Supreme Scandal – The Supreme Court Blesses the Ten Commandments

[Chapter 9, post #15]
[Updated 10/21/2013]

The Blessing

Despite a constitutional prohibition against government establishment of religion, Van Orden v. Perry exemplifies the weakness of the American system – minority rights exist only at the whim of the majority. 

This chapter discussed in detail the majority’s use of 12 mythical, disingenuous or misleading arguments to justify the presence of a Judeo-Christian monument on public property.

As a lifelong student of the Constitution, I know, and you know as well, that the text of the First Amendment prohibits government from preferring one religion over another, or religion over nonreligion.  In spite of this mandate, the Supreme Court egregiously erred when it gave the state of Texas the green light to continue its preference (indeed, its endorsement) of Christianity over other religions and nonreligion.  

And so it came to pass that on June 26, 2005 – Black Monday – the Supreme Court blessed the Fraternal Order of Eagles donated tombstone to Jesus Christ on the Texas State Capitol grounds. 

This infidelity to the Constitution can only be explained by the stranglehold that Christianity has upon the majority of the Court.

Epilog

Predictably, the Supreme Court’s the Black Monday decision had an immediate impact. Federal courts held for the cities of Plattsmouth, Nebraska,[1]  Fargo, North Dakota[2] and  Everett, Washington[3] – essentially finding no constitutionally significant difference between the Eagles-donated Ten Commandments monument being litigated and the monument that was the subject of Van Orden v. Perry.

Thomas Van Orden passed away on November 11, 2010.  Others, including myself, continue to carry the torch of eternal vigilance.  It is my dream that someday the courts will truly respect the First Amendment and order the remaining Eagles-donated Ten Commandments tombstones to Jesus Christ off public property.

Separationists, far from giving up, have file lawsuits seeking removal of Eagles-donated monuments in Fargo, North Dakota,[4] and New Kensington, Pennsylvania[5] Connellsville, Pennsylvania[6] – all currently pending.

As if the Eagles-donated monuments haven’t created enough calamity, Dr. Mike Ritze, a member of the Oklahoma House of Representatives, and his family donated a Ten Commandments monument to the state of Oklahoma.  It was erected on the Oklahoma State Capitol grounds in November 2012.  The Ritze-donated monument was intentionally designed to look like the Eagles-donated Ten Commandments monument on the Texas State Capitol grounds in an attempt to fall under the coattails of Van Orden v. Perry.  Not fooled, the ACLU of Oklahoma filed a lawsuit in August 2013 seeking its removal.[7]  “The monument’s placement at the Capitol has created a more divisive and hostile state for many Oklahomans,” said Ryan Kiesel, ACLU of Oklahoma’s Executive Director. “When the government literally puts one faith on a pedestal, it sends a strong message to Oklahomans of other faiths that they are less than equal.”[8]

The Christian Right’s War of Dominion rages on.

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[1]  ACLU of Nebraska Found. v. City of Plattsmouth, 419 F.3d 772 (8th Cir., Aug. 19, 2005): “Like the Ten Commandments monument at issue in Van Orden, the Plattsmouth monument makes passive—and permissible—use of the text of the Ten Commandments to acknowledge the role of religion in our Nation's heritage.”

[2]  Twombly v. City of Fargo, 388 F. Supp. 2d 983, (D. N.D., Sept. 29, 2005).

[3]  Card v. City of Everett, 520 F.3d 1009 (9th Cir., March 26, 2008).

[4]  Red River Freethinkers v. City of Fargo, Docket No. 3:2008cv00032 (D. N.D., complaint filed April 18, 2008), (8th Cir., pending).

[5]  Freedom From Religion Foundation v. New Kensington-Arnold School District, Docket No. 2:2012cv01319  (W.D. Pa., complaint filed Sept. 14, 2012).

[6]  Freedom From Religion Foundation v. Connellsville Area School District, Docket No. 2:2012cv01406 (W.D. Pa., complaint filed Sept. 27, 2012).

[7]  Prescott v. Oklahoma Capitol Preservation Commission, Docket No. CV-2013-1768 (Ok. Cnty. D. Ct., complaint filed Aug. 19, 2013).  

[8]  ACLU of Oklahoma’s 8/20/2013 announcent of the lawsuit is available at http://acluok.org/2013/08/aclu-of-oklahoma-challenges-state-capitol-ten-commandments-monument/.

Myth #12: 40 Years Maketh a Wrong Right

[Chapter 9, post #14]

“Forty years after the monument's erection and six years after Van Orden began to encounter the monument frequently, he sued.” [1]

Chief Justice William Rehnquist

All too often, justice is slow in coming.  Justice delayed is justice denied.[2]

Justice Breyer’s concurrence in Van Orden provided the pivotal fifth vote upholding lower court rulings that the display of an Eagles-donated tombstone to Jesus Christ on the Texas State Capitol grounds did not violate the Establishment Clause.  For Justice Breyer, it was time to move after forty years on rather than to correct an injustice.[3]  He opined: 

This display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one.[4]

The essence of Chief Justice Rehnquist’s and Justice Breyer’s argument is that the passage of time makes a claim stale – that if the alleged violation was really significant, the person offended would have brought the claim sooner.  There may be a tinge of truth to the argument, but it’s a very weak argument in this case where the monument’s display is not merely a past violation of the First Amendment, but a continuing violation as well.

