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).

The Supreme Court Blesses the Texas Ten Commandments Tombstone

[Chapter 9, post #2]

Part II: Mythical and Deceptive Arguments of the Van Orden Majority[1]

“Presented to Moses on Mount Sinai by the hand of God on two stone tablets, the Ten Commanmdnts stand today after more than 3500 years as God’s law to the human race.  The first three are our obligation to God—the last seven our obligation to our fellow men.  They are a pattern for our human relations.  All the laws of the Country dealing with human relations are based upon the Ten Commandments.”[2]

Youth Guidance Commission

Fraternal Order of Eagles

E.J. Reugemer

Chairman, Judge District Court

St. Cloud, Minnesota

“The Texas Ten Commandments monument profoundly expresses a religious message: “there is a God, and that God has commanded rules for behavior.”

Erin Chimerinsky [3]

This post introduces the Supreme Court's decision in Van Orden v. Perry and sets the stage for discussion  of Myth #1: The Display of the Ten Commandments on Public Property in Washington, D.C. is Common.

In the only Ten Commandments case to be decided by the Supreme Court prior to Van Orden, the Court in 1980 held that a Kentucky statute requiring the posting of a copy of the Ten Commandments on the wall of each public classroom in the state was unconstitutional as a violation of the Establishment Clause.[4]  This decision did not expressly confine its holding to a public elementary or secondary schools, thus leaving the door open for further litigation with respect to public parks, state capitol grounds and courthouses – and along came the consolidated cases of Van Orden v. Perry (large granite monument on state capitol grounds) and McCreary County, Ky. v. ACLU of Ky. (copy of the Ten Commandments hung on a courthouse wall) in 2005.

On Black Monday,[5] the Supreme Court of the United States, in Van Orden, handed down one of its worst reasoned decisions of all time. That is the day the Court gave excuse after excuse why it permitted one of the pre-eminent symbols of the Christian faith to remain on the Texas capitol grounds notwithstanding the First Amendment prohibition against governmental acts “respecting an establishment of religion.”[6]  Van Orden v. Perry did for non-Christians what Plessy v. Ferguson[7] did for blacks in America – reaffirming their second class citizenship.

Van Orden[8] produced seven opinions:

·         Chief Justice Rehnquist announced the judgment of the Court and wrote an opinion in which Justices Scalia, Kennedy and Thomas joined.

·         Justice Scalia wrote a concurring opinion.

·         Justice Thomas wrote a concurring opinion.

·         Justice Breyer wrote an opinion concurring in the judgment.

·         Justice Stevens wrote a dissenting opinion in which Justice Ginsburg joined.

·         Justice O’Connor wrote a dissenting opinion.

·         Justice Souter wrote a dissenting opinion in which Justices Stevens and Ginsburg joined.

Chief Justice Rehnquist’s plurality opinion and the concurring opinions of Justices Scalia, Thomas and Breyer read like Christian Apologetics – argument in support of Christianity (and, here, the display of its iconography on public property).  Perhaps to persons unfamiliar with the facts of the case and Establishment Clause jurisprudence, their arguments may appear logical and persuasive.  However, as one who has extensively studied Judge E.J. Ruegemer, the Fraternal Order of Eagles Ten Commandments program and the many cases involving Ten Commandments monument cases, the arguments of the Van Orden majority are disturbingly trumped up – with sole purpose of justifying the unconstitutional act of displaying the full text of a Christian version of the Ten Commandments on government property – in short, government endorsement of Christianity.

Over the next several weeks, Secular Law will review a dozen deceptive, if not purely erroneous and mythical, arguments made by the Van Orden majority.  At the conclusion of this series, I believe that ample evidence will have been presented that a reasonable, objective person would conclude that:

1.      The Van Orden decision was clearly wrongly decided,

2.      The U.S. Supreme Court should sua sponte overturn its 2005 decision and

3.      Remand the case back to the U.S. Court of Appeals for the Fifth Circuit, which in turn would direct the District Court to issue an injunction ordering the removal of the Eagles-donated Ten Commandments tombstone from the Texas state capitol grounds.

To set the stage for Myth #1: The Display of the Ten Commandments on Public Property in Washington, D.C. is Common, it is important to recall four facts about the Eagles-donate Ten Commandment monument in Austin, Texas.  (See also Chapter 6 – Eagles Monuments are Jesus Tombstones.) 

• First, the Fraternal Order of Eagles had a religious purpose for donating the monuments to cities and states.[9]
• Second, the large granite monuments are permanent displays. 
• Third, permanent monuments on public property are “government speech.”[10]
• And fourth, the Texas monument displays the full English text of a Christian version of the Ten Commandments.

