Supreme Scandal: The Supreme Court Blesses the Ten Commandments

This post begins the introduction of draft portions of a book that I am working on -- Supreme Scandal: The Supreme Court Blesses the Ten Commandments. It puts the spotlight on the Fraternal Order of Eagles ("Eagles") Ten Commandments program in which the Eagles distributed tens of thousands of copies of the Ten Commandments and erected more than 150 granite Ten Commandment tombstones to Jesus Christ in parks, state capitol grounds, courthouse steps and a public school in 34 states.

Chapter 9 - Van Orden v. Perry: The Supreme Court Blesses the Ten Commandments

“The sole function of the monument on the grounds
of Texas’ State Capitol is to display the full text of 
one version of the Ten Commandments.”                                                                           

Justice Stevens[1]

 [Updated 9/20/2013]

The Van Orden v. Perry decision is so badly tainted with deceptive reasoning and false statements that the Supreme Court of the United States should take the extreme measure of reversing it sua sponte.[2]

This chapter provides a summary of the trial and appellate courts’ decisions, and what I have dubbed The Twelve Van Orden Myths or deceptive reasons that the Supreme Court majority gave in support of affirming the Fifth Circuit’s decision.  A very poorly reasoned decision, as is the case in Van Orden, strongly suggests the decision is unjust and wrong – even more, it suggests a lack of fidelity to the Constitution.

Despite our Constitution’s 222-year explicit prohibition against government sponsorship of religion,[3] our society is deeply divided about the role of religion.  “[A]ll government practices endorsing religion will be divisive, as will any enforcement of the Establishment Clause.”[4]  Not surprisingly, more than 20 cities and states have been sued over Eagles-donated Ten Commandments monuments since the first was erected in a memorial park in Ambridge, Pennsylvania in 1955.  The same year, an Eagles-donated Ten Commandments monument was erected on the state capitol grounds in Denver, Colorado.[5]

The Eagles-donated Ten Commandments monument cases reviewed in the previous chapter (Chapter 8), Van Orden discussed in this chapter and subsequent litigation (Chapter 10) are emblematic of the Christian Right’s quest for dominion and the efforts of Separationists to protect their minority rights afforded under the First Amendment.

Background

Thomas Van Orden[6] was a homeless attorney[7] living in Austin – the capitol of Texas.  He regularly visited the capitol grounds and would pass by a Ten Commandments monument on his way to the law library.  The monument was donated to the state by the Fraternal Order of Eagles in 1961.  

It was a bit odd that the Eagles-donated monument was the only religious monument among numerous monuments and markers.[8]  We know from earlier chapters that the Eagles had a religious purpose for donating the monument.  I’ll recap the Eagle’s intent, as well as the intent of Texas in receiving the gift, later in this chapter.

U.S. District Court

Van Orden filed a law suit pro se[9] in the U.S. District Court for the Western District of Texas seeking removal of the Eagles-donated monument from the Texas state capitol grounds alleging that its display violated the Establishment Clause of the First Amendment.

Van Orden testified that he was “not religious”[10] and “does not acknowledge the existence of any god, and he specifically does not adhere to either the Christian faith or the Jewish faith.”[11]  He also testified that the religious display in question “symbolizes a state policy to favor the Jewish and Christian religions over other religions and over non-believers, which ‘policy’ the Plaintiff finds to be personally offensive and also contends is prohibited by the Establishment Clause.”[12]

The district court made five significant findings on the merits of the case.  First, the court deferring to the Texas state legislature’s pretextual reason accepting[13] the Eagle’s monument in finding that the legislature had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency – thus satisfying the first prong of the Lemon test.[14]  In Myth #7: Texas Had a Secular Purpose, I explain that this justification was pretextual.  As Justice Steven eloquently states in his dissenting opinion: “The sole function of the monument on the grounds of Texas’ State Capitol is to display the full text of one version of the Ten Commandments.”[15]

Second, the district court noted that “the United States Secretary of the Interior designated the Texas State Capitol and its grounds as a National Historical Landmark” and brought “[its grounds] within the provisions of the National Historic Preservation Act of 1966.”[16]  However, as I will discuss in Myth #8: Apples are Oranges (The Museum/Library Defense), the Eagles-donated Ten Commandments monument doesn’t qualify for protection under the Act, nor does it qualify for protection under the Court established “museum defense.”

