“The sole function of the monument on the grounds of Texas’ State Capitol is to display the full text of one version of the Ten Commandments.” [1]

Chapter 8 – Van Orden v. Perry: The
Supreme Court Blesses the Ten Commandments
[Working Draft, Nov. 9, 2011]

    Black Monday – June 27, 2005 &ndash is the day a divided (5-4) Supreme Court of the United States handed down its decision in Van Orden v. Perry. The plurality opinion by Chief Justice Renquist and an opinion by Justice Breyer concurring in the result, gave excuse after excuse why one of the pre-eminent symbols of the Christian faith is allowed to remain on the Texas capitol grounds notwithstanding the constitutional prohibition against governmental acts “respecting an establishment of religion.”[2] Van Orden did to non-Christians what Plessy v. Ferguson[3] did to blacks in America. Worse, while Plessy held that “separate” accommodations may be equal for purposes of the Fourteenth Amendment’s Equal Protection Clause, Van Orden essentially held that it is permissible for government to privelege Christianity while casting all others as “outsiders”.

    The case of Van Orden v. Perry produced five opinions:

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

    Thomas Van Orden was a homeless attorney living in Austin – the capitol of Texas. Because of his profession, he had occasion to visit the capitol grounds upon which stood an Eagles donated Ten Commandments tombstone. It was a bit odd that it was the only religious monument among numerous monuments and markers.

Souter, dissenting, 744: “When the plurality finally does confront Stone, it tries to avoid the case's obvious applicability by limiting its holding to the classroom setting. The plurality claims to find authority for limiting Stone's reach this way in the opinion's citations of two school-prayer cases, School Dist. of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), and Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). But Stone relied on those cases for widely applicable notions, not for any concept specific to schools. The opinion quoted Schempp's statements that “it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment,” Schempp, supra, at 225, 83 S.Ct. 1560, quoted in Stone, 449 U.S., at 42, 101 S.Ct. 192; and that “the place of the Bible as an instrument of religion cannot be gainsaid,” Schempp, supra, at 224, 83 S.Ct. 1560, quoted in Stone, supra, at 41, n. 3, 101 S.Ct. 192. And Engel was cited to support the proposition that the State was responsible for displaying the Commandments, even though their framed, printed texts were bought with private subscriptions. Stone, supra, at 42, 101 S.Ct. 192 (“[T]he mere posting of the [Commandments] under the auspices of the legislature provides the official support of the State Government that the Establishment Clause prohibits” (ellipsis and internal quotation marks omitted)). Thus, the schoolroom was beside the point of the citations, and that is presumably why the Stone Court failed to discuss the educational setting, as other opinions had done when school was significant. E.g., Edwards v. Aguillard, 482 U.S. 578, 584, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). Stone did not, for example, speak of children's impressionability or their captivity as an audience in a school class. In fact, Stone's reasoning reached the classroom only in noting the lack of support for the claim that the State had brought the Commandments into schools in order to “integrat[e] [them] into the school curriculum.” 449 U.S., at 42, 101 S.Ct. 192.”:

FN7. “In any event, the fact that we have been, as the plurality says, “ ‘particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools,’ ” ante, at 2863-2864, does not of course mean that anything goes outside the schoolhouse. As cases like County of Allegheny and Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), illustrate, we have also closely scrutinized government displays of religious symbols. And for reasons discussed in the text, the Texas monument cannot survive even a relaxed level of scrutiny.”

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 Footnotes:

1. Justice Stevens, dissenting opinion, Van Orden v. Perry, 545 U.S. 677, 707 (2005) – more fully discussed in this chapter, is the case in which the Supreme Court held that the display of a Ten Commandments monument on the Texas state capitol grounds in Austin did not violate the Establishment Clause.
2. Const., amend 1. “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof ...” Ritter’s CONSTITUTIONAL LAW 101: The Establishment Clause requires federal, state and local governments, including agencies, commissions and schools (“"governmental actors”), to be neutral with respect to religion. Neutrality means that a governmental actor may not act in a manner that prefers one religion over another, religion over nonreligion or nonreligion over religion. This view was reaffirmed in McCreary County v. ACLU of Ky., 545 U.S. __, 874-876 (2005), the companion case of Van Orden. [see pp. 24 & 25 of VO for Stevens discussion of SoCS] See Stevens, dissenting, 733-734: “The principle that guides my analysis is neutrality.FN35 The basis for that principle is firmly rooted in our Nation's history and our Constitution's text.” See also Souter, dissenting, 737 “Madison's condemnation of “employ[ing] Religion as an engine of Civil policy,” Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183, 187 (G. Hunt ed.1901).”
3. 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.
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Background

[Give background of case. + reference to Eagles 10C program.]

