Add two secularists to the Court if you believe in diversity

It is interesting that the White House seeks diversity in its judicial nominations. I assume that Judge Ketanji Jackson will make a fine justice. But I would point that when she takes a seat on Supreme Court after Justice Breyer's retirement, blacks will hold 22% of the seats while the U.S. black population is 12% (2020). That doesn't bother me much either. (Making up for lost time.) Rather, I am concerned 100% of the justices self-identify with a religion yet 23-26% of Americans self-identify as "nones". If America truly believes in diversity, it is time to put two non-religiously affiliated justices on the Supreme Court and end Christian privilege. While I'm at it, there are two justices on the Court who identify themselves as Jewish (22%), while Jews comprise 1.9% of the U.S. population. That is not overly concerning either, as many Jews are secular. Ah, but Justice Breyer (Jewish) blew it in 2005 when he was the deciding vote in Van Orden v. Perry which permitted a Fraternal Order of Eagles Ten Commandments monument to remain the grounds of the Texas State Capitol. I don't forgive him for that awful vote.

Justice Breyer flip-flops on time makiing a wrong right

Justice Gorsuch, writing for the majority in McGirt v. Oklahoma, said today: "Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right." 

I agree with both the Court's decision in McGirt and Justice Gorsuch's statement. Fifteen years ago, Justice Breyer, who signed on to Justice Gorsuch's opinion, had a different view in Van Orden v. Perry (2005). Justice Breyer concurred in the judgement in Van Orden, joining four Christian nationalist justices in holding that a 1961 Fraternal Order of Eagles Ten Commandments monument on the grounds of the Texas State Capitol did not violate the Establishment Clause because it had been on the Capitol grounds for 44 years. 

In other words, in Van Orden, Justice Breyer opined that a wrong (i.e., a religious monument on public property) should be allowed to stay (i.e., go uncorrected) because the passage of time is an alchemy for making a wrong right (or, simply, let sleeping dogs lie). Hypocrisy at its finest -- in the Supreme Court of the United States. 

Bottom line: the Van Orden v. Perry decision is a blatant example of Christian privilege and needs to be reversed. It has resulted in 120 Eagles Ten Commandments monuments remaining on public property in violation of the First Amendment. 

By: Robert V. Ritter, Founder, Jefferson Madison Center for Religious Liberty, July 9, 2020

Myth #10: The Eagles’s Tombstones are Nonsectarian

[Chapter 9, post #12]

“The Eagles’ consultation with a committee composed of members of several faiths in order to find a nonsectarian text underscores the group’s ethics-based motives.”[1]

Justice Stephen Breyer

The question raised by Myth #10 is whether the Eagles-donated Ten Commandments monument on the Texas State Capitol grounds is “sectarian.”  A sectarian Ten Commandments monument would be one whose text of the Ten Commandments is: “narrowly confined or devoted to a particular sect.”[2]  This issue most frequently arises before the courts in legislative prayer cases – that is, challenges to the practice of opening legislatures and local boards with a prayer to solemnize the meeting.[3]

Justice Breyer took a bite of the Eagles’ poisonous apple and provided the pivotal fifth vote in Van Orden v. Perry. One of Justice Breyer’s rationales for finding no Establishment Clause violation was that a committee of clergy had developed nonsectarian version of the Ten Commandments.  Some justices are of the view that under our Constitution government is permitted to advance religion as long as no single religion is preferred.[4]  I suppose that Justice Breyer was counting Judaism, Christianity and Islam as diverse religions eventho they are derivative of the religion of Abraham.

I discussed the “committee” more fully in the chapter Ruegemer Soars On Eagles Wings.  The essence is this – Judge E.J. Ruegemer established a local[5] committee of Jewish, Catholic and Protestant clergy to draft a nondenominational version of the Ten Commandments.  He believed that such universality would give him cover for the conspiracy he was about to undertake – collusion with state and local governments to violate the civil liberties of Americans – getting permission from governmental entities to erect tombstones to Jesus Christ on public property and proselytize “God’s law.”

It is not surprising that the version of the Ten Commandments that Ruegemer’s committee came up with most closely resembles the Catholic version in that the numbering of the first three commandments being man’s obligations to God[6] and the “covet” commandments are split in two as the ninth and tenth commandments.  Judge Ruegemer was a devout Catholic.

To many, it does not matter which version of the Ten Commandments is in the public square – as long as “God’s law” law is there for everyone to see.[7]  

To others, the version matters.  Often, parents do not want their children being indoctrinated in a religion different from their own – even a different Christian denomination.  This may seem exaggerated to some.  It is not.  In May and July of 1844, for example, Philadelphia experienced the Bible Riots following nativist groups spreading a rumor that Catholics were trying to remove the Bible from public schools. Numerous deaths and injuries resulted, as well as, the burning of several Catholic churches.[8]  Again, the version matters a lot to some people.

