Myth #11: Removal of the Tombstone to Jesus Christ Would Constitute Hostility Towards Religion

[Chapter 9, post #13]

 “[W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.”[1]

Chief Justice William Rehnquist

Perhaps the most incredulous of all Christian apologies[2] made by Chief Justice Rehnquist in his Van Orden plurality opinion is that removal of the Eagles-donated Ten Commandments tombstone would evince a hostility towards (the Christian) religion.

The quote of the Chief Justice[3] at the beginning is disingenuous.  It suggests that it is constitutionally permissible for the state of Texas to conspire with the Fraternal Order of Eagles to promote religion – Christianity preferred – through the erection of Eagles-donated tombstones to Jesus Christ but it would be unconstitutional for the Court to require Texas to remove the tombstone because to do so would be an act of hostility towards religion. 

The opposite is true.  It is not “neutral” to favor religion over the absence of religion.[4]  Rather, the absence of religious symbols or messages is an environment where people of religious and nonreligious beliefs can co-exist without divisiveness.

The origin of the “hostility” claim comes from the 1952 Supreme Court decision in Zorach v. Clauson.[5]  Justice Douglas, writing for the Court, said: “[W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.  The government must be neutral when it comes to competition between sects.”[6]  Justice Douglas concluded with the statement: “We cannot read into the Bill of Rights such a philosophy of hostility to religion.”[7]

Zorach and Van Orden are vastly different cases.  Zorach is primarily a religious accommodation case where the “activity” – religious instruction – occurs on private property.  On the other hand, the religious monument in Van Orden is on public property and is “government speech” advancing Judaism and Christianity.  On these simple facts, the cases merit different treatment.[8]

In a concurring opinion, Justice Thomas puts forth a similar specious argument: “For the adherent, this analysis takes no account of the message sent by removal of the sign or display, which may well appear to him to be an act hostile to his religious faith.”[9]  I don’t disagree with the literal truth of Justice Thomas’s statement.  Rather, I believe that Justice Thomas has an duty to inform the “adherents” that the Constitution prohibits government from preferring one religion and another, and between religion and nonreligion AND that to permit Texas to retain the Eagles-donated Ten Commandments monument would be an impermissible preference of the Abrahamic religions of Judaism, Christianity and Islam.  Justice Thomas also appears to be oblivious of the fact that the presence of the Eagles-donated monument is hostile to nonbelievers and non-Abrahamic minority religions.

Shockingly, Justice Breyer reiterates the same nonsense in his opinion concurring in the judgment arguing that removal of the Eagles-donated tombstone to Jesus Christ would “exhibit a hostility toward religion that has no place in our Establishment Clause traditions.”[10]  Again, the flaw in the argument is that removal of the monument would be in furtherance of religious neutrality, not hositility.

No, Mr. Chief Justice and Justices Scalia, Kennedy, Thomas and Breyer, the removal of the Eagles-donated Ten Commandments monument from the Texas State Capitol grounds would have demonstrated faithfulness to the Constitution by enforcing the First Amendment prohibition against governmental acts “respecting an establishment of religion.”

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

[2]  Christian apologetics is the branch of philosophy that defends Christianity through pseudo rational argument.  See Christian apologetics at http://en.wikipedia.org/wiki/Christian_apologetics and Christian Apologetics and Research Ministry at http://carm.org/.

[3]  The Chief Justice was joined in his plurality opinion by Justices Scalia, Kennedy and Thomas.

[4]  The absence of religion is not the same as to favor nonreligion.  Favoring nonreligion would be, for example, to permit groups such as American Atheists, American Humanist Association or Freedom From Religion Foundation to erect their symbols or place their messages on public property without permitting Jewish, Christian or Islamic groups the opportunity to do the same. 

[5]  Zorach v. Clauson, 343 U.S. 306 (1952) – the Supreme Court held that a New Your City program which permitted its public schools to release students during the school day so that they could attend off-site religious instruction or devotional exercises did not violate the Establishment Clause.

[6]  Id., at 314.

[7]  Id., at 315.

[8]  I believe, however, that Zorach was wrongly decided because the case was not so much about the offsite instruction as it was the release time during the normal school day.  In this context, the program’s purpose and effect was to promote religion and, therefore, violated the Establishment Clause (in my opinion).

[9]  Id. (Thomas,  J., concurring), at 697 (2005).

[10]  Id. (Breyer, concurring in the judgment), at 704.  Justice Breyer’s concurrence in Van Orden makes no sense given On the same day – Black Friday (June 25, 2005), Justice Breyer was in the majority in McCreary County v. ACLU of Ky., which held that the display of the Ten Commandments in the McCreary County Courthouse violated the Establishment Clause.

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]

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[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 #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.