Third, the district court found that “Neither the location nor the physical characteristics of the Ten Commandments monument would lead a reasonable observer to conclude that the State is seeking to advance, endorse or promote religion by permitting the display.”  There is absolutely no basis in reality to support this finding.  Certainly, a reasonable Atheist, Buddhist , Hindu or Secular Humanist would not agree with the court – for obviously the display of one of the pre-eminent symbols of the Christian faith, in an environment where symbols of no other faiths are displayed, inherently advances, endorses and promotes the Christian religion.[17] 

Fourth, the district court described the Eagles-donated monument as a “passive monument” – holding that the monument wasn’t “coercive.”   I discuss the deceptiveness of this argument in Myth #9: The Eagles Tombstones are Passive.”

And fifth, the district court, in quoting Anderson v. Salt Lake Corporation,[18] held that ordering of the removal of the Eagles-donated monument would be hostile to religion[19] (and therefore, violate the second prong of the Lemon test).  I discuss this specious argument in Myth #11: Removal of the Tombstone Would Constitute Hostility Towards Religion.  I’ve quoted Anderson in footnote 18.   It is odd to me that Anderson says the monument involves “no compulsion” when, in fact, the monument commands people to obey ten (or eleven) laws of the Judeo-Christian god. 

The bottom line is that the district court, having found that Texas did not violate either of the first two prongs of the Lemon test,[20] denied Van Orden’s request for injunctive and declaratory relief.

U.S. Court of Appeals

Thomas Van Orden also represented himself before the U.S. Court of Appeals for the 5th Circuit.  In his appeal, Van Orden argued that “the district court’s finding that the State had a secular purpose for the display is not supported by the evidence and that a reasonable viewer would perceive the display of the decalogue as a State advancement and endorsement of religion favoring the Jewish and Christian faiths.”[21]  Predictably, the state replied that “the display serves a secular purpose as found by the district court and a reasonable observer would not conclude that the State is seeking to advance, endorse, or promote religion by its display.”[22]
 
Judge Higginbotham’s opinion shows the strong bias on the three-judge panel when he informs us:

Neither government nor this Court can or should ignore the significance of the fact that a vast portion of our people believe in and worship God and that many of our legal, political and personal values derive historically from religious teachings. Government must inevitably take cognizance of the existence of religion.[23]

The court’s bias is further demonstrated by its interpretation of “neutrality.”  Correctly starting with the premise “a state cannot favor religion over non-religion or one religion over another”[24] goes to say that “government cannot be ruthlessly separated” with showing “hostility toward religion” which is not required by the religion clauses of the First Amendment.[25]  Notably, the appellate court repeats the misuse of the museum defense[26] and reasonable observer test.[27]  As mentioned in my review of the district court’s decision, I this fabricated Christian Apologetic argument in Myth #11: Removal of the Tombstone Would Constitute Hostility Towards Religion.

In sum, the appellate court affirmed the district court’ holdings that Texas’s display of the Eagles-donated Ten Commandments tombstone on its capitol grounds did not violate the First Amendment.[28]

In my next post, I’ll start discussing the Supreme Court’s decision and 

The Twelve Van Orden Myths:

·  

    Myth #1: The Display of the Ten Commandments on Government Property is Common.

·      Myth #2: The Eagles are Not a Religious Organization.

·      Myth #3: The Ten Commandments Are Part of Texas’s Political and Legal History.

·      Myth #4: Our Institutions Presuppose a Supreme Being.