And to others, the Eagles-donated Ten Commandments monuments placed on courthouse lawns, public parks and public schools represent a violation of the principle of separation of church and state embodied in the First Amendment and should be removed.[9]

Justice Breyer suggests that the Texas monument is nonsectarian.  Clearly, Justice Breyer either ignored reality or didn’t do his homework in this case.  Hardly could the Ruegemer committee take multiple versions of the Ten Commandments, mix them all together and produce a universal version.  Instead, what the committee produced was an “Eagles version” of the Ten Commandments.[10]  It turned out not to be so universal after all, inasmuch as, over the two decades of the program, the aeries erected multiple versions of the Ten Commandments on courthouse lawns, public parks and school yards.[11]

To summarize the salient facts:

1.      In 1940, the Supreme Court held that the Free Exercise Clause of the First Amendment applies to the states.[12]  Then, seven years later, the Court held that the Establishment Clause applied to the states. [13]

2.      Aware of this, Judge Ruegemer was concerned that selecting either the Jewish, Catholic or Protestant version of the Ten Commandments would be construed as “sectarian” and violate the Establishment Clause.  He needed a scheme to circumvent the First Amendment that had recently been made applicable to the states, including his state of Minnesota. 

3.      Judge Ruegemer established a St. Cloud, Minnesota committee of Catholic, Protestant and Jewish clergy to develop a universal version of the Ten Commandments for the Eagles Ten Commandments program.  There were no persons on the committee from non-Jewish minority faiths or persons without religious belief. 

4.      Judge Ruegemer was a devout Catholic.

5.      There are three major versions of the Ten Commandments, differing in both numbering and wording.[14]

6.      The Jewish, Christian and Protestant faiths number the Ten Commandments differently.  For example, the version adopted by the Ruegemer Committee[15] follows most closely the Catholic numbering system wherein (a) the religious commandments comprise the first three commandments, (b) the secular commandment “Honor thy father and thy mother” is the fourth commandment and (c) the two “covet” commandments are separated as commandments nine and ten.[16]

 

7.      Early Eagles-donated Ten Commandment monuments did not include “Thou shalt not make to thyself any graven images,” thus making those monuments more closely identifiable with the Catholic version.[17]

8.      Some early Eagles-donated monuments reflect the Catholic numbering.[18]

 

9.      The numbering and lack of the “graven images commandment on early Eagles-donated Ten Commandments monuments raised serious concerns about their sectarian nature.  Subsequently monuments generally dropped the numbering and included the “graven images” commandment in order to be more Protestant friendly, including the 1961 Ten Commandments monument located on the Texas State Capitol grounds.[19]  

10.  As mentioned previously, the wording of the Ten Commandments varies among religions.  For example, in the Jewish version of the sixth commandment God commands: “You shall not murder”; whereas, the King James version, God commands: “Thou shalt not kill.”  Many people gloss over this distinction as being trivial.  However, it is important to some people as an identifier of which version of the Ten Commandments is being displayed.  All of the Eagles-donated Ten Commandments monuments that I am aware of use “kill,” suggesting a Catholic-Protestant preference.

Justice Stevens summed it up this way: “Moreover, despite the Eagles’ best efforts to choose a benign nondenominational text, the Ten Commandments display projects not just a religious, but an inherently sectarian, message.”[20]

---

[1]  Van Orden v. Perry, 545 U.S. 677, 701 (2005) (Breyer, concurring in the judgment).

[2]  Dictionary.com, adjective, definition 2.  Available at http://dictionary.reference.com/browse/sectarian.

[3]  The Supreme Court held in Marsh v. Chambers, 463 U.S. 783 (1983), held that government funding for chaplains was constitutional because of the “unique history” of the United States.  [Note: the Court had previously held in Abington School District v. Schempp, 374 U.S. 203 (1963) that school-sponsored Bible reading in public schools to be unconstitutional.]

[4]  The “nonsectarian” rationale flies in the face of McCreary County v. ACLU of Ky., 545 U.S. 844, 860 (2005), decided the same day as Van Orden, which held that “First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”

[5]  St. Cloud, Minnesota.

[6]   The second commandment in the Protestant version is: “Thou shalt not make to thyself any graven images” – is not part of the Catholic version.  As a concession to Protestants, the committee appended it to the first commandment.  The Protestant version, the “covet” commandment s are combined.  It should also be noted that the Hebrew version uses the word “murder” instead of “kill.” 