— ♦ — 

To start:

Everything is bigger in Texas!

The six-feet tall, Eagles-donated Ten Commandments Monument on the grounds of the Texas State Capitol (behind the capitol building). Austin, Texas. Photograph by J. Williams. (Aug. 26, 2002) Source: http://en.wikipedia.org/wiki/File:Ten_Commandments_Monument.jpg

This is what JUMPS out at passersby: the Ten Commandments I AM the Lord thy God. Thou shalt have no other gods before me.   Though shalt not make to thyself any graven    Images. Thou shalt not take the Name of the Lord    thy God in vain. Remember the Sabbath day, to keep it holy. Honor thy father and thy mother that the    days may be long upon the land which the    Lord thy God giveth thee. Thou shalt not kill. Thou shalt not commit adultery. Thou shalt not steal. Thou shalt not bear false witness against    thy neighbor. Thou shalt not covet thy neighbor’s house. Thou shalt not covet thy neighbor’s wife, nor    his manservant, nor his maid servant, nor his     cattle nor anything that is thy neighbors.

 The take-a-way from the above photograph is that those who walk by the Texas's Eagles-donated tombstone to Jesus Christ, including Thomas Van Orden in the early 2000s, see one of the pre-eminent symbols of Christianity with the full text of an English version of the Ten Commandments.

In contrast, no one who observes the 11 depictions of the Ten Commandments (presented in future posts) listed by Chief Justice Rehnquist in his plurality opinion in Van Orden will see a partial or full English text of any version of the Ten Commandments.  Instead, they will see:

    3 – Blank tablets

    3 – Tablets with Roman numerals *

    2 – Ten Commandments not depicted

    1 – Tablets with Hebrew text commanding murder, adultery, theft

    1 – Tablets with a Hebrew version of the Ten Commandments

    1 – To be determined (photo of gates of the courtroom, Supreme Court requested)

* There is an ongoing debate whether the Roman numerals I-X (1-10) represent the Ten Commandments, the Bill of Rights (the first ten amendments to the Constitution) or “law” generally.  The issue need not be discussed here as the critical point is that Roman numerals I-X are not remotely equivalent to the full English text of the Ten Commandments.  Needless to say, a blank tablet leaves the tablet’s meaning to one’s imagination. 

Next post: Myth #1: The Display of the Ten Commandments on Public Property in Washington, D.C. is Common.

 __________

Footnotes:

1. This is a continuation of my Sept. 20 post and part of Chapter 9 of my forthcoming book: Supreme Scandal: The Supreme Court Blesses the Ten Commandments.  
2. The first paragraph on the back of a 1950s Fraternal Order of Eagles Ten Commandments poster.  Judge E.J. Reugemer was the driving force behind the Eagles Ten Commandments Program while he was chairman of the organization’s Youth Guidance Commission. 
3. 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 15.  Mr. Chimerinsky argued on behalf of Thomas Van Orden before the Supreme Court.
4. Stone v. Graham, 449 U.S. 39 (1980).
5. June 27, 2005 – the day the Supreme Court hand down its decision in Van Orden v. Perry, 545 U.S. 677 (2005).  In the other case, McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844 (2005), Justice Breyer switched sides – resulting in McCreary County being correctly decided (in the view of this author) under Establishment Clause jurisprudence.
6. Establishment Clause of the First Amendment: “Congress shall make no law respecting an establishment of religion.” Const., amend. 1.
7. Plessy v. Ferguson, 163 U.S. 537 (1896) – upheld the constitutionality of racial segregation even in public accommodations under the doctrine of “separate but equal.  See Wikipedia at http://en.wikipedia.org/wiki/Plessy_v._Ferguson for a summary of the case involving racial segregation in railroads.
8. A transcript of oral arguments in Van Orden v. Perry is available here and the slip opinions are available here.
9. The Fraternal Order of Eagles purpose for erecting over 150 granite Ten Commandment monuments on public property, as well as its distribution of thousands of paper copies of the Ten Commandments and 250,000 copies of On Eagles Wings ( a 96-page comic book distributed to boy scouts), was to spread what the organization believed to be God’s laws of human behavior.
10. Pleasant Grove City v. Summum, 555 U.S. 460 (2009) – the court held that “the City’s decision to accept certain privately donated monuments while rejecting respondent’s is best viewed as a form of government speech.”  Justice Alito’s majority opinion, slip opinion at 18.  Slip Opinion available at http://www.law.cornell.edu/supremecourt/text/07-665.