Jewish World Review March 1, 2005 / 20 Adar I, 5765

Terry Eastland

Eastland
JWR's Pundits
World Editorial
Cartoon Showcase

Mallard Fillmore

Michael Barone
Mona Charen
Linda Chavez
Ann Coulter
Greg Crosby
Larry Elder
Don Feder
Suzanne Fields
James Glassman
Paul Greenberg
Bob Greene
Betsy Hart
Nat Hentoff
David Horowitz
Marianne Jennings
Michael Kelly
Mort Kondracke
Ch. Krauthammer
Lawrence Kudlow
Dr. Laura
John Leo
Michelle Malkin
Jackie Mason
Chris Matthews
Michael Medved
MUGGER
Kathleen Parker
Wes Pruden
Sam Schulman
Amity Shlaes
Roger Simon
Tony Snow
Thomas Sowell
Cal Thomas
Jonathan S. Tobin
Ben Wattenberg
George Will
Bruce Williams
Walter Williams
Mort Zuckerman

Consumer Reports

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.

Donate to JWR


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.

Every weekday JewishWorldReview.com publishes what many in Washington and in the media consider "must reading." Sign up for the daily JWR update. It's free. Just click here.




JWR contributor Terry Eastland is is publisher of The Weekly Standard.Comment by clicking here.


01/28/04: Shift in abortion stance could restore the party
01/04/04: Civil rights panel's outlived its usefulness
12/07/04: Marijuana case is really about power
10/19/04: Justices only seem to be immortal
09/15/04: Second Bush term could bring radical tax change
08/30/04: To appeal to conservatives, add some nuance to compassion
07/28/04: How many more 'adverse' court decisions will it take before the case for an amendment to protect traditional marriage becomes compelling?
07/15/04: Edwards wasn't chosen just for his hair
06/23/04: Special counsel law: Reform gone awry
06/14/04: Reagan's influence is apparent in federal judiciary
05/25/04: What do Bush's sagging approval ratings really mean for November?
05/17/04: We must make distinctions between Berg, Abu Ghraib
05/11/04: College costs rise with students' expectations
04/30/04: A country's declining birthrate into oblivion
04/26/04: Dems escalate the judicial war
04/09/04: Bush was right to permit Rice to testify on 9-11
03/25/04: Colleges doing away with their racially exclusive programs
03/02/04: What does a conservative beat mean for The New York Times?
12/31/03: America is right to press for religious freedom worldwide
10/22/03: Case involving pledge should be easy for justices to decide
10/15/03: Dean places political considerations ahead of national security
08/28/03: Colleges creating policies that discourage intellectual exchange
08/14/03: Progressive reform could end up limiting government
07/30/03: Congressman, please consult Miss Manners
07/23/03:Words reveal much about Bush: Maybe there is a reason he won't retract sentence
07/08/03: Justices also said affirmative action must end
06/25/03: Court's law school ruling isn't persuasive
06/24/03: Whatever the Lynch story, everyone wants it
06/18/03: A judge shows he can set aside his strong views
06/04/03: Boston church becomes politically important again
05/28/03: YWCA names culture warrior as its new head
05/23/03: Washington steps in to help teach history
05/13/03: It may take another election to change filibuster rules
05/07/03: Paige works to improve education from inside out
04/30/03: Iraqis have choice to make regarding religious freedom
04/16/03: Is it acceptable for an education secretary to state a personal preference for religious schooling?
04/08/03: University officials must put academics ahead of athletics
04/02/03: Support for our soldiers means support for their orders
03/27/03: 'Free Iraqi Forces' underscore Bush's sincerity
03/18/03: Dems misunderstand judge's job
03/13/03: Justices show right restraint in ruling on anti-crime measures
03/05/03: America's imperial intentions
02/25/03: The weakness of Dems' stated reason for their filibuster makes you wonder whether it is the real reason
02/19/03: Administration fine-tunes religious rights in public education
02/12/03: France and Germany need to be reminded of the necessity of a strong, even predominant America
02/06/03: Judiciary's 'balance' -- or lack of it -- is our doing
01/29/03: The child who almost wasn't
01/21/03: President decides to punt on affirmative action case
01/14/03: Bush's faith has influenced his conduct in public office
01/07/03: Dems need ideas, not more microphones
12/17/02: Gray Lady should learn that times have changed
12/10/02: Will High Court be guilty of activism?
12/03/02: The missing facts in news accounts of Saudi Princess Haifa's putative 'charity'
11/26/02: Americans don't have to be worried about Big Brother
11/19/02: Texas' reputation for flamboyance may be revised
11/11/02: Bush now can repair confirmation system
11/05/02: Dems shouldn't believe too strongly in history
10/30/02: Snipers had lots of motives
10/23/02: No one should be shut out of marketplace of ideas
10/15/02: Open hearings that could imperil the nation
10/08/02: Debating the clear and present danger
10/01/02: A great awakening in China?
09/25/02: Abortion, again? The settled but still unsettling law of Roe v. Wade
09/18/02: A relevant presidency--and irrelevant U.N?
09/10/02: Ashcroft's obtuse judicial statement
09/04/02: The Education Gadfly stings again
08/28/02: So then let the president declare war
08/21/02: Will Bush finally 'fix' affirmative action once and for all?
08/06/02: President must take up cause of Egyptian democracy warrior
07/31/02: With each war, civil liberties are curtailed less

© 2005, Terry Eastland