    "[The District Court] found that the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency," at 682

    "The District Court also determined that a reasonable observer, mindful of the history, purpose, and context, would not conclude that this passive monument conveyed the message that the State was seeking to endorse religion." at 682

    "The Court of Appeals affirmed the District Court's holdings with respect to the monument's purpose and effect." at 682-683

    Two Faces: (1) "the strong role played by religion and religious traditions throughout our Nation's history." at 683

    "Of course, the Ten Commandments are religious-they were so viewed at their inception and so remain. The monument, therefore, has religious significance." at 690

    "There are, of course, limits to the display of religious messages or symbols." at 690

    But the Rehnquist majority did not see the Eagles 10C as having reached that limit.

    One face looks to the past in acknowledgment of our Nation's heritage, while the other looks to the present in demanding a separation between church and state.

    Reconciling these two faces requires that we neither abdicate our responsibility to maintain a division between church and state nor evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage:

    Chief Justice Rehnquist states: "Of course, the Ten Commandments are religious -- they were so viewed at their inception and so remain. The monument, therefore, has some religious significance." This is an extreme condescending understatement. Moses was a lawgiver of religious law. For those not of his religious creed, he was of no significance. Thus, the only "historical" meaning that either Moses or his Ten Commandments have is in a religious context. Neither Moses nor his Ten Commandments, nor the history attached thereto, is secular.

    Monument - "Its primary content is the text of the Ten Commandments." at 681

    dual significance p. 692 Under the Lemon test, if the governmental act/religious object has both a secular and a religious purpose, OK. Any secular purpose.

Of course, the Ten Commandments are religious-they were so viewed at their inception and so remain. The monument, therefore, has religious significance. at 690

    There are, of course, limits to the display of religious messages or symbols. at 690

    Graham & prayer cases at 690-691 but Edwards v. Aguillard recognized that Stone-along with Schempp and Engel-was a consequence of the “particular concerns that arise in the context of public elementary and secondary schools.” 482 U.S., at 584-585

    “Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.” p. 690. Perhaps not necessarily, but it certainly should create a strong presumption that it is a violation./bob

    10C are religious, “but has an undeniable historic meaning.” PROBLEM - placed on the capitol grounds to promote the 10Cs currently.

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 Footnotes:

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The Plurality and Breyer's Opinions Filled With Legal Fictions

Van Orden v. Perry is one of the worst reasoned Supreme Court decisions for a reason -- it is filled with legal fictions.

Legal Fiction #1 - The Establishment Clause Is Unintelligible

    Justice Thomas Criticizes "Flexibility" of Establishment Clause Precedent.

    It is ridiculous for Justice Thomas to criticize the Court's "flexibility", or unpredicitiblity, in deciding Establishment Clause cases when he is a major source of the instability. [P11] In particular, Justice Thomas takes issue with the Lemon Test. This should be no surprise as Justice Thomas either refuses to apply the test, or misapplies it -- in stead, preferring to analyze governmental action using his unique view of the Founders "original intent." I agree with him that the Court's twin 2005 decision of Van Orden and McCreary will create chaos (and in fact have created chaos), but it is of the Court's own choosing.

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 Footnotes:

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    Thomas - Court’s precedents are “unintelligibililty” p. 697

Legal Fiction #2: The Lemon Test Is Not “Useful”

    Chief Justice Rehnquist employs the classic "when the test doesn't give you the result you want, say its a defective test" justification.

     we think [Lemon test] not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds. at 686

    Under the Lemon Test, established in Lemon v. Kurtzman,[1] if any of the three prongs below are violated, the government's action will be deemed unconstitutional under the Establishment Clause:

1. The government's action must have a secular purpose.
2. The government's action must not have the primary effect of either advancing or inhibiting religion.
3. The government's action must not result in an "excessive government entanglement" with religion.

    The courts apply tests for two reasons -- they form a standard of justice and create predictability. The Lemon test is an excellent one because of its clarity, simplicity and usefullness. The problem with the Lemon test (as refined by subsequent Supreme Court decisions) is not with the test itself, but that judges don't like it when applying it would produce a result contrary to their wishes. Consequently, such judges either ignore the rule (by saying it doesn't apply in their case) or concotting phony secular purposes, denying that the offending act has a primary affect of advancing religion or would result in excessive government entanglement. There's nothing like changing the rules when you would lose undering existing rules.

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 Footnotes:

1. Lemon v. Kurtzman,403 U.S. 602, 612-613 (1971).
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Legal Fiction #3: 40 Years Maketh a Wrong Okay

Where, as in Van Orden v. Perry, there is no majority opinion, the opinion with the narrowest common view of five justices is said to be the controlling opinion. In Van Orden, that would be Justice Breyer’s opinion. Bryer cast aside Establish Clause jurisprudence for what he called judicial judgment.[1] He reasoned that no one had complained for forty years, so (1) some how Thomas Van Orden's being disturbed is trivial, (2) there was no reason to disburb the monument now, (3) should let sleeping dogs lie or (4) not make a mountain out of a mole hill).

