Myth #9: The Eagles Tombstones are Passive

[Chapter 9, post #11]

“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.”[1] (Emphasis added.)

“Texas’ placement of the Commandments monument on its capitol grounds is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day.”[2] (Emphasis added.)

Chief Justice Rehnquist

This deception of the Chief Justice is all about banding.  Brand the Eagles-donated Ten Commandments with an innocuous term like “passive,” repeat the term a few times and hopefully dissidents will be lulled into believing that the monument is a victim rather than an aggressor. 

If by “passive” Chief Justice Rehnquist meant that the granite rock doesn’t move, speak or light up, he is correct.  But the inference that the monument does “no evil” belies the motive and harm of the Eagles’ tombstone to Jesus Christ.

Justice Souter was not fooled by the Chief Justice: “Placing a monument on the ground is not more ‘passive’ than hanging a sheet of paper on a wall when both contain the same text to be read by anyone who looks at it.”[3]

 

Nor was Justice Stevens fooled: “The monolith displayed on Texas Capitol grounds cannot be discounted as a passive acknowledgment of religion . . .   This Nation’s resolute commitment to neutrality with respect to religion is flatly inconsistent with the plurality’s wholehearted validation of an official state endorsement of the message that there is one, and only one, God.”[4]
 
The Eagles’ tombstone fundamentally commands the people to Texas to obey “God’s laws” and marks the territory upon which the monument sits as “Christian.”[5]  To allow Texas monolith and the remaining one hundred plus Eagles Ten Commandments monuments to remain on public property is to destroy the secular foundation upon which the United States is built and to relegate persons of minority faiths and those of no faith into second class citizenship.

Accordingly, the author finds that the commanding nature of the Eagles-donated Ten Commandments tombstone to be aggressive (if not coercive) and, therefore, not passive.

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

[2]  Id., at 691.  “Stone” is referring to Stone v. Graham, 449 U.S. 39 (1980) wherein the Court held a Kentucky’s statute requiring the posting of a copy of the Ten Commandments on the wall of each public classroom violated the Establishment Clause.

[3]  Id, at 747 (Souter, J., dissenting with whom Stevens, J., and Ginsburg, J., joined).  The “sheet of paper” Justice Souter is referring to are the copies of the Ten Commandments posted on the walls of Kentucky public schools.  See fn. 118.

[4]  Id, at 712 (Stevens, J., dissenting with whom Ginsburg, J.,  joined).

[5]  The territory here being the Texas State Capitol grounds, is a metaphor for the entire State of Texas.

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.

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[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:

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.