Supreme Court Abolishes July 4th as Freedoms Day

I should be happy today. It is Americans 'Freedoms Day'. But it is no more.

As a member of the Supreme Court bar, I am horrified by the direction of the high Court I once revered. The Court has lost its legal compass.

The Supreme Court -- with its Dobbs v. Jackson Women's Health Organization (women's reproductive freedom), Kennedy v. Bremerton School Dist. (prayer in public schools, Carson v. Makin (government funding of religion), American Legion v. American Humanist Association (2019) (Christian cross on public property), etc. decisions -- has abolished major American freedoms and taken us back to the "bad old days."

I support expanding the Supreme Court to thirteen justices and appointing four justices that understand the virtue of freedom for all (not just Christians).

Supreme Court Enslaves Women, Terrorizes the U.S.

Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, Neil Gorsuch and Amy Barrett should be charged with domestic terrorism, as well as, slavery in violation of the 13th Amendment. They have sentenced millions of women (in the future) to forced carrying pregnancies to term and for raising unwanted children. In addition to sentencing them to 9 months plus 18 years in jail, their pay checks should be garnished to pay for the unwanted children's upbringing, as well as, the financial losses that the women will suffer for lost education and job opportunities.

The Dobbs v. Jackson Women's Health Organization (No. 19-1392, June 24, 2022) decision is putrid apple pie. Shameful. Impeach Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, Gorsuch and Barret for "b
ad behavior".

Supreme Court Guts First Amendment's Establishment Clause

The six Christian nationalists on the U.S. Supreme Court predictably violated their oaths of office and held today in Carson v. Makin that Maine cannot deny funding religious schools. Denying funding of religious institutions is the cornerstone of the First Amendment's establishment clause (made applicable to the States via the 14th Amendment): "Congress shall make no law respecting an establishment of religion." Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, Neil Gorsuch and Amy Barrett should be impeached as they have clearly exhibited "bad behavior." 

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented -- Justice Sotomayor writing: “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.”

Supreme Court's Covid mandate is disgusting

 Six justices on the Supreme Court of the United States are wacko -- Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Barrett. STUPID. Federal law gives the Dept. of Labor's OSHA (Occupational Safety and Health Administration) the authority to protect workers from “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” With over 800,000 Covid deaths, I would say that SARS-CoV-2 (Covid) is "physically harmful." Wouldn't you? The 6-3 in National Federation of Independent Business v. Dept. of Labor ruling against OSHA's mandate affecting employers with over 100 workers is senseless. And, why does OSHA have the authority to issue such a mandate? Two reasons. First, the federal government has the power under the U.S. Constitution to regulate interstate commerce. Second, Congress delegated its authority to regulate interstate commerce in the relevant area to OSHA. This case, from a legal perspective, should have been a no-brainer. Well, yeah, the no brains won.

No Equal Justice Under Law In The Roberts' Court

There is a stench of Christian privilege at the U.S. Supreme Court. Today, the Court said "no" to women who want to obtain mifepristone, also known as RU-486, via the mail during the Covid-19 pandemic. Mifepristone, when combined with another drug, can induce the equivalent of an early miscarriage.

But there is a catch. The FDA requires mifepristone to be picked up in person by the patient at a hospital, clinic or medical office.

According to Justice Sotomayor: "Of the over 20,000 FDA-approved drugs, mifepristone is the only one that the FDA requires to be picked up in person for patients to take at home."  Food & Drug Administration v. American College of Obstetricians & Gynecologists, (US Sup. Ct., Jan 12, 2021, Sotomayor, dissenting).

The Court's decision, tho unsigned, was by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh Gorsuch and Barrett.  The Chief Justice filed a short concurrence writing in part: "courts owe significant deference to the politically accountable entities with the 'background, competence, and expertise to assess public health.'”  Translate: The Court's Christian supremacists use "deference" as a tool to subjugate women to their fundamentalist Christian morals.

Justice Sotomayor, joined by Justice Kagan, filed a dissenting opinion, saying in part:

Due to particularly severe health risks, vastly limited clinic options, and the 10-week window for obtaining a medication abortion, the FDA’s requirement that women obtain mifepristone in person during the COVID–19 pandemic places an unnecessary and undue burden on their right to abortion.  ...

What rejoinder does the Government have to the possibility that refusing to suspend the FDA’s in-person requirements for mifepristone during the COVID–19 pandemic will cause some women to miss the 10-week window altogether? No cause for concern, the Government assures this Court, because even if the FDA’s in-person requirements cause women to lose the opportunity for a medication abortion, they can still seek out a surgical abortion. What a callous response.

Justice Breyer, dissented, without joining or filing an opinion. 

Bottom line: religion (i.e., fundamentalist Christianity), not justice, controlled the outcome of this case.

I've been to the Supreme Court many times, including filing petitions for certiorari and friend of the court briefs. I am heart broken by a number of Court's recent decisions, including this case. The pillars holding up Equal Justice Under Law on the Court's West Pediment are crumbling.