[7]  As an Atheist, the Biblical story of God giving Moses tablets of the Ten Commandments on Mount Sinai is a myth and, therefore, the various versions are of no significance to me.  The critical point is that government is prohibited by the First and Fourteenth Amendments from displaying the Ten Commandments in the public square.

[8]  See Philadelphia Nativist Riots at http://en.wikipedia.org/wiki/Philadelphia_Nativist_Riots.  “During the 1840s, students in Philadelphia schools began the day with reading the Protestant version of the Bible.  On November 10, 1842, Philadelphia's Roman Catholic Bishop, Francis Kenrick, wrote a letter to the Board of Controllers of public schools, asking that Catholic children be allowed to read the Douai version of the Bible, used by Roman Catholics. He also asked that they be excused from other religious teaching while at school.  As a result, the Board of Controllers ordered that no child should be forced to participate in religious activities and stated that children were allowed whichever version of the Bible their parents wished.”  “After the riots, Bishop Kenrick ended his efforts to influence the public education system and began encouraging the creation of Catholic schools, with 17 being founded by 1860.”

[9]  To Separatists, the Eagles-donated Ten Commandments monuments are inherently religious and, therefore, their presence on public lands violates both the Supreme Court’s Lemon and neutrality tests.

[10]  I assume that the 1951 Brown and Bigelow 20x26 inch design incorporated the committee’s version of the Ten Commandments.  In that year, the Minnesota state aerie distributed “more than 7,000 smaller replicas of the framed Ten Commandments.”  Hoffman, The Real History of the Ten Commandments Project.  Hoffman calls the Eagles version “a universally acceptable translation of the Ten Commandments.”

[11]  Eagles historian and member Sue A Hoffman that “some criticism surfaced because of the different versions of the Ten Commandments and their numbering.  Changes were made after the first series of distributions regarding the numbering and wording of the Ten Commandments based on the Interdenominational Public School Format of 1958.  Some aeries still chose to keep the numbering system even after the change was offered.”  The Real History of the Ten Commandments Project, of the Fraternal Order of Eagles (2005), available at http://www.religioustolerance.org/hoffman01.htm. 

[12]  Cantwell v. Connecticut, 310 U.S. 296 (1940).

[13]  Everson v. Board of Education, 330 U.S. 1 (1947).

[14]  Jewish, Catholic and Protestant.  Altho Islam is an Abrahamic religion, there is no formal Islamic version of the Ten Commandments.

[15]  This conclusion assumes that the text adopted by the committee is reflected in the design by the artists of Brown and Bigelow who prepared the original decorative 20x26 inch version of the Ten Commandments.  See Sue A. Hoffman, The Real History of the Ten Commandments Project of the Fraternal Order of Eagles (2005) available at http://www.religioustolerance.org/hoffman01.htm.  [Note: Ms. Hoffman is a member of the F.O.E. She has identified over 150 Eagles-donated monuments in 34 states while researching for a book on the Eagles Ten Commandments Program.]

[16]  See photograph of an early 1950s Eagles Ten Commandments poster at http://wp.patheos.com.s3.amazonaws.com/blogs/poptheology/files/2012/10/10-C-Front.jpg.  Also note the two tablets at the top with Roman numerals I-III on the left tablet and IV-X on the right tablet are consistent with the Catholic faith.  This confirms the Catholic preference and sectarian nature of the Eagles Ten Commandments program.  In the Jewish and Protestant faiths, the first four commandments are religious and the last six are secular.

[17]  For example, the Denver, Colorado (1955), Helena, Montana (1956), Boone County, Indiana (1957) and Connellsville, Pennsylvania (1957) do not include the “graven images” commandment.

[18]  For example, Denver, Colorado (1955), Helena, Montana (1956), International Peace Garden (1956) (on the boarder of North Dakota and Canada), Boone County, Indiana (1957), Connellsville, Pennsylvania (1957) (image available at http://bloximages.newyork1.vip.townnews.com/heraldstandard.com/content/tncms/assets/v3/editorial/2/33/233b509d-253a-5812-9fe3-661bf02923b8/514ce5cf0c3af.image.jpg., Gastonia, North Carolina (1957) and Xenia (Greene County), Ohio (1957) (image available at http://www.flickr.com/photos/rubenrodz/1488741490/sizes/o/).

[19]  A photograph of the Eagles-donated Austin, Texas Ten Commandments monument is available at:  http://en.wikipedia.org/wiki/File:Ten_Commandments_Monument.jpg.

[20]  Van Orden (Stevens, J., dissenting), at 717.

Myth #8: The Texas State Capitol Grounds is Like a Museum

[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.

2.      State capitol grounds are sui generis.[5]  They are not a museum, or equivalent to one.

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.”

[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.

[7]  Pleasant Grove City v. Summum, 555 U.S. 460 (2009).

[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: