WOLFRAM&HART

March17,2014 TheHonorableNathanDeal GovernorofGeorgia 206WashingtonStreet 111StateCapitol Atlanta,Georgia30334 Re: HouseBill702

DearGovernorDeal: 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. PriortothevoteonHB702,SenatorSteveHensonrequestedalegalopinion 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,counselsconclusionwasthatitispossiblethat HB702asitcurrentlyexistswouldnotsurviveanEstablishmentClausechallenge. Legislative counsels letter noted that itisimportanttorememberthatactualcomments made by members of the General Assembly may be scrutinized by a court to determine both government purpose and effect[S]entiments expressedbymembersoftheGeneralAssembly 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 counsels letter consider the legislative history of HB 702, which the Supreme Court has said(inbothMcCrearyCountyv.ACLUandVanOrden
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v. Perry) can be relevant to a constitutional analysisofareligiousdisplay,inthatabillshistory canshedlightontothetruepurposesandintentionsunderlyingitspassage. 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 theywillhaveuponanyultimateconstitutionalreviewofHB702. I. HB702Prefiled(LC400439) On December 5, 2013, Rep. Greg Morris prefiled HB 702withtheHouseclerk. The bills 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,andthefulltextoftheproposedstatutereadasfollows: 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 sidetheTen Commandments and depicting together on the opposite side the Preambles to the GeorgiaConstitutionandUnitedStatesConstitution. (b) Unless public safety concerns warrant postponement, such monument shall be procuredandplacedassoonaspracticable." Rep.MorrismadeseveralpublicstatementsregardingHB702thathelptoilluminatehis intentions in proposing it. In December 2013, Rep.MorristoldCreativeLoafing"Wehave 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 GeorgiaStateCapitol.1 Thesamemonth,Rep.MorristoldFox5AtlantanewsTheCommandments,Ibelieve, are the basis of which thefreedomsthatareexpressedintheUnitedStatesConstitutionandthe Georgia Constitution are derived.2 The Fox reporter did not apparentlypressRep.Morristo further explain this position, as the Ten Commandments are a decalogue of commands and prohibitions on behavior, not freedoms,andonlythreeofthetencommandments(VI,VIII,and IX)beararelationshiptomodernAmericanjurisprudence.3 In February 2014, Rep. Morris stated I dont think (there would be) grounds for a lawsuit and Were notestablishingareligionandnotforcinganybodytobesubjectedto one.
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In making this statement, Rep. Morris attempted to represent thelegalstandardunder which

the monument would be scrutinized, and his characterization is wholly inaccurate,asdetailedin the letterfrom theOfficeofLegislativeCounsel. AhistoricmonumenttoJesusChristhimselfon the Capitol steps would not beestablishingastatereligionorforcingindividualstobesubjected toone,butitwouldnonethelessbeundeniablyunconstitutional. In March 2014, Rep. Morris posted a press releasetohisFacebookpage,whereinhe

GeorgialawmakerwantstoreplaceThomasWatsonstatuewithTenCommandments monument,CreativeLoafing,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,thefirstfourCommandments,ifenactedintolaw,wouldbeindirectviolationofreligious freedomsguaranteedbytheFirstAmendment. 4 HousecommitteeapprovesbilltoplaceTenCommandmentsmonumentonCapitolgrounds, AtlantaJournalConstitution,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 thatourconservativevaluesareprotected inourstate.5 II. HouseStatePropertiesCommittee HB 702 was referred to the House StatePropertiesCommittee,whereitwastakenup at the committeesmeetingofFebruary24,2014. Althoughvideoofthemeetingisavailableon the committees 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,andthuslittlecanbegleanedfromthefootageofthismeeting.7 III. HB702CommitteeSubstitute(LC400586S) 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 specificallywithanEstablishmentClausechallengeinmind. AsthevideooftheHouse State PropertiesCommitteedoesnotappeartodepictanydiscussionofrewrites,itwouldseem 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 admittedthatitsfirstandforemostpurpose

https://www.facebook.com/notes/staterepgregmorris/repmorrisannounceshousepassageofhb 702hb772/10151910357141036 6 http://www.house.ga.gov/committees/enUS/CommitteeArchives182.aspx 7 AlthoughnotdirectlyrelatedtoHB702,itisperhapsrelevanttothecontextoftheState PropertiesCommitteemeetingofFebruary24thatitbeganwithChairmanBarbaraSimsasking ViceChairmanEmoryDunahootoopenthemeetingwithaprayer.Rep.Dunahoothenspokethe followingprayertothoseinattendance:HeavenlyFather,wecometoyouandliftyouup,Lord,we thankyouforyourmanyblessings.Wepray,HeavenlyFather,thatyoubewitheachfamily representedhere,thatyouputyourshieldofprotectionaroundthem.WatchoverthemHeavenly Father,andwejustprayforguidanceaswecomebeforeyou,aswelisten,Lord,toissuesthat youllguideusontherightpath.AllthesethingsweprayinJesusname.Amen.