Granted, the purposes of statutes of limitation ARE . . . to give a person (or other legal entitity) injured by another sufficient time to bring a cause of action for damages, to establish finality after that period of time. In the situation of the government display of Eagles donated Decalogs, they are a continuing violation (i.e., the injury is on-going). Thus, a statute of limitations does not start to run.

    "Forty years after the monument's erection and six years after Van Orden began to encounter the monument frequently, he sued" at 682

    ~ to a Statue of Limitations/Repose. No one complained for 40 years/2 generations. p. 682

Souter, dissenting, 746-747: “Finally, though this too is a point on which judgment will vary, I do not see a persuasive argument for constitutionality in the plurality's observation that Van Orden's lawsuit comes “[f]orty years after the monument's erection ... ,” ante, at 2858, an observation that echoes the State's contention that one fact cutting in its favor is that “the monument had stood in Austin ... for some forty years without generating any controversy or litigation,” Brief for Respondents 25. It is not that I think the passage of time is necessarily irrelevant in Establishment Clause analysis. We have approved framing-era practices because they must originally have been understood as constitutionally permissible, e.g., Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (legislative prayer), and we have recognized that Sunday laws have grown recognizably secular over time, McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). There is also an analogous argument, not yet evaluated, that ritualistic religious expression can become so numbing over time that its initial Establishment Clause violation becomes at some point too diminished for notice. But I do not understand any of these to be the State's argument, which rather seems to be that 40 years without a challenge shows that as a factual matter the religious expression is too tepid to provoke a serious reaction and constitute a violation. Perhaps, but the writer of Exodus chapter 20 was not lukewarm, and other explanations may do better in accounting for the late resort to the courts. Suing a State over religion puts nothing in a plaintiff's pocket and can take a great deal out, and even with volunteer litigators to supply time and energy, the risk of social ostracism can be powerfully deterrent. I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause.” (Emphasis added.) [6]

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 Footnotes:

1. Justice Breyer's 40 years quote
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6. Justice Souter dissenting in Van Orden, at __

Legal Fiction #4. The Display of the Ten Commandments on Government Property is Common

    "Such acknowledgments of the role played by the Ten Commandments in our Nation's heritage are common throughout America. We need only look within our own Courtroom" at 688

“incongruous to interpret the [Establishment Clause] as imposing more stringent First Amendment limits on the states that the draftsman imposed on the Federal Government.” p. 688. TRUE - but the 10cs shouldn’t be on federal property.    We need only look within our own Courtroom. Since 1935, Moses has stood, holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze. Representations of the Ten Commandments adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom. Moses also sits on the exterior east facade of the building holding the Ten Commandments tablets.at 688-689

    Similar acknowledgments can be seen throughout a visitor's tour of our Nation's Capital. For example, a large statue of Moses holding the Ten Commandments, alongside a statue of the Apostle Paul, has overlooked the rotunda of the Library of Congress' Jefferson Building since 1897. And the Jefferson Building's Great Reading Room contains a sculpture of a woman beside the Ten Commandments with a quote above her from the Old Testament (Micah 6:8). A medallion with two tablets depicting the Ten Commandments decorates the floor of the National Archives. Inside the Department of Justice, a statue entitled “The Spirit of Law” has two tablets representing the Ten Commandments lying at its feet. In front of the Ronald Reagan Building is another sculpture that includes a depiction of the Ten Commandments. So too a 24-foot-tall sculpture, depicting, among other things, the Ten Commandments and a cross, stands outside the federal courthouse that houses **2863 both the Court of Appeals and the District Court for the District of Columbia. Moses is also prominently featured in the Chamber of the United States House of Representatives. at 689

    One of the repeated allegations of the Christian Right is that the Ten Commandments are ubiquitous, or at least that they are on many government properties. Let's take a reality check to see if they are displayed in full text like the Eagles tombstones, or merely some fuzzy depiction where no English text is displayed.

    Chief Justice Rehnquist wrote in the plurality opinion in Van Orden v. Perry that the federal government displays the Ten Commandments all over Washington, D.C.? Is that true? He said:

In this case we are faced with a display of the Ten Commandments on government property outside the Texas State Capitol. Such acknowledgements of the role played by the Ten Commandments in our Nation’:s heritage are common throughout America. [A] We need only look within our own Courtroom. Since 1935, Moses has stood, holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze. [B] Representations of the Ten Commandments adorn the metal gates lining the north and south sides of the Courtroom as well as [C] the doors leading into the Courtroom. [D] Moses also sits on the exterior east facade of the building holding the Ten Commandments tablets.