Supreme Court: Change Your Morning Prayer

America has a serious problem of Christian privilege -- which starts at the Supreme Court with its morning prayer: "God save the United States and this honorable Court."

Under God" in the Pledge, "In God We Trust" as our motto and "So help me God" in oaths are serious violations of the Establishment Clause of the First Amendment. But don't expect these to change until the Court changes its prayer FIRST. 

In my opinion, this is where the American Humanist Association, Freedom From Religion Foundation, ACLU, Americans United for Separation of Church and State, etc. ought to focus their resources. 

Secularists cannot exterminate the Christian privilege of ceremonial deism unless and until the Supreme Court implements the First Amendment principle that government may not prefer one religion over another or religion over nonbelief. McCreary County v. ACLU of Ky., 545 U.S. 844, 860 (2005).

Mr. Chief Justice, how about: "Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to give their attention, for the Court is now sitting.  May this Court have the wisdom to administer equal justice under the law." 

By: Robert V. Ritter, December 11, 2020

It is shocking that the U.S. Supreme Court commands us to murder, steal and commit adultery -- that's the English translation of the Adolph A. Weinman's bas-relief of Moses overlapping tablets on the South Wall Frieze of its courtroom: 

"Thou shall murder" (line 1), "Thou shall steal" (line 2) and "Commit adultery" (line 3). (Translation by Avrahaum Segol; verified at pp. 12-13 of the oral argument transcript of Pleasant Grove City v. Summum, Nov. 12, 2008.) (Photo: Steve Petteway, Collection of the Supreme Court of the United States.)

By: Robert V. Ritter, Founder, Jefferson Madison Center for Religious Liberty

Justice Amy Coney Barret cements Christian Privilege for an Activist Christian Nationalist Supreme Court

My fears of Christian Nationalism and Christian Privilege with the addition Justice Amy Coney Barrett are realized in Roman Catholic Diocese of Brooklyn v. Cuomo -- a Supreme Court decision issued yesterday. In a 5-4 decision (Thomas, Alito, Gorsuch, Kavanaugh and Barrett in the majority), the State of New York is enjoined from enforcing its #Covid-19 restrictions against churches based on a moronic interpretation of the Free Exercise Clause of the First Amendment. 

Under Employment Division v. Smith (1990), "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).' " 

So what did the gang of Christian nationalists do, they (1) failed to defer to state health officials with expertise and (2) falsely parsed the pool of secular comparables (i.e., instead of comparing churches to theaters, etc. where people are in close proximity for extended periods of time, the Court majority compared them to retail stores where people are more spread out and move about -- the former having greater restrictions, the latter less restrictive). 

Essentially, the Supreme Court has weaponized the Free Exercise Clause to promote Christian privilege.

By: Robert V. Ritter, Founder, Jefferson Madison Center for Religious Liberty, November 26, 2020

Supreme Court Trampels on Religious Freedom

The U.S. Supreme Court trampled upon the First Amendment today, all but abolishing religious freedom in America. In American Legion v. American Humanist Association, No. 17–1717, the Court held that the Bladensburg Cross on public property does not violate the Establishment Clause. This  decision reverses a 4th Circuit decision which held that the display of the preeminent symbol of Christianity on public property does violate the First Amendment. The decision is insane and truly shows how politically Christian Nationalist the Supreme Court has become.

As a footnote, the decision echoes one of the Court's worst decisions of all-time in Van Orden v. Perry (2005), particularly Justice Breyer's "let sleeping dogs lie"concurrence in the judgment opinion.

Robert V. Ritter

 (Disclosure Statement: I served as legal coordinator of AHA from 2007 to 2010.)

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Kavanaugh Unqualified for Seat on Supreme Court

The American political psyche is very divided. The multitude of views is the nature of the American politick. That was true at our founding and it is true today.

This being said, Judge Brett Kavanaugh is unqualified for a seat on the Supreme Court for a number of reasons. Foremost is his temperament. His behavior during the Senate Judiciary confirmation hearings was atrocious. His response to Senator Klobuchar's questions about his drinking were not only evasive but extremely disrespectful. I can envision Kavanaugh going ballistic during an oral argument should he be confirmed.

Some argue that millions don’t believe Kavanaugh assaulted Ford. On the other hand, millions of Americans believe Christine Blasey Ford's testimony was credible and that he did sexually assault her while he was drunk. Mark Judge has corroborate that Kavanaugh had a drinking problem while he was at Georgetown Prep. And others at Yale said likewise. Also that he was belligerent. There is also a police report concerning Kavanaugh that he was involved in a bar fight. A person who sits on the High Court should be beyond reproach and Kavanaugh is not that person. Too many question marks to say the least.


There is also serious concern that Kavanaugh may have committed perjury -- including, lying about his drinking problem and definition of sex terms.