Time, money and frustration are at major reasons why potential plaintiffs decline to bring or delay bringing meritorious lawsuit.  There are four other considerations which explain the time delay.

First, Separationists didn’t wait 40 years to file the first lawsuit challenging the placement of Eagles-donated Ten Commandments monuments on public property.  In 1972, a lawsuit was filed against the Salt Lake City seeking the removal its Eagles-donated monument.[5]  Numerous other challenges to Eagles-donated monuments were filed prior to the decision in Van Orden being handed down on June 27, 2005, and others have been filed since.  Lawsuits challenging Eagles-donated Ten Commandments monuments are pending in Fargo, North Dakota,[6] Connellsville, Pennsylvania[7] and New Kensington, Pennsylvania.[8]

Second, Ten Commandment monument cases are not a criminal case or other type where material evidence will be lost due to the passage of time, including the memory of witnesses.  There is no harm if it takes one year, ten years or 40 years to bring the lawsuit – for the religious nature of the monuments speaks for themselves.  Each and every day is an ongoing violation of the First Amendment.

Third, there is also a flip side to the Chief Justice and Justice Breyer’s argument.  Nonbelievers are the most hated group in America of which Van Orden was a member.[9]  While I am not aware that Thomas Van Orden felt intimidated, I can that during the course of my representing plaintiffs in Newdow v. Roberts,[10] one of the plaintiffs had had her house burned down by an arsonist who was upset with prior litigation the plaintiff was involved in.  Further, Presidents Lincoln and Kennedy were shot to death by assassins who ideologically disagreed with their policies.  Similarly, churches have been burned down, persons hanged, beaten or burned to death by persons who disagreed with the victim’s race, religion, national origin or gender identity.  There is an ugly side to America to which a lawsuit exposes a person to..[11]

And fourth, plaintiffs seek to avoid the stigmatization as a second class citizen that follows the filing a lawsuit challenging a practice of the majority religion

Justice Souter offered a most delightful rebuttal to the Chief Justice and Justice Breyer:

“I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause.”[12]

In this myth, I have tried to make the point that year after year of wrongdoing does not make an unconstitutional act right.  It took 58 years to correct the insidious “separate but equal” holding in Plessy v. Ferguson[13] and 133 years to grant women the right to vote.[14]  Perhaps 40 years is not such a slow walk after all!

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[1]  Van Orden v. Perry, 545 U.S. 677, 682 (2005).

[2]  See Justice delayed is justice denied at http://en.wikipedia.org/wiki/Justice_delayed_is_justice_denied.

[3]  The Eagles-donated monument was placed on the Texas State Capitol grounds in 1961.

[4]  Ibid., at 704.

[5]  Anderson v. Salt Lake City Corp., 348 F.Supp. 1170, 1171 (D. Utah, 1972); reversed 476 F.2d 29 (10th Cir. 1973).

[6]  Red River Freethinkers v. Fargo, No. 10-3214 (8th Cir., May 25, 2012) – reversed U.S. Dist. Court’s denial of standing and remanded for further proceedings.

[7]  Freedom From Religion Foundation v. Connellsville Area School Dist. (W.D. Pa., complaint filed Sept. 27, 2012).

[8]  Freedom From Religion Foundation v. New Kensington –Arnold School  Dist. (W.D. Pa., complaint filed Sept. 14, 2012).

[9]  As I write this blog post, the federal government is shut down because of a rift between Tea Party Republicans in the U.S. House of Representatives and the rest of Congress.  So, at least for today, Congress may be the most hated group. 

[10]  Newdow v. Roberts, 603 F. 3d 1002 (2010), cert. den., 131 S. Ct. 2441 (2011) challenged the religious practices of the 2008 presidential inaugural ceremony.  

[11]  I was recently involved in a Phoenix, Arizona lawsuit that had been going on for several years.  The plaintiff had accused her teacher of using the classroom to proselytize Christianity.  Ultimately, the plaintiff was intimidated into dropping her lawsuit (which amply supported by the evidence) by the defendants’ attorney who threaten the plaintiff with substantial attorneys fees.

[12]  Ibid., at 747.

[13]  Plessy v. Ferguson, 163 U.S. 537 (1896) was overturned by Brown v. Board of Education, 347 U.S. 483 (1954).

[14] The 19^th Amendment, which prohibits the United States or any State from denying a citizen the right to vote on account of sex, was ratified on August 18, 1920.