Similar acknowledgments can be seen throughout a visitor's tour of our Nation's Capital. For example, [E] a large statue of Moses holding the Ten Commandments, alongside a statue of the Apostle Paul, has overlooked the rotunda of the Library of Congress' Jefferson Building since 1897. [F] And the Jefferson Building's Great Reading Room contains a sculpture of a woman beside the Ten Commandments with a quote above her from the Old Testament (Micah 6:8). [G] A medallion with two tablets depicting the Ten Commandments decorates the floor of the National Archives. [H] Inside the Department of Justice, a statue entitled “The Spirit of Law” has two tablets representing the Ten Commandments lying at its feet. [I] In front of the Ronald Reagan Building is another sculpture that includes a depiction of the Ten Commandments. [J] So too a 24-foot-tall sculpture, depicting, among other things, the Ten Commandments and a cross, stands outside the federal courthouse that houses both the Court of Appeals and the District Court for the District of Columbia. [K] Moses is also prominently featured in the Chamber of the United States House of Representatives.

at 545 U.S. 677, 688-689, 125 S.Ct. 2854, 2862-2863 (2005). (Letters in brackets are for identification purposes.)

    The point being made by Chief Justice Rehnquist, as I understand it, is that the Eagles tombstone in Austin is comparable to the depictions of the Ten Commandments at the following six federal locations:

    The truth of Chief Justice Rehnquist's claim is easy to verify. Below, I have put photographs of the Eagles-donated Ten Commandments tombstone in Austin, Texas (that was the subject of Van Orden) next to each of the above depictions on federal property in Washington, D.C. Do you think that they are comparable? In what respects? Or not at all?

A. Supreme Court's East Wall Frieze

The depiction of Moses holding overlapping tablets on the East Wall Frieze of the courtroom of the Supreme Court. First line – “THOU SHALL MURDER” Second line – “THOU SHALL STEAL” Third line – “COMIT ADULTERY” Fourth line – insufficient characters to translate Photo: Steve Petteway, Collection of the Supreme Court of the United States

Eagles donated Ten Commandments tombstone in Austin, Texas

    Adolph A. Weinman, the sculptor, did an artistic spoof. The Hebrew on the tablet translated into English reads: "Murder," "Steal" and "Commit adultery." The Hebrew character for "Thou shall not" is conveniently omitted (in effect hidden by Moses beard and robe). This fact was confirmed by the oral argument of Jay Sekulow in Pleasant Grove City v. Summum on November 12, 2008 and confirmed by Justice Ginsburg.

Souter, dissenting, at 740-741: “The monument's presentation of the Commandments with religious text emphasized and enhanced stands in contrast to **2894 any number of perfectly constitutional depictions of them, the frieze of our own Courtroom providing a good example, where the figure of Moses stands among history's great lawgivers. While Moses holds the tablets of the Commandments showing some Hebrew text, no one looking at the lines of figures in marble relief is likely to see a religious purpose behind the assemblage or take away a religious message from it. Only one other depiction represents a religious leader, and the historical personages are mixed with symbols of moral and intellectual abstractions like Equity and Authority. See County of Allegheny, supra, at 652, 109 S.Ct. 3086 (STEVENS, J., concurring in part and dissenting in part). Since Moses enjoys no especial prominence on the frieze, viewers can readily take him to be there as a lawgiver in the company of other lawgivers; and the viewers may just as naturally see the tablets of the Commandments (showing the later ones, forbidding things like killing and theft, but without the divine preface) as background from which the concept of law *741 emerged, ultimately having a secular influence in the history of the Nation. Government may, of course, constitutionally call attention to this influence, and may post displays or erect monuments recounting this aspect of our history no less than any other, so long as there is a context and that context is historical. Hence, a display of the Commandments accompanied by an exposition of how they have influenced modern law would most likely be constitutionally unobjectionable.FN4 _____ FN4. For similar reasons, the other displays of the Commandments that the plurality mentions, ante, at 2862-2863, do not run afoul of the Establishment Clause. The statues of Moses and St. Paul in the Main Reading Room of the Library of Congress are 2 of 16 set in close proximity, statues that “represent men illustrious in the various forms of thought and activity ... .” The Library of Congress: The Art and Architecture of the Thomas Jefferson Building 127 (J. Cole and H. Reeds eds.1997). Moses and St. Paul represent religion, while the other 14 (a group that includes Beethoven, Shakespeare, Michelangelo, Columbus, and Plato) represent the nonreligious categories of philosophy, art, history, commerce, science, law, and poetry. Ibid. Similarly, the sculpture of the woman beside the Decalogue in the Main Reading Room is 1 of 8 such figures “represent [ing] eight characteristic features of civilized life and thought,” the same 8 features (7 of them nonreligious) that Moses, St. Paul, and the rest of the 16 statues represent. Id., at 125.The inlay on the floor of the National Archives Building is one of four such discs, the collective theme of which is not religious. Rather, the discs “symbolize the various types of Government records that were to come into the National Archives.” Letter from Judith A. Koucky, Archivist, Records Control Section, to Catherine Millard (Oct. 1, 2003), http://www. christian heritage mins. org/ articles/ Ten_Command ments/ Letter_ archivist.htm (as visited June 16, 2005, and available in Clerk of Court's case file). (The four categories are war and defense, history, justice, and legislation. Each disc is paired with a winged figure; the disc containing the depiction of the Commandments, a depiction that, notably, omits the Commandments' text, is paired with a figure representing legislation. Ibid.)As for Moses's “prominen[t] featur[ing] in the Chamber of the United States House of Representatives,” ante, at 2863 (plurality opinion), Moses is actually 1 of 23 portraits encircling the House Chamber, each approximately the same size, having no religious theme. The portraits depict “men noted in history for the part they played in the evolution of what has become American law.” Art in the United States Capitol, House Doc. No. 94-660, p. 282 (1978). More importantly for purposes of this case, each portrait consists only of the subject's face; the Ten Commandments appear nowhere in Moses's portrait.”

