Example 3.10

Takeaway point 3.10: On rare occasions, adopt a distinctive tone to track the theme of your motion or brief.

Few lawyers have the moxie to intentionally sound different from most other lawyers.

This case reflects a fitting way to end our discussion of facts, as it demonstrates that facts (and the way they are presented) can alter the outcome of a dispute. In 2005, two similar cases reached the Supreme Court at the same time. Both challenged the constitutional right of state governments to display the Ten Commandments outside of government buildings. Texas won by a 5-4 vote; Kentucky lost by the same margin. Why did the similar cases produce opposite outcomes? Because of the facts. In Kentucky, the display of the Ten Commandments provoked challenges almost immediately after the monuments were installed outside a number of Kentucky courthouses. The Supreme Court’s opinion noted the “short (and stormy) history” of those courthouse displays (which were removed, slightly altered and reinstalled, and challenged again). Writing for the majority, Justice Breyer emphasized the divisive effect of Kentucky’s monuments.

By contrast, the Court observed that Texas’s six-foot-tall monument had stood unchallenged for forty years, was donated by a nongovernmental secular organization, and was designed to showcase “the historical ’ideals’ of Texans.” Additionally, the Ten Commandments appeared in a nonreligious context, like a religious artifact in a secular museum. Notice how the brief’s prose reflects this theme.

Source:Texas’s brief in Perry v.

The brief emphasizes the vintage of Texas’s monument: it is “historic.”

The grounds are literally a museum, and the Board’s mission — to preserve Texas’s culture — reflects a secular mission (i.e., to advance Texas’s culture, rather than any religious agenda).

This adjective seems innocuous. Not so. It signals that no state official accompanies visitors, discusses the Ten Commandments, or forces visitors to look at them. That detail is designed to protect the monument against the Court’s various Establishment Clause tests, which assess whether a state is promoting or endorsing religion.

This adjective also plays a role: it signals that a secular monument is bigger than the monument of the Ten Commandments. Elsewhere, the brief mentions that the statue of the Ten Commandments is one of the smallest displays at the statehouse. Notice, too, that the tour’s sequence matters: secular content comes first, again making the Ten Commandments seem like a small afterthought in this display. The next two monuments are also secular.

This phrase sounds like the words of a tour guide. The style reflects the theme.

Notice that the sheer number of monuments — seventeen — suggests that including the Ten Commandments was not designed to achieve a religious goal. Taking readers on a virtual tour of the grounds helps to demonstrate that the Ten Commandments do not dominate the site.

This fact is a two-edged sword. On the one hand, it shows that there is a second religious monument, which is harmful: the site is more religious than it would otherwise be. But this detail also raises implicitly the helpful point that all sorts of references to God (such as on U.S. currency) might become unlawful if mere religious words, without government endorsement, created a constitutional problem. This disclosure avoids hiding a bad fact (which would jeopardize the lawyers’ credibility) and — even more importantly — hints at the difficulty that the Court would face in drawing lines between acceptable and unacceptable religious content. The next paragraph (in a deliberately long sentence) mentions that another statue depicts a girl wearing a cross around her neck. The same principles apply to that disclosure.

By mentioning the Ten Commandments in a long sentence, surrounded (both physically and in words) by numerous secular monuments, the brief downplays the religiosity of the display.