Myth #7: Texas Had a Secular Purpose for Accepting the Eagles-donated Monument

[Chapter 9, post #9]

“In the present case, the religious purpose was evident on the part of the donating organization. When the Fraternal Order of Eagles, the group that gave the monument to the State of Texas, donated identical monuments to other jurisdictions, it was seeking to impart a religious message.”

Justice Souter [1]

This post will be short; otherwise it would be a restatement of Myth #6’s discussion of Texas’s so-called secular purpose[2] for accepting and displaying a Ten Commandments monument donated by the Fraternal Order of Eagles.
 
With blinders on, the U.S. District Court for the Western District of Texas, the U.S. Court of Appeals for the Fifth Circuit and the Supreme Court of the United States accepted without examining the Texas legislature’s stated purpose as being a valid secular purpose for purposes of the Establishment Clause.  Not even a peek under the covers!  How could there be such a break down in the judicial function?  How could the Court deny Thomas Van Orden EQUAL JUSTICE UNDER LAW?

The only answer that I have been able to come up with after studying the Eagles’ Ten Commandments program and the Supreme Court decision in Van Orden v. Perry for more than five years is that the plurality of Chief Justice Rehnquist and Justices Scalia, Kennedy and Thomas are part of the Christian Right movement of evangelicals actively seeking Christian dominion over the people of the United States.[3]  (Justice Breyer, who concurred in the judgment of Van Orden, was apparently persuaded by the winds of pragmatism.) 

Based on (a) the history of the Fraternal Order of Eagles Ten Commandments program, (b) my discussion of “secular purpose” in Myth #6: The Lemon Test Is Not “Useful,” (c) the Texas Ten Commandments monument being facially religious, (c) Texas, being in the “Bible Belt,” has history of endorsing religion and (e) the many deceptive arguments of the Chief Justice in Van Orden and the opinions of the Chief Justice and Justices Scalia, Kennedy and Thomas in other cases, this author concludes that the State of Texas did not have a valid secular purpose for accepting and displaying the Eagles-donated Ten Commandments tombstone.

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[1]  Van Orden v. Perry (Justice Souter dissenting, joined by Justices Stevens and Ginsburg), at 738.  See Adland v. Russ, 307 F.3d 471, 475 (C.A.6 2002) (quoting the Eagles' statement in a letter written to Kentucky when a monument was donated to that Commonwealth: “ ‘Most of today's younger generation either have not seen the Ten Commandments or have not been taught them. In our opinion the youth of today is in dire need of learning the simple laws of God ... ’ ”). Accordingly, it was not just the terms of the moral code, but the proclamation that the terms of the code were enjoined by God, that the Eagles put forward in the monuments they donated.

[2]  To commend and congratulate the Fraternal Order of Eagles “for its efforts in combating juvenile delinquency throughout our nation.”

[3]  This assessment is also based on other Supreme Court cases involving “under God” in the Pledge of Allegiance, religious symbols on public property, prayer and teaching creationism in public schools, funding private religious schools via vouchers, abortion and gay rights.

Myth #6: The Lemon Test Is Not “Useful”

[Chapter 9, post #8]

“Whatever may be the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence, we think it not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds.” (Emphasis added.)[1]

Chief Justice Rehnquist

Everyone knows that lemons are very bitter.  Thus, it is no surprise that when a Lemon test analysis didn’t support Chief Justice Rehnquist’s view in Van Orden v. Perry, he simply declared that it wasn’t “useful.”

In Lemon v. Kurtzman,[2] the Supreme Court set forth a three-prong test to analyze governmental acts under the Establishment Clause.  If a governmental act failed any one of the prongs, the Court would find the act unconstitutional under the Establishment Clause.  To pass constitutional muster under the Lemon test, a governmental act must:

1.      Have a secular purpose.

2.      Not have the primary effect of either advancing or inhibiting religion.

3.      Not result in an “excessive government entanglement” with religion.

 

I'll run through a Lemon test analysis Van Orden v. Perry just for fun:

First, the Texas legislature’s stated secular purpose for erecting the Ten Commandments monument was commend and congratulate the Fraternal Order of Eagles “for its efforts in combating juvenile delinquency throughout our nation.”[3]  Obstensibly, this is a secular purpose.  However, “[w]hile the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.”[4]  Let’s take a closer look.

