[Chapter 9, post #10]
[Updated 10/14/2013]
“The 22 acres surrounding the Texas State Capitol contain
17 monuments and 21 historical markers commemorating the ‘people, ideals, and
events that compose Texan identity.’”
Chief Justice Rehnquist[1]
From the opening[2] of Chief Justice’s plurality opinion, we are to infer that the Texas State Capitol grounds is like a museum and the Eagles-donated Ten Commandments monument is merely one exhibit among 38 depicting the history of Lone Star Texas. What’s the fuss all about?
The problem, quite simply, is that the Establishment Clause prohibits governmental acts “respecting religion.” The monument is not an acknowledgment of any kind. The plain fact is that the Eagles-donated Ten Commandments monument commands the citizens of Texas to obey the religious laws of the majority religion. It’s the only religious monument in this faux “museum.” There are no exhibits representing minority faiths or nonfaith groups. Texas has done that which the Constitution prohibits.
The museum defense is implied in the Chief Justice’s opening statement, but as I will discuss the defense is not applicable here. The museum (or library) defense is not an exception to the Establishment Clause; rather it defines a situation where the Establishment Clause is not called into play because a particular religion is not being preferred, endorse, promoted or the subject of hostility. Here are two examples:
- A museum has an exhibit with religious artifacts from 5,000 B.C.E. to 500 C.E., including artifacts associated Buddhism, Christianity, Judaism, Paganism and other religions of the period.
- A public library has a section of books on religion, including books about Atheism, Buddhism, Christianity, Hinduism, Humanism, Islam, Judaism, Scientology, Shinto, Sikhism, Taoism, Unitarian Universalism, Wicca, Zoroastrianism and other religions.
The Establishment Clause is not called into play, above, assuming that the exhibits in the situation of the museum and book selections in the situation of the library[3] are neutral – neither preferring one religion over another, nor religion over nonreligion.[4] It would also be constitutionally permissible to have a display of artifacts (or books) representing a single religion, as long as, the display is temporary and other religions are featured on a rotating basis. However, this is not the situation of Austin, Texas where the Eagles-donated Ten Commandments monument is the sole and permanent religious monument.
There are many problems with the majority’s rationales in Van Orden v. Perry justifying its inclusion on the state capitol grounds:
1.
First, and foremost, by displaying the Eagles-donated
Ten Commandments monument, the state of Texas has endorsed Christianity and
made it the “preferred” religion of Texas. By doing so, it stigmatizes persons of
minority religions and nonbelief as second class citizens and their
beliefs as false.
3.
Chief Justice Rehnquist deceptively fails to mention
that the Eagles-donated Ten Commandments monument is the lone religious
monument on the Texas State Capitol grounds.
4.
There is nothing unique about the Ten Commandments to
history of the state of Texas.
5.
The Ten Commandments monument is “both larger in size
and somewhat more strategically placed – alongside a sidewalk pathway from the
Capitol building to the state supreme court building – than any of the sixteen
other monuments and twenty-one historical markers.”[6]
6.
Under a later decision of the Court, Pleasant Grove City v. Summum, a
permanent monument on public property is the “speech” of the governmental
entity owning the property.[7] While the government is free to determine its
own speech, the speech must comport with the Establishment Clause.[8]
7.
The parties to the lawsuit “stipulated that ‘the
Capitol, together with its grounds and the monuments erected and maintained
there, constitute a National Historic Landmark.’ They also stipulated that ‘the
Ten Commandments monument is an element of a legally-protected National
Historic Landmark.’”[9] In truth, the Eagles-donated Ten
Commandments Monument is not an “element” of the legally-protected National
Historic Landmark, inasmuch as, it does not qualify for inclusion under
established guidelines.[10]
The simple truth is that the Eagles-donated Ten Commandments monument is an orange tree in an apple orchard.[11] Under our Constitution, government was granted no authority by the people to decide whose religious symbols should be promoted and whose should be ignored.[12]
Accordingly,
the author finds that the museum defense is not available to the State of Texas
as a justification for not abiding by the prohibitions of the Establishment Clause.
[1] Van
Orden v. Perry, 545 U.S. 677, 681 (2005).
[2] The quote is from the second paragraph. The first paragraph reads: “The question here
is whether the Establishment Clause of the First Amendment allows the display
of a monument inscribed with the Ten Commandments on the Texas State Capitol
grounds. We hold that it does.” Id., at 681.
[3]
Altho there are more books on the library’s
shelves associated with Christianity than other religions and most of the people
in the community self-identify themselves with that religion, the diversity of books
(for purposes of this example) is arguably not unreasonable under the circumstances.
[4] The neutrality principle is discussed more fully in Myth #6: The Lemon Test Is Not “Useful.”
[4] The neutrality principle is discussed more fully in Myth #6: The Lemon Test Is Not “Useful.”
[5] Latin: “of his, her, its, or their own kind;
unique.” Dictionary.com available at http://dictionary.reference.com/browse/sui+generis. See also
Webster.com: “constituting a class alone”; available at http://www.merriam-webster.com/dictionary/sui+generis.
[6] William W. Van
Alstyne, Ten Commandments, Nine Judges, and Five Versions of One Amendment –
The First. ("Now What?"), 14 Wm. & Mary Bill Rts. J. 17
(2005), http://scholarship.law.wm.edu/wmborj/vol14/iss1/3, at 17.
[8] Id.,
468.
[9] Van
Orden v. Perry, 351 F.3d 173, 175 fn. 2 (5th Cir. 2003).
[10] This stipulation was either made out of
ignorance, or was fraudulently made. [Avrahaum Segol is the source of this information
based on a letter sent to him from a Texas agency. Further clarification forthcoming.]
[11]
The two do not mix like oil and water.
[12] Neutrality test for interpreting the
Establishment Clause:
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