneralassem blyupdate
simultaneously hostile to the notion of any similar monuments to other, nonJudeoChristian belief systems. And although the design or location of the monument cannot be analyzed at this time, as the Capitol Arts Standards Commission has yet to settle on either, this history and these remarks have already been recorded, and cannot be amended or undone to remedy the bill’s faults. The zealousness of the bill’s own sponsors and supporters will ultimately be key to the monument’s failure. Additionally, one other factor detrimental to the monument, but not specifically addressed by the Office of Legislative Counsel, is the inherent newness of it. In Van Orden, a critical factor in the monument’s favor was that it had been present on the capitol grounds for over forty years without objection; indeed, the petitioner himself had seen it for years before legally challenging it. The monument proposed by HB 702, on the other hand, has no similar decades of history in its favor. Instead, it is likely to earn a prompt legal challenge, one which might also call into question the current display on the Capitol’s first floor. For these reasons and more, HB 702 is unlikely to pass constitutional muster. Consequently, the further approval of HB 702 will serve only to expose the State of Georgia to constitutional challenges that the state is highly likely to lose. It would be both legally and financially irresponsible to subject the state to these eventualities, and thus the responsible executive decision should be to veto HB 702. Very truly yours,
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