B. Metal Gates Lining the North and South Sides of the Courtroom

Supreme Court bronze entrance door. [As you enter the Supreme Court courtroom, the two huge oak doors have the Ten Commandments engraved on each lower portion of each door. It is the Law of Moses. ]

Eagles donated Ten Commandments tombstone in Austin, Texas

C. Doors Leading into the Courtroom

Two tablets with Roman numerals I thru X on the oak doors at the entrance of the courtroom of the Supreme Court./p>

Eagles donated Ten Commandments tombstone in Austin, Texas

D. Moses on the Exterior East Facade of the Supreme Court Building

Moses on the East Pediment of the Supreme Court Building. Note that both tablets are blank.

Eagles donated Ten Commandments tombstone in Austin, Texas

The tablets Moses is holding between his arms and knees are blank. Not one, no less ten, of the Commandments are displayed on the East Pediment.

E. Statue of Moses in the Libriary of Congress

Statue of Moses at the Library of Congress overlooking the Main Reading Room of the Jefferson Building.

Eagles donated Ten Commandments tombstone in Austin, Texas

The statue of Moses is located on a balcony overlooking the Main Reading Room of the Library of Congress. The tablet Moses is holding in his right arm is blank. No “Commandments” are engraved on the tablet.

F. A Sculpture of a Woman Beside the Ten Commandments in the Library of Congress

[To be added.]

G. A Medalion in the Floor of the National Archives

The medalion containing Roman numerals I thru X is about 12 inches in diameter). It is part of a larger medalion on the floor of the National Archives at the entrance way to the Rotunda which houses the Consitution of the United States and the Bill of Rights.

Eagles donated Ten Commandments tombstone in Austin, Texas

    Roman numerals I through X are displayed in a medalion on the floor. There is no text of a any religious "commandment." Since the medalion is at the entrance to the Rotunda where the most important documents of the United States are dipslayed ‐ the Constitution and the Bill of Rights – perhaps the Roman numerals really stand for the Bill of Rights? Who is to say otherwise? The fact of the matter is this medallion is one of four comprising a larger medalion, it is on the floor and tourists walk over it to get to the main room.

H. Spirit of the Justice Statue at the Department of Justice

Spirit of Justice (also known as “Minnie Lou”) (left) and Majesty of Law in the Great Hall at the Department of Justice
A close up the Ten Commandment tablets at the foot of Spirit of Justice. Note that the tablets are blank (i.e., no Commandments are inscribed on either of the tablets).	Eagles donated Ten Commandments tombstone in Austin, Texas

    Two partially nude statues in the Great Hall of the Department of Justice. The female statue (on the left) represents the Spirit of Justice. The 10- to 12-foot statue has its arms raised and a toga draped over its body. The other statue, of a man with a cloth covering his midsection, is called the Majesty of Law. Both statues, cast in aluminum, were installed in the 1930s when the Department of Justice Building was finished.

I. The Liberty of Worship Statue Outside the Ronald Reagan Building

A closeup of "Liberty of Worship" statue resting on a Ten Commandments tablet outside the Ronald Reagan Building in Washington, D.C.

Eagles donated Ten Commandments tombstone in Austin, Texas

    "OUR LIBERTY OF WORSHIP IS NOT A CONCESSION NOR A PRIVILEGE BUT AN INHERENT RIGHT" is chiseled on the front side of the monument. Roman numerals (II, III, IV, V, VII, VIII, IX and X) appear on a tablet below the right arm of the figure – but there is no text of any of the Ten Commandments. Adolph A. Weinman is the sculptor. He also did the friezes in the Supreme Court's courtroom. The figure is looking away from the plaque. Does that suggest irrelevance or indiffernce? I didn't come away with a message of religious message.

J. Outise of the U.S. District Court Building

A three-sided mounument outside the U.S. Court of Appeals & District Court building. At the top is a depiction of praying hands, a Latin cross and two tablets with Hebrew inscribed on them.

Eagles donated Ten Commandments tombstone in Austin, Texas

    The text on the two tablets is in Hebrew. Probably fewer than 1% of observers can read what is written on them unlike the Austin tombstone above. The larger Latin cross suggests a government preference of Christianity over Judaism specifically and other religions generally. Nonreligious world views such as Secular Humanism are not depicted at all.

