The Supreme Court Blesses the Texas Ten Commandments Tombstone

[Chapter 9, post #2]

Part II: Mythical and Deceptive Arguments of the Van Orden Majority[1]

“Presented to Moses on Mount Sinai by the hand of God on two stone tablets, the Ten Commanmdnts stand today after more than 3500 years as God’s law to the human race.  The first three are our obligation to God—the last seven our obligation to our fellow men.  They are a pattern for our human relations.  All the laws of the Country dealing with human relations are based upon the Ten Commandments.”[2]

Youth Guidance Commission

Fraternal Order of Eagles

E.J. Reugemer

Chairman, Judge District Court

St. Cloud, Minnesota

“The Texas Ten Commandments monument profoundly expresses a religious message: “there is a God, and that God has commanded rules for behavior.”

Erin Chimerinsky [3]

This post introduces the Supreme Court's decision in Van Orden v. Perry and sets the stage for discussion  of Myth #1: The Display of the Ten Commandments on Public Property in Washington, D.C. is Common.

In the only Ten Commandments case to be decided by the Supreme Court prior to Van Orden, the Court in 1980 held that a Kentucky statute requiring the posting of a copy of the Ten Commandments on the wall of each public classroom in the state was unconstitutional as a violation of the Establishment Clause.[4]  This decision did not expressly confine its holding to a public elementary or secondary schools, thus leaving the door open for further litigation with respect to public parks, state capitol grounds and courthouses – and along came the consolidated cases of Van Orden v. Perry (large granite monument on state capitol grounds) and McCreary County, Ky. v. ACLU of Ky. (copy of the Ten Commandments hung on a courthouse wall) in 2005.

On Black Monday,[5] the Supreme Court of the United States, in Van Orden, handed down one of its worst reasoned decisions of all time. That is the day the Court gave excuse after excuse why it permitted one of the pre-eminent symbols of the Christian faith to remain on the Texas capitol grounds notwithstanding the First Amendment prohibition against governmental acts “respecting an establishment of religion.”[6]  Van Orden v. Perry did for non-Christians what Plessy v. Ferguson[7] did for blacks in America – reaffirming their second class citizenship.

Van Orden[8] produced seven opinions:

·         Chief Justice Rehnquist announced the judgment of the Court and wrote an opinion in which Justices Scalia, Kennedy and Thomas joined.

·         Justice Scalia wrote a concurring opinion.

·         Justice Thomas wrote a concurring opinion.

·         Justice Breyer wrote an opinion concurring in the judgment.

·         Justice Stevens wrote a dissenting opinion in which Justice Ginsburg joined.

·         Justice O’Connor wrote a dissenting opinion.

·         Justice Souter wrote a dissenting opinion in which Justices Stevens and Ginsburg joined.

Chief Justice Rehnquist’s plurality opinion and the concurring opinions of Justices Scalia, Thomas and Breyer read like Christian Apologetics – argument in support of Christianity (and, here, the display of its iconography on public property).  Perhaps to persons unfamiliar with the facts of the case and Establishment Clause jurisprudence, their arguments may appear logical and persuasive.  However, as one who has extensively studied Judge E.J. Ruegemer, the Fraternal Order of Eagles Ten Commandments program and the many cases involving Ten Commandments monument cases, the arguments of the Van Orden majority are disturbingly trumped up – with sole purpose of justifying the unconstitutional act of displaying the full text of a Christian version of the Ten Commandments on government property – in short, government endorsement of Christianity.

Over the next several weeks, Secular Law will review a dozen deceptive, if not purely erroneous and mythical, arguments made by the Van Orden majority.  At the conclusion of this series, I believe that ample evidence will have been presented that a reasonable, objective person would conclude that:

1.      The Van Orden decision was clearly wrongly decided,

2.      The U.S. Supreme Court should sua sponte overturn its 2005 decision and

3.      Remand the case back to the U.S. Court of Appeals for the Fifth Circuit, which in turn would direct the District Court to issue an injunction ordering the removal of the Eagles-donated Ten Commandments tombstone from the Texas state capitol grounds.

To set the stage for Myth #1: The Display of the Ten Commandments on Public Property in Washington, D.C. is Common, it is important to recall four facts about the Eagles-donate Ten Commandment monument in Austin, Texas.  (See also Chapter 6 – Eagles Monuments are Jesus Tombstones.) 

• First, the Fraternal Order of Eagles had a religious purpose for donating the monuments to cities and states.[9]
• Second, the large granite monuments are permanent displays. 
• Third, permanent monuments on public property are “government speech.”[10]
• And fourth, the Texas monument displays the full English text of a Christian version of the Ten Commandments.