And on top of all this, he is extremist in is views, and lacks both impartiality and fidelity to the Constitution. For example, his concurrence in Newdow v. Roberts, 603 F.3d 1002 (DC Cir. 2010)  (a case in which I was co-counsel in challenging the religious practices of the 2009 presidential inaugural ceremony) is indicative of Kavanaugh's support for Christian privilege (at the expense of non-theists and persons of minority religions) contrary to the Establishment Clause of the First Amendment.

As a member of the Supreme Court bar and with these points in mind, I am of the opinion Judge Kavanaugh is eminently unqualified for a seat on the Supreme Court.

Robert V. Ritter

Time for the Supreme Court to End Government Sponsored Prayer

Last Wednesday (Nov. 6) at the Supreme Court, I joined a group from the Secular Coalition of America in support of the plaintiffs in the Town of Greece v. Galloway who opposed Christian prayers before the town’s council meetings. I have since come to realize that that was a false choice – one between Christian prayers and watered down prayers. What about no prayers at all?  Isn’t that what the “No Establishment” Clause requires?  What part of “no” don’t we understand?

The seed of illumination began when I heard Americans United legal director Ayesha Khan tell reporters after oral arguments: 

Participating in one’s local government is a universal right of citizenship. It should not be conditioned on recitation of the Lord’s Prayer or participation in any other prayer that is unique to a particular faith tradition. Town residents attend these meetings not as spectators but as participants. Children's sports teams are invited to receive awards, people come to ask the board to take particular action and they come to seek zoning permits.  Exercising those rights and seeking those important benefits should not be conditioned on bowing one’s head in recognition of Jesus Christ.

It is important to understand that we are not asking the board to discontinue its practice of presenting prayers.  We are asking that citizens not be pressured to participate in those prayers and that the prayers be nondenominational and [in audible].  Our national motto is “In God We Trust,” not “In Christ We Trust.”  Our Pledge of Allegiance refers to “one nation under God,” not “one nation under Jesus,” “under Allah” or “under Buddha.”

We brought this lawsuit because the Town of Greece has chosen to thumb its nose at this long standing historical and constitutional provision that has served us so well.  Under the town’s view, residents who come to participate in these meetings to be asked to join in a prayer that promises eternal hell fire to anyone who does not accept Jesus Christ as their savior.  That can’t possibly be constitutional.  We hope that the Supreme Court will agree that civic participation should not be conditioned on compromising one’s religious beliefs.

Something was missing from Ms. Khan’s remarks, so I asked her: “What do you say to Atheists that don’t believe in god?  They shouldn’t have to hear even nondenominational prayers.” 

Ms. Khan dodged the latter question by responding: “Yes, as Professor Laycock [who argued the case on behalf of the plaintiffs] said this tradition that the country has followed does in fact not recognize the increasing diversity of this country.  We do believe under the proposal we have made that Atheists would be allowed to come forward and present a prayer, as would polytheists or anybody else who comes from a more diverse tradition than the monotheistic one that the Court opened with today.”

While the Americans United’s “sausage” proposal may be the best we could hope for given the religiosity of the Supreme Court (six Roman Catholic and three Jewish justices), it doesn’t cure the problem of government sponsored religion.  It’s time for the Supreme Court to say that prayer – as a part of governmental meetings – violates the No Establishment Clause of the First Amendment.

And so it comes to past that after years of supporting Americans United, I painfully conclude that the organization is a front for mainstream Protestantism. This really should not be surprising.  Originally, it was founded in 1947 as Protestants and Other Americans United for Separation of Church and State to oppose Catholic influence on government.  The organization has since dropped “Protestants and Other” from its name and added Christian fundamentalism to its opposition list.  It is also notable that its executive director is an ordained Protestant minister and has two Christian ministers and two Jewish rabbis on its board of trustees.

The unmistakable fact remains that Americans United supports government sponsored religion, including prayer at government meetings, the motto of “In God We Trust”, the insertion of “under God” in the Pledge of Allegiance and the Supreme Court’s opening sessions with a prayer.  Americans United’s nondenominational half-measure is analogous to granting gays the right to enter into civil unions instead of marriage.  Americans United’s position is undignified.  It’s wrong.

It is important to make these final comments.  First, while some prayers are more sectarian than others, all prayers are inherently sectarian.  Second, removing the wrongful practice of government sponsored religion from the public square is not being hostile to religion.  Rather, it is being faithful to the Constitution which prohibits government from preferring one religion over another, or religion over nonreligion or, in all fairness, nonreligion over religion.  Third, the absence of religion is not the same as being pro-Atheist.  Rather, it leaves to individuals and private institutions they may associate with the practice of religion.  And fourth, the Constitution created a “limited form of government,” granting Congress, the president and the judiciary no religious powers or duties.

If the Supreme Court is faithful to the Constitution, it will first cease opening its own sessions with the prayer “God save the United States and this honorable Court” and then tell the Town of Greece “NO MORE PRAYERS.”

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.