was to erect a monument depicting the Ten Commandments. In the revised bill, the purpose wasnowtoauthorizeplacementofamonumentofreligiousliberty. Second, the bill as originally introduced proposed that the monumentbelocatedonthe 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 placedwithintheCapitolbuildingorontheCapitolgrounds. Third, the original bill stated that the Ten Commandments were to be depicted on one side of the granite monument andthetwoPreamblestogetherontheoppositeside,suggestinga certainprominenceto begiventothereligioustext. Therevisedbillremovesthatspecificdesign 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 financedthroughprivatedonations. The fact that these changes were seen as necessary, to preempt certain inevitable objections thatwouldhaveariseninresponsetotheoriginalbill,servestohighlightRep.Morris original intent in drafting and submitting the original bill. He had proposed a statefunded monument to Ten Commandments to be placed at theCapitolentrance,andbythetimethebill reached committee, it was surely obvious even toRep.Morrishimselfthatsuchaproposalhad zero chance of surviving judicial scrutiny. And so the bills most obvious textual faults were sandedoff. 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 DeclarationofIndependence. Without the committee meeting transcript, it is impossible to know thepreciseintention 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.HehadmadenosimilarreferencestotheDeclarationofIndependence. Nonetheless, one likely explanation for this change is that whereas the Preamble tothe United States Constitution is athoroughlysecularstatement ofprinciple,theexcerptedsentence 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, allthreeoftheveryshort texts selected by the General Assembly to be included on this historic granite monument contain religious invocations.9 By contrast, the nonreligious Preamble totheU.S.Constitution was stricken from the proposed monument, and the central governmental document that does concernthefreedomsweenjoy,i.e.theBillofRights,wasneverconsideredforinclusion.

ItisnotanirrelevantdistinctiontoidentifywhichGeorgiaConstitutionthispreambleisapartof. ThispreambletextfirstappearedintheGeorgiaConstitutionof1877,andhasbeenincludedinall subsequentstateconstitutions.However,theGeorgiaconstitutionsof1865and1868containeda differentpreamble,andtheGeorgiaconstitutionsof1777,1789,1798,and1861hadnopreambleat all.HB702doesnotspecificallystatewhichGeorgiaconstitutionthemonumentstextshouldbe takenfrom,butRep.MorrisremarksontheHousefloorconfirmedthatheintendsthepreambleto thecurrentconstitution. 9 TheTenCommandmentshas100words,theGeorgiapreamble53,andtheDeclarationexcerpt just35.

IV.

HouseFloorDebate HB 702 came before the Georgia House for a vote onMarch3,2014.10 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 dont think that theres 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. ThatsahistoricalfactthatIbelieve. When asked where he would like the granite monument erected, Rep. Morris stated that We are leaving thedesignuptothemandtheplacementupto [theCapitol ArtsStandards Commission]. However, the [General Assemblys monument final approval] committee will approve, or maybe disapprove, because we believe its 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 thatRep.Morris,the bills author, proposed and promoted the monument with the expressintentionofitbeingplacedina 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. WhenaskedwhyagranitemonumentdepictingtheTenCommandmentsisnecessary,giventhat 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 deservesaprominentdesignandaprominentplacement,amoreprominentplacement.

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Videoofthefloordebateisavailableathttp://www.gpb.org/lawmakers/2014/day30crossoverday

When asked why he chose this year to propose thismonument,Rep.Morrisexplained that he conceived the idea in thewakeofGovernorDealsrecentdecisiontoremovethestatue 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 thathedoesntbelievethatastonemonument displaying the text of this one particular religions laws would be a controversial choice for the Capitol steps, or that Georgians of other religions might find such a prominent monument to MosaiclawattheCapitoltobeinappropriateorunwelcoming. 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 TheDeclarationofIndependenceisoneofmyfavoritedocuments,and again, theyreferenceaCreator. Hethusadmittedthathisintentinsubstitutingtheexcerptfrom 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 JudeoChristianvaluestheybelieved and theyreflectedinthedocumentsthatgiveusoureconomic,politicalandreligiousfreedoms,I supposetheywouldbefreetodoso.