 The truth is that the stated legislative purpose in Van Orden was a sham intended to circumvent the Establishment Clause.  The idea of putting the Ten Commandments monument came not from the Texas legislature or the governor’s office, but was of a nation campaign by the Eagles to saturate the United States with the “laws of God.”  

While Texas’s purpose is obvious to me, for those who may have some doubt let’s take a step back in time to the 1940s and the Fable of Judge E.J. Reugemer and the Wayward Juvenile.  As the story goes, in 1956 Judge Reugemer – a devout Catholic and chairman of the Fraternal Order of Eagles Youth Guidance Commission – gave the youth the choice of sentences of either reform school or learn the Ten Commandments.  Judge Ruegemer went on to establish the Eagles Ten Commandments programs – the distribution of tens of thousands paper copies of Ten Commandments and, starting in 1955, donating more than 150 granite monuments engraved with the full text of the Ten Commandments to cities and states, including Austin, Texas.[5]

The Court in Stone v. Graham said: “The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.”[6] The purpose of the Texas legislature for displaying the Eagles-donated Ten Commandments monument, like the purpose of the Kentucky legislature for mandating the display of the Ten Commandments on walls of public schools in Stone, was “to display the full text of one version of the Ten Commandments.”[7]

Second, the prominent display of the six-foot tall Ten Commandments monument between the Capitol and the state Supreme Court clearly has the effect of advancing Christianity to the detriment of other religions[8] and nonbelief – thereby violating the second prong of the Lemon test.

And third, in my opinion, the Texas legislature’s continuing to permit the monument to be displayed on its capitol grounds violates the “excessive government entanglement” prong of Lemon.  However, the courts generally limit this prong to situations involving a state’s entanglement with a religious institution.[9]  Consequently, for the sake of argument, I’ll give this prong a pass.

Thus, what Chief Justice Rehnquist’s plurality opinion in Van Orden informs us of is that justices, when they don’t like a rule established in a previous Supreme Court case,[10] either they ignore the rule (such as by saying it doesn’t apply in their case) or concoct a phony secular purpose (AND deny that the offending act has a religious purpose or primary affect of advancing religion).  Chief Justice Rehnquist has done both.

Interestingly, the dissenters also ignored analyzing Van Orden under the Lemon test.  That failure is not as devious as it may sound because they analyzed Van Orden under the “neutrality” principle: "First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”[11]  While not identical, the Lemon and neutrality tests generally produce the same or similar result.  I would further note that the neutrality test avoids the manipulation of the “reasonable observer” that Lemon has been criticized for.

Accordingly, this author holds that Chief Justice Rehnquist’s claim that the Lemon test isn’t useful is a myth – for the Chief Justice eschewed the test because it would have produced a result that he disagreed with.

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[1]  Van Orden v. Perry, 545 U.S. 677, 686 (2005).

[2]  Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). 
[3]  The District Court quoting from a resolution “adopted by the Texas Senate on February 14, 1961, by the Texas House on February 22, 1961 and signed by the governor on March 10, 1961.”  Van Orden v. Perry, 2002 WL 32737462, *4 (2002).

[4]  Edwards v. Aguillard, 482 U.S. 578, 586-587 (1987); Wallace v. Jaffree, 472 U.S. 38, 64 (1985) (Powell, J., concurring); id., at 75, (O'Connor, J., concurring in judgment); Stone v. Graham, 449 U.S.39, 41 (1980); Abington School Dist. v. Schempp, 374 U.S. 203, 223-224 (1963).  See also McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 864 (2005) (Lemon requires the secular purpose “to be genuine, not a sham, and not merely secondary to a religious objective”).

[5]  Other Eagles-donated Ten Commandments monuments on public property in Texas are located in Corpus Christi (1960), Dallas and Galveston (1957).

[6]  Stone v. Graham, 449 U.S. 39, 41 (1980).

[7]  Van Orden , at  707 (Stevens, J., dissenting). 

[8]  The Eagles-donated monument is sectarian.  This point will be discussed more fully in Myth #10: The Eagles’ Tombstones are Nonsectarian.

