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Jewish World Review March 1, 2005 / 20 Adar I, 5765
Terry Eastland
Thou shalt leave the monument on Capitol grounds
http://www.NewsAndOpinion.com |
The Supreme Court will end its current term this summer with the state of Texas once again a party in one of the year's biggest cases. The case, which will be argued Wednesday, was brought against the state by Thomas Van Orden, the homeless attorney who lives in a tent in a wooded area in Austin. Mr. Van Orden objects to the Ten Commandments monument located on the grounds of the Capitol. It is an unconstitutional establishment of religion, he says, and he wants it removed.
Mr. Van Orden lost in federal district court and then in the 5th Circuit. Last fall, he asked the Supreme Court to hear his case. Ordinarily, a winning party opposes review by a higher court. But not this time. The state told the court that it should take Van Orden vs. Perry.
One reason the state took that position is that it could not credibly do otherwise: In 2003, the state filed as a friend of the court urging the court to address the constitutionality of a Ten Commandments monument in a case from another circuit. The state cited "the pronounced split" over the issue among courts of appeals, but the court declined to take the case.
Soon enough, thanks to not only the 5th Circuit's decision in Van Orden but also a 6th Circuit ruling (against a Decalogue monument) in McCreary County vs. ACLU of Kentucky, the split among the circuits merely deepened, making it all the more likely that the court might finally decide to rule on the issue.
That probability was a reason for the state to ask the court to take Van Orden. But so, too, was the case itself: State lawyers believe, correctly, that no other case has facts more favorable to a decision upholding a Ten Commandments monument.
In 1961 the Fraternal Order of Eagles gave the state the monument. Founded as a nonreligious, civic organization in 1898, the Order of Eagles became an advocate for Social Security and other social justice causes. Concerned in the early 1950s about juvenile delinquency, the Eagles thought it would be a good idea to donate to Texas (and other states) monuments containing the Ten Commandments. The text it inscribed on the granite was one agreed to by Catholic, Protestant and Jewish representatives.
The Eagles believed that displays of the Decalogue would highlight the foundation of law in our culture and somehow result in a more virtuous (or, take your pick, less delinquent) America. You can question whether such displays have such effects (though surely they don't make things any worse). But there can be no doubt that the Order of Eagles was engaged in an enterprise of moral improvement, one not aimed at advancing religion.
Nor any doubt that the state understood the donation in the precise terms it was made. The Legislature officially "congratulated" the Eagles "for [their] efforts and contributions in combating juvenile delinquency throughout the nation." The dedication ceremony was attended by only two state legislators - and no prelates of any faith. It was not a religious event. Nor, in the intervening years, has the monument attracted religious activity. It stands on the Capitol grounds amid 16 other monuments celebrating the state's people, events and ideals.
Under the court's tangled First Amendment law, government may not take action whose purpose or effect is to endorse or disapprove religion. You have to be pretty determined to see in the facts of Van Orden a violation of the First Amendment, and it bears noting that no one until now has ever sued over the monument.
It's possible, of course, that five justices will prove to possess the necessary determination. A majority might say that the monument is somehow wrongly located on the Capitol grounds. Or that it needs "secular" explanation. Or that it would be OK if there were no text, only tablets.
The justices, as they annually demonstrate, can be strangely inventive. But the smart betting remains that this court will be a reasonable observer, that it will not regard the monument through Mr. Van Orden's distorting lens, that it will not, even if by only a single vote, send this granite into exile.
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