A close-up of the top of three-sided mounument showing praying hands, a Latin cross and two tablets with Hebrew inscribed on them.

A closeup of the two tablets atop of a marble totem poll outside the U.S. District Court building.

[English translation of the tablets]

K. Moses in the Chamber of the United States House of Representatives.

The base-relief of Moses in the U.S. House of Representatives Chamber was sculpted by Jeans de Marco in 1950. It is 28 inches in diameter. Photo: Wikipedia Commons

Eagles donated Ten Commandments tombstone in Austin, Texas

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Legal Fiction #5: The Ten Commandments Monument is Part of a “Museum”

museum/library defense. Key - have multiple samples of same genre. E.g., Christian, Muslim, Jewish, Athiest, etc. NOT all of one type or only one of a kind.

    "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.'” (a) museum; (b) reflects the history of Texas; at 681

    Nothing unique about the Ten Commandments to history of the state of Texas.

    The monuments are: Heroes of the Alamo, Hood's Brigade, Confederate Soldiers, Volunteer Fireman, Terry's Texas Rangers, Texas Cowboy, Spanish-American War, Texas National Guard, Ten Commandments, Tribute to Texas School Children, Texas Pioneer Woman, The Boy Scouts' Statue of Liberty Replica, Pearl Harbor Veterans, Korean War Veterans, Soldiers of World War I, Disabled Veterans, and Texas Peace Officers. at 682

Souter, dissenting, 742: “And the Decalogue could, as Stone suggested, be integrated constitutionally into a course of study in public schools. 449 U.S., at 42, 101 S.Ct. 192.FN5” FN5. Similarly permissible, though obviously of a different character, are laws that can be traced back to the Commandments (even the more religious ones) but are currently supported by nonreligious considerations. See McCreary County v. American Civil Liberties Union of Ky., ante, 545 U.S., at 861, 125 S.Ct., at 2732, 2005 WL 1498988 (opinion of the Court) (noting that in McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), the Court “upheld Sunday closing statutes on practical, secular grounds after finding that the government had forsaken the religious purposes behind centuries-old predecessor laws”).

Souter, dissenting, 742-743: Texas seeks to take advantage of the recognition that visual symbol and written text can manifest a secular purpose in secular company, when it argues that its monument (like Moses in the frieze) is not alone and ought to be viewed as only 1 among 17 placed on the 22 acres surrounding the State Capitol. Texas, indeed, says that the Capitol grounds are like a museum for a collection of exhibits, the kind of setting that several Members of the Court have said can render the exhibition of religious artifacts permissible, even though in other circumstances their display would be seen as meant to convey a religious message forbidden to the State. County of Allegheny, 492 U.S., at 595, 109 S.Ct. 3086 (opinion of Blackmun, J., joined by STEVENS, J.); Lynch v. Donnelly, 465 U.S. 668, 692, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'CONNOR, J., concurring). So, for example, the Government of the United States does not violate the Establishment Clause by hanging Giotto's Madonna on the wall of the National Gallery. But 17 monuments with no common appearance, history, or esthetic role scattered over 22 acres is not a museum, and anyone strolling around the lawn would surely take each memorial on its own terms without any dawning sense that some purpose held the miscellany together more coherently than fortuity and the edge of the grass. One monument expresses admiration for pioneer women. One pays respect to the fighters of World War II. And one quotes the God of Abraham whose command is the sanction for moral law. The themes are individual grit, patriotic courage, and God as the source of Jewish and Christian morality; there is no common denominator. In like circumstances, we rejected an argument similar to the State's, noting in County of Allegheny that “[t]he presence of Santas or other Christmas decorations elsewhere in the ... [c]ourthouse, and of the nearby gallery forum, fail to negate the [crèche's] endorsement effect.... The record demonstrates ... that the crèche, with its floral frame, was its own display distinct from any other decorations or exhibitions in the building.” 492 U.S., at 598-599, n. 48, 109 S.Ct. 3086.FN6

FN6. It is true that the Commandments monument is unlike the display of the Commandments considered in the other Ten Commandments case we decide today, McCreary County. There the Commandments were posted at the behest of the county in the first instance, whereas the State of Texas received the monument as a gift from the Eagles, which apparently conceived of the donation at the suggestion of a movie producer bent on promoting his commercial film on the Ten Commandments, Books v. Elkhart, 235 F.3d 292, 294-295 (C.A.7 2000), cert. denied, 532 U.S. 1058, 121 S.Ct. 2209, 149 L.Ed.2d 1036 (2001). But this distinction fails to neutralize the apparent expression of governmental intent to promote a religious message: although the nativity scene in County of Allegheny was donated by the Holy Name Society, we concluded that “[n]o viewer could reasonably think that [the scene] occupies [its] location [at the seat of county government] without the support and approval of the government.” 492 U.S., at 599-600, 109 S.Ct. 3086, 106 L.Ed.2d 472.