[9]  See, for example, Conor Reilly, Preliminary Injunction, Excessive Entanglement, and Prior Restraints: Should Courts Treat Potential Pretrial Religious Infringement the Same as Potential Pretrial Speech Infringement?, Akron J. of Const. Law and Policy, 2012, 3:1, at 4-7. Available at http://www.akronconlawjournal.com/articles/1-Reilly_Macro.pdf.

[10]  The conservatives on the Supreme Court have wanted to overturn Lemon but thus far do not have the votes to do so.

[11]  McCreary County v. ACLU, 545 U.S. 844, 860 (2005).  Note: the four dissenters in Van Orden – Justices Stevens, O’Connor, Ginsburg and Souter – were in the majority in McCreary.

Myth #3: The Ten Commandments Are Part of Texas’s Political and Legal History

[Chapter 9, post #5]

Governor Rick Perry was the named defendant in Van Orden v. Perry.[1]  Throughout his governorship, he has acted as if he is Texas’s religious czar.  On Halloween, he dresses up as Moses and climbs Mount Sinai.  Of course, neither is true but that doesn't prevent the delusional Perry from doing his best to turn Texas into a Christian State.  Such is the back drop of Van Orden v. Perry.

Seventeen monuments on 22 acres adorn the Texas state capitol commemorating the “people, ideals, and events that compose Texan identity.”[2]  The monuments are:  

1.   Confederate Soldiers

2.   Disabled Veterans

3.   Heroes of the Alamo

4.   Hood’s Brigade

5.   Korean War Veterans

6.   Pearl Harbor Veterans

7.   Soldiers of World War I

8.   Spanish-American War

9.   Ten Commandments [3]

10.     Terry’s Texas Rangers

11.     Texas Cowboy

12.     Texas National Guard

13.     Texas Peace Officers

14.     Texas Pioneer Woman

15.     Tribute to Texas School Children

16.     The Boy Scouts’ Statue of Liberty Replica

17.     Volunteer Fireman

Number “9” sticks out not only because I’ve highlighted it, but more importantly because its the only religious monument in the group.  To no one’s surprise, the Ten Commandments monument also happens to be an expression of the majority religion in Texas -- Christianity.

And so it came to pass that in 1961 the Texas legislature adopted a resolution commending and congratulating the Fraternal Order of Eagles “for its efforts and contributions in combating juvenile delinquency throughout our nation …”[4] and giving its permission for the Eagles to erect a Ten Commandments monument on the grounds of the state capitol.  Seeking to circumvent the Establishment Clause, the resolution did not mention the fact that the Eagles were proselytizing youths (and the general public) through the Ten Commandment monuments and paper copies that the organization distributed throughout the United States.

The resolution itself did not provide enough cover.  The Chief Justice needed more.  So he concocted the argument that the Ten Commandments monument represented the “State’s political and legal history.”[5]  Like so many of his gratuitous arguments, Chief Justice Rehnquist never explained the relevance of Ten Commandments Texas’s political and legal history.

For those wish to turn the United States into a Christian nation, the Chief Justice said it best in quoting Justice Douglas in Zorach v. Clauson: “When the state encourages religious instruction . . .  it follows the best of our traditions.”[6]  Providing religious instruction is precisely what Judge E.J. Reugemer had in mind too when he started the Eagles Ten Commandments Program, and that’s what the Texas legislature had in mind when it passed a resolution permitting Eagles-donated monument to be erected on the state capitol grounds. 

No wonder, then, that the real history of Texas is one about serial Establishment Clause violations.  In addition to Van Orden,[7] Texas is also noted for two other religion clause cases to be decided by the Supreme Court:

• Murray v. Curlett (prayer in public schools)[8]
• Santa Fe Independent School Dist. v. Doe (prayer in public schools)[9]

These are in addition to a number of church-state cases at lower court levels. 

Accordingly, the Court not having articulated any role the Ten Commandments played in Texas’s political and legal history, it is hereby declared by a preponderance of the evidence that the only role the Ten Commandments has played Texas’s political and legal history has been a divisive one.

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[1]  Perry was sued in his official capacity as governor and chairman of the State Preservation Board.

[2] Tex. H. Con. Res. 38, 77th Leg., Reg. Sess. (2001).

[3]  More accurately: “Fraternal Order of Eagles Ten Commandments.”

[4]  Senate Concurrent Resolution Number Sixteen (adopted 1961) quoted by the District Court, Van Orden v. Perry, 2002 WL 32737462 (W.D. Tex 2002) at *4.