— ♦ — 

To start:

Everything is bigger in Texas!

The six-feet tall, Eagles-donated Ten Commandments Monument on the grounds of the Texas State Capitol (behind the capitol building). Austin, Texas. Photograph by J. Williams. (Aug. 26, 2002) Source: http://en.wikipedia.org/wiki/File:Ten_Commandments_Monument.jpg

This is what JUMPS out at passersby: the Ten Commandments I AM the Lord thy God. Thou shalt have no other gods before me.   Though shalt not make to thyself any graven    Images. Thou shalt not take the Name of the Lord    thy God in vain. Remember the Sabbath day, to keep it holy. Honor thy father and thy mother that the    days may be long upon the land which the    Lord thy God giveth thee. Thou shalt not kill. Thou shalt not commit adultery. Thou shalt not steal. Thou shalt not bear false witness against    thy neighbor. Thou shalt not covet thy neighbor’s house. Thou shalt not covet thy neighbor’s wife, nor    his manservant, nor his maid servant, nor his     cattle nor anything that is thy neighbors.

 The take-a-way from the above photograph is that those who walk by the Texas's Eagles-donated tombstone to Jesus Christ, including Thomas Van Orden in the early 2000s, see one of the pre-eminent symbols of Christianity with the full text of an English version of the Ten Commandments.

In contrast, no one who observes the 11 depictions of the Ten Commandments (presented in future posts) listed by Chief Justice Rehnquist in his plurality opinion in Van Orden will see a partial or full English text of any version of the Ten Commandments.  Instead, they will see:

    3 – Blank tablets

    3 – Tablets with Roman numerals *

    2 – Ten Commandments not depicted

    1 – Tablets with Hebrew text commanding murder, adultery, theft

    1 – Tablets with a Hebrew version of the Ten Commandments

    1 – To be determined (photo of gates of the courtroom, Supreme Court requested)

* There is an ongoing debate whether the Roman numerals I-X (1-10) represent the Ten Commandments, the Bill of Rights (the first ten amendments to the Constitution) or “law” generally.  The issue need not be discussed here as the critical point is that Roman numerals I-X are not remotely equivalent to the full English text of the Ten Commandments.  Needless to say, a blank tablet leaves the tablet’s meaning to one’s imagination. 

Next post: Myth #1: The Display of the Ten Commandments on Public Property in Washington, D.C. is Common.

 __________

Footnotes:

1. This is a continuation of my Sept. 20 post and part of Chapter 9 of my forthcoming book: Supreme Scandal: The Supreme Court Blesses the Ten Commandments.  
2. The first paragraph on the back of a 1950s Fraternal Order of Eagles Ten Commandments poster.  Judge E.J. Reugemer was the driving force behind the Eagles Ten Commandments Program while he was chairman of the organization’s Youth Guidance Commission. 
3. 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 15.  Mr. Chimerinsky argued on behalf of Thomas Van Orden before the Supreme Court.
4. Stone v. Graham, 449 U.S. 39 (1980).
5. June 27, 2005 – the day the Supreme Court hand down its decision in Van Orden v. Perry, 545 U.S. 677 (2005).  In the other case, McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844 (2005), Justice Breyer switched sides – resulting in McCreary County being correctly decided (in the view of this author) under Establishment Clause jurisprudence.
6. Establishment Clause of the First Amendment: “Congress shall make no law respecting an establishment of religion.” Const., amend. 1.
7. Plessy v. Ferguson, 163 U.S. 537 (1896) – upheld the constitutionality of racial segregation even in public accommodations under the doctrine of “separate but equal.  See Wikipedia at http://en.wikipedia.org/wiki/Plessy_v._Ferguson for a summary of the case involving racial segregation in railroads.
8. A transcript of oral arguments in Van Orden v. Perry is available here and the slip opinions are available here.
9. The Fraternal Order of Eagles purpose for erecting over 150 granite Ten Commandment monuments on public property, as well as its distribution of thousands of paper copies of the Ten Commandments and 250,000 copies of On Eagles Wings ( a 96-page comic book distributed to boy scouts), was to spread what the organization believed to be God’s laws of human behavior.
10. Pleasant Grove City v. Summum, 555 U.S. 460 (2009) – the court held that “the City’s decision to accept certain privately donated monuments while rejecting respondent’s is best viewed as a form of government speech.”  Justice Alito’s majority opinion, slip opinion at 18.  Slip Opinion available at http://www.law.cornell.edu/supremecourt/text/07-665.