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Legal Fiction #6: The Eagles’s Tombstones are Nonsectarian

“The Establishment Clause, if nothing else, prohibits government from “specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ.” Lee v. Weisman, 505 U.S. 577, 641, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (SCALIA, J., dissenting). Given that the chosen text inscribed on the Ten Commandments monument invariably places the State at the center of a serious sectarian dispute, the display is unquestionably unconstitutional under our case law. See Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another”).” Justice Stevens, dissenting, at 718-719.

Source: http://www.merriam-webster.com/dictionary/sectarian Date webpage visited: November 19, 2009

1 : of, relating to, or characteristic of a sect or sectarian
2 : limited in character or scope : parochial

1 a : a dissenting or schismatic religious body; especially : one regarded as extreme or heretical b : a religious denomination
archaic : sex 1 3 a : a group adhering to a distinctive doctrine or to a leader b : party c : faction

    “Moreover, despite the Eagles' best efforts to choose a benign nondenominational text,FN15 the Ten Commandments display **2880 projects not just a religious, but an inherently sectarian, message. There are many distinctive versions of the Decalogue, ascribed to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious significance.FN16 See Lubet, The Ten Commandments in Alabama, 15 Constitutional Commentary 471, 474-476 (Fall 1998). In choosing to display this version of the Commandments, Texas tells the observer that the State supports this side of the doctrinal religious debate. The reasonable observer, after all, has no way of knowing that this text was the product of a compromise, or that there is a rationale of any kind for the text's selection. FN17” Justice Stevens, dissening,at 717-718

FN17. Justice SCALIA's willingness to dismiss the distinct textual versions adhered to by different faiths in the name of generic “monotheism” based on mere speculation regarding their significance, McCreary County, ante, 545 U.S., at 909, 125 S.Ct., at 2758, 2005 WL 1498988, is not only somewhat ironic, see A. Scalia, A Matter of Interpretation 23-25 (1997), but also serves to reinforce the concern that interjecting government into the religious sphere will offend “adherents who consider the particular advertisement disrespectful,” Allegheny County, 492 U.S., at 651, 109 S.Ct. 3086 (STEVENS, J., concurring in part and dissenting in part). at 718

See also FN15 and FN16 of Stevens dissenting opinion.

    See Appendix 13 for a description of the Jewish, Catholic and Protestant versions of the Ten Commandments.

“displaying this sectarian text at the state capitol should invoke a powerful presumption of invalidity.” Stevens, dissenting at 721

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Legal Fiction #7: Removal of the Tombstone Would Constitute Hostility Towards Religion

    Perhaps the most incredulous of all arguments made by the Chief Justice is that removal of the Ten Commandments tombstone would evince a hostility towards (the Christian) religion. No, Mr. Chief Justice, it evidences faithfullness to the Cosntitution.List of cases where the assertion is made. State nature of case in parenthesis..

    "[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."” quoting Zorach at 684 [See FN3]

    OK to accommodate religion. p. 684

    What does the E.C. require. => neutrality

    List of cases accommodating religion; and a list of cases finding government involvement to be in violation of the E.C. See 684-686.

    "the principle that governmental intervention in religious matters can itself endanger religious freedom." at 683

    First Amendment - neutrality forbids hostility towards religion. It is not hostility to treat all religions alike or to exclude symbols or statues of Christianity if other symbols and statues of other religions are not included.

    [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.” Zorach v. Clauson, 343 U.S. 306, 313-314, 72 S.Ct. 679, 96 L.Ed. 954 (1952). at 684

    See also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 845-846, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (warning against the “risk [of] fostering a pervasive bias or hostility to religion, **2860 which could undermine the very neutrality the Establishment Clause requires”).

    [add photo of west pediment here]“EQUAL JUSTICE UNDER LAW”: is engraged on the west pediment of the Supreme Court Building. How is favoring Christianity equality under the law? It isn’t.

    Opinions of Justices Thomas and Breyer also note that removal would suggest a hostility to religion. Breyer at 704.

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Legal Fiction #8: The Eagles Tombstones are Passive

    See p. 686

    “The monolith displayed on Texas Capitol grounds cannot be discounted as a passive acknowledgment of religion” in light of an “official state endorsement of the message that there is one, and only one, God.”[1]>

    Whether the tombstones are passive depends upon one’s perception of the granite monuments. If by passive it is meant that they don’t talk, walk or speak, or are not illuminated, they the statement is true. However, if passive it is meant that the tombstones are “harmless,” then they are aggressive rather than passive.

    The placement of the Ten Commandments monument on the Texas State Capitol grounds is a far more passive use of those texts than was the case in Stone, [at 690 or 691?]

Differentiates with Stone; here not coercive. Not a school setting. Not tender years. p. 691

    I don't believe that either of those terms are used in the Constitution. The point by Chief Justice Rehnquist is a red herring. He is saying that the Eagles Ten Commandment tombsone doesn't move or speak out loud.