[5]  545 U.S. 677, at 691-692.

[6]  Id. at 684 quoting Zorach v. Clauson, 343 U.S. 306, 313-314 (1952). 

[7]  Van Orden v. Perry, 545 U.S. 677 (2005) (held that the display of a Ten Commandments monument on the Texas state capitol grounds did not violate the Establishment Clause).

[8]  Consolidated with Abington School District v. Schempp, 374 U.S. 203 (1963) (the latter holding that school-sponsored Bible reading in public schools violated the Establishment Clause).

[9]  Santa Fe Independent School Dist. v Doe, 530 U.S. 290 (2000) (held Santa Fe I.S.D.’s a policy permitting student-led, student-initiated prayer at high school football games violates the Establishment Clause).

Myth #2: The Eagles are Not a Religious Organization

[Chapter 9, post #4]


The Fraternal Order of Eagles is not a religion or a church – just members getting together, having fun and, from time to time, “people helping people.”[1]

However the myth that The Eagles are Not a Religious Organization raises the question of: What does an organization have to do be a “particular something?”  Let’s start off with Chief Justice Rehnquist’s description of the Eagles in his Van Orden v. Perry.  He called them “a national social, civic, and patriotic organization.”[2]

First and foremost, as its name implies, the Fraternal Order of Eagles is an adult fraternity or social club.  Eagles members are into NASCAR, bingo and beer drinking – the usual.  Nothing wrong with those activities.  And I won’t quibble with the organization also being described as “civic,” inasmuch as, it has donated millions of dollars to charities.  And it is a flag waving “patriotic” organization.  OK, too.  Thus, Rehnquist’s statement is literally true – but only as far as it goes.

The Eagles are more.  To be fairly described as something, an organization merely has to do that something with some regularity or minimal frequency.

And here is what the Chief Justice intentionally left out – the Eagles are also a religious organization.  His convenient amnesia was necessary because a full characterization of the Eagles would have seriously undermined (1) the secular purpose he attributed to the state of Texas for accepting the Eagles Ten Commandments monument and (2) his holding that Texas’s display of the monument on its capitol grounds did not violate the Establishment Clause of the First Amendment.  The omission is serious and, I believe, indicative of a series of deceptions in the Chief Justice’s opinion in Van Orden.  

I believe that the following endeavors that the Eagles have engaged in constitute the necessary regularity or minimal frequency necessary for it to be called religious:

1.  Require its members believe in a “supreme being” as a condition of membership.

2.  Distributed nearly10,000 Ten Commandment plaques in 1954 and additional thousands of other copies over the years to schools, courthouses and other public buildings for the purpose of promoting God’s laws.

3.  Erected the first Eagles-donated Ten Commandments monument in a memorial park in Ambridge, Pennsylvania in 1955; the first Eagles-donated Ten Commandments monument placed on the grounds of a state capital, Denver, also in 1955.  Between 1955 and the 1980s, the Eagles donated more than 150 Ten Commandment granite monoliths to state and local governments in 34 states.

4.  Have (or did have) a position of chaplain and have religious activities such as prayer at their new member initiation ceremonies.

5.  Distributed 250,000 copies of On Eagles Wings to the Boy Scouts.  The comic book is about a Catholic priest who introduces boy (juvenile offender) to the Ten Commandments on a fishing. (1958)

6.  Sponsor an annual God, Flag and Country speech completion for kids 10-15 years old.

7.  Filed an amicus brief in Elk Grove United School District v. Newdow in support of the “under God” in the Pledge of Allegiance.

8.  Filed an amicus brief in Van Orden v. Perry arguing that the Ten Commandments monument does not violate the Establishment Clause.

9.  Re-dedicated a Ten Commandments monument at its international headquarters in Grove City, Ohio in 2005.

These religious activities by the Eagles taken collectively over a period of time earn them the religious merit badge.  More importantly, by ignoring this core aspect of the Eagles organization, the majority in Van Orden was able to surreptitiously mask both the Eagles motive for donating the Decalog and Texas’s motive for accepting it -- to promote the Christian values set forth on the Texas Ten Commandments monument. 

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[1]  See the F.O.E.’s news webpage “People Helping People” at http://www.foe.com/e-news/people-helping-people.aspx.

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