Such an interpretation of religious freedom in this context is patently ridiculous. Rep. Morris suggests that anyreligiousgroupmightbeabletoplaceamonumentonstategrounds...if and only if they can convince a majority ofthe236membersoftheGeneralAssembly,plusthe Governor, that said religious groups belief system was an influence on a defined handful of American founding documents. Not only does such a narrowlydefined standard for

monuments necessarily discriminateagainstreligionsthatwerenotyetrepresentedinAmericaat the time of the founding of the UnitedStates(e.g.,Buddhism, Hinduism,Shinto),butbyitsown definition it excludes entirely any religious faith founded within the last two hundredyears,such as Mormonism or Bah'. 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 shouldbeallowedtoberepresentedwithanymonumentsattheCapitol. V. SenateFloorDebate 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 groundsthatitwassusceptibletoaconstitutionalattack. Following his comments, Sen. Henson took questions fromhisfellowSenators,starting

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Videoofthefloordebateisavailableathttp://www.gpb.org/lawmakers/2014/day37

with Sen. John Albers, the bills Senate sponsor. AmongSen.Alberscommentsindefenseof HB 702 on the Senate floor were that We are a JudeoChristian nation and, in a question directed at Sen. Henson, Didnt God create ALL the laws, Senator? But perhaps most importantly, Sen. Albers flatly declared that the point of the monumentwastohonorGodand thoseTenCommandments. 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. Jacksons intent appeared to be to demonize Sen. Henson in front of his colleagues bypubliclypressinghimon theissueofhispersonalfaith.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 thats my faith, my religion, but I believe theres one God. And ifanybodyouttherehasfaithandtheres oneinklingofdoubtas far as its constitutionality, or if you have something politically to gain, theres another day and another court and another judgment. Andyoubetterbereadytoanswerthatquestion. Idlike to scold all yall individuallybutIwouldsaywhipyoubutIprobablycantbutIjustseeall

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Sen.Jacksonalsobeganwithaninscrutablequestionthathedidnotfurtherexpoundupon, askingSen.HensonWouldyoubelievethatnothingisnothinguntilsomethingissomething? Sen.Hensoninterpretedthisasbeingaquestionaboutcosmology,andreferredSen.Jacksonto therecentrevivalofthetelevisionprogramCosmos.

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thesethingscomingatonetime,Idontthinkitsanaccident.13 Finally, on March 14,twodaysaftertheSenateapprovedthebill,SenatesponsorJohn 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 valuesthatmade thiscountrygreat.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 involveconsiderationof thelegislativehistoryofthebillandcommentsmadebylegislatorsabout the bill, as part of the courtsexaminationofthelegislativepurposeandintentionbehindthebill. And, as detailed above, the legislative history and the legislators comments are going to be highly detrimental, if not fatal, to the bills ability to withstand constitutional scrutiny. The legislative history of HB 702, even as brief as it is, shows that it was originally proposed with suchtermsthatwouldhavemadeafindingofunconstitutionalityinevitable. Andeventhoughthe text of the bill itself was strategically altered in anticipation of a constitutional challenge, the comments of the bills sponsors and supporters make their purpose and intentions abundantly clear. Their support of this monument is undeniably religiously motivated, and they are

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Sen.Thompsonsremarksaboutanotherdayandanothercourtandanotherjudgmentandall thesethingscomingatonetime,IdontthinkitsanaccidentappeartoinvokeChristian eschatologyregardingJudgmentDay,millennialism,andtheEndTimes. 14 http://roswell.patch.com/groups/politicsandelections/p/johnalbersprovidesgeorgiageneralassem blyupdate

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simultaneously hostile to the notion of any similar monuments to other, nonJudeoChristian belief systems. And although the design orlocationofthemonumentcannotbeanalyzedatthis time, astheCapitolArtsStandardsCommissionhasyettosettleoneither, thishistoryandthese remarks have already been recorded, and cannot be amended or undone to remedy the bills faults. The zealousness of the bills own sponsors and supporters will ultimately be key to the monumentsfailure. Additionally, one other factor detrimental to the monument, but not specifically addressed by the Office of LegislativeCounsel,istheinherentnewnessofit. InVanOrden,a critical factor in the monuments 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, onewhich mightalsocallintoquestionthecurrentdisplayontheCapitolsfirstfloor. For these reasons and more, HB 702 is unlikely to pass constitutional muster. Consequently, the further approval of HB 702will serveonlytoexposetheStateofGeorgiato 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 executivedecisionshouldbetovetoHB702. Verytrulyyours,

LorenCollins

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