·      Myth #5: We've Continuously Acknowledge God Since 1789.

·      Myth #6: The Lemon Test Is Not Useful.

·      Myth #7: Texas Had a Secular Purpose.

·      Myth #8: Apples are Oranges (The Museum/Library Defense).

·      Myth #9: The Eagles Tombstones are Passive.

·      Myth #10: The Eagles’ Tombstones are Nonsectarian.

·      Myth #11: Removal of the Tombstone Would Constitute Hostility Towards Religion.

·      Myth #12: 40 Years Maketh a Wrong Right. 

---

[1]  Van Orden v. Perry, 545 U.S. 677, 707 (2005) (Justice Stevens dissenting opinion).  The Court held that the display of a Ten Commandments monument on the Texas state capitol grounds in Austin did not violate the Establishment Clause.

[2]  On its own initiative.

[3]  The Bill of Rights – the first ten amendments the Constitution – went into effect on December 15, 1791 after being ratified by the requisite number of states.  The Establishment Clause of the First Amendment provides: “Congress shall make no law respecting an establishment of religion.”  Const., amend. 1.

[4]  Erwin Chimerinsky, Why Justice Breyer Was Wrong in Van Orden v. Perry, 14 Wm. & Mary Bill Rts. J. I (2005), http://scholarship.law.wm.edu/wmborj/vol14/iss1/2 , at 2-3.

[5]  Fraternal Order of Eagles Aeries and Auxiliaries Milestones available at http://www.foe.com/SiteDefault.aspx?SiteId=271&SiteContentId=6915&TabIndex=1&NavId=3162.

[6]  Thomas David Van Orden. (September 1, 1944 – November 11, 2010).   http://en.wikipedia.org/wiki/Thomas_Van_Orden.

[7]  Van Orden’s license to practice law was “inactive.”

[8]  “The 22 acres surrounding the Texas State Capitol contain 17 monuments and 21 historical markers.” Van Orden, at 681.

[9]  Van Orden represented himself at the trial level and the U.S. Court of Appeals.

[10]  Van Orden v. Perry, No. A-01-CA-833-H, 2002 WL 3237462 at *2 (W.D. Tex Oct. 2, 2002).

[11]  Id.

[12]  Id.

[13]  The monument was accepted by a joint resolution of the House and Senate in early 1961.

[14]  Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971) – for a statute to be valid under the Establishment Clause, the Lemon test requires that (first prong) “the statute must have a secular legislative purpose, (second prong) “its principal or primary affect must be one that neither advances or inhibits religion” AND (third prong) the statute must not foster an excessive government entanglement with religion.”

[15] Van Orden v. Perry, 545 U.S. 677, 707 (2005) (Justice Stevens dissenting opinion). 

[16] Van Orden, 2002 WL 3237462 at *5.

[17]  Eventho the text of the Ten Commandments on the Eagles-donated monument favors a Christian translation, I believe that even a reasonable Jewish observer would conclude that the state of Texas sought to advance, endorse or promote religion by permitting the display.  And I doubt that an objective Christian would deny with a straight face that the monument advances, endorses and promotes religion.

[18]  Anderson v. Salt Lake Corporation, 475 F.2d 29, 34 (10th Cir. 1973): “It does not seem reasonable to require removal of a passive monument, involving no compulsion, because its accepted precepts, as a foundation for law, reflect the religious nature of an ancient era.” (Emphasis added.)

[19]  Van Orden, 2002 WL 3237462 at *5.

[20]  Van Orden, 2002 WL 3237462 at *3, the parties had agreed that the “entanglement” prong of the Lemon test was “not in issue.”

[21]  Van Orden v. Perry, 351 F.3d 173, 176-77 (5th Cir. 2003).

[22]  Id., at 177.

[23]  Id.

[24]  Id. 178.

[25]  Id.

[26]  Id., at 180-81.

[27]  Id., at 182.

[28]  Id.