    [P7]Chief Justice Rehnquist writes: "The placement of the Ten Commandments monument on the Texas State Capitol grounds is a far more passive use of those texts than was the case in Stone [v. Graham, 449 U.S. 39 (1980)]." Is he kidding? First, the Chief Justice doesn't explain why a Ten Commandments poster in a Kentucky classroom, as in Stone, is more aggresive than 6-foot tall granite monolith on the Texas state capiltol grounds.

    To understand the aggerssiveness of the Texas monolith, see the section "The Aggressiveness of the Eagle's Ten Commandments Monoliths". Just for starters, the monolith is owned by the state of Texas, it constitutes speech by the state of Texas and it COMMANDS people to act in a particular manner.

Souter, dissenting, 745: “:Nor can the plurality deflect Stone by calling the Texas monument “a far more passive use of [the Decalogue] than was the case in Stone, where the text confronted elementary school students every day.” Ante, at 2864. 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. The problem in Stone was simply that the State was putting the Commandments there to be seen, just as the monument's inscription is there for those who walk by it.”

To be sure, Kentucky's compulsory-education law meant that the schoolchildren were forced to see the display every day, whereas many see the monument by choice, and those who customarily walk the Capitol grounds can presumably avoid it if they choose. But in my judgment (and under our often inexact Establishment Clause jurisprudence, such matters often boil down to judgment, see ante, at 2869 (BREYER, J., concurring in judgment)), this distinction should make no difference. The monument in this case sits on the grounds of the Texas State Capitol. There is something significant in the common term “statehouse” to refer to a state capitol building: it is the civic home of every one of the State's citizens. If neutrality in religion means something, any citizen should be able to visit that civic home without having to confront religious expressions clearly meant to convey an official religious position that may be at odds with his own religion, or with rejection of religion. See County of Allegheny, 492 U.S., at 626, 109 S.Ct. 3086 (O'CONNOR, J., concurring in part and concurring in judgment) (“I agree that the crèche displayed on the Grand Staircase of the Allegheny County Courthouse, the seat of county government, conveys a message to nonadherents of Christianity that they are not full members of the political community .... The display of religious symbols in public areas of core government buildings runs a special risk of making religion relevant, in reality or public perception, to status in the political community” (alteration and internal quotation marks omitted)).

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Legal Fiction #9: The Eagles are Not a Religious Organization

[State did not have a secular purpose for accepting the Eagles tombstone]

    The identification of an organization as a "A", infers that they are not "B".

    The courts have held that the purpose of the private donor in gifting a monument is not relevant. Rather, its the purpose of the government in accepting the monument that is dispositive for purposes of the Lemon test.[1]

    Rehnquist describes the Fraternal Order of Eagles ("Eagles") as "a national social, civic, and patriotic organization". [p4] He convenietly and intentionally left out the major fact that the Eagles are a religious organization, as well. First, like the Boy Scouts of America [FN-1], the Eagles require as a condition of membership that its members believe in a god. Second, the Eagles printed tens of thousands Ten Commandment posters in the 1940's and 1950's [verify] to place in schools and courthouses to promote religion. Third, the Eagles donated more than 150 Ten Commandment granite monoliths to cities, states and others for the purpose of . . . [spreading religious rules ~ similar to their efforts to spread patriotism]. And fourth, the Eagles have a position [or did] of chaplain and have religious activities such as prayer at their payer or new member initiation ceremonies [verify]. By ignoring one of the primary purposes of the Eagles, the majority was able to surepticiously deny that the Eagles motivation for donating the Decalogs was religious.

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1. Purpose/intent of donor not relevant. Rather purpose of government for accepting the monument. Lemon test.
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Legal Fiction #10: “Our Instituions Presupose a Supreme Being”

selective use of history

    “'Chief Justice Marshall himself penned the historical genesis of the Court's assertion that our “institutions presuppose a Supreme Being,” see Zorach, 343 U.S., at 313, 72 S.Ct. 679, writing that the “ ‘American population is entirely Christian, & with us, Christianity & Religion are identified. It would be strange, indeed, if with such a people, our institutions did not presuppose Christianity, & did not often refer to it, & exhibit relations with it,’ ” Letter from John Marshall to Jasper Adams (May 9, 1833) (quoted in Dreisbach 18-19). Accord, Story § 988, at 700 (“[A]t the time of the adoption of the constitution, ... the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state ... ”).” Stevens, dissenting, FN30 at 728 the point here is that at the time the Constitution was written and for the next 100 years or so, the prevailing view was that the First Amendment was intended to protect one Christian sect from another - as religion and Christianity were synonymous. Thus, Judaism and Islam, who were among the prefered “monotheistic” religious were not part of the protected class as Justice Scalia would suggest. Stevens says that the inclusion of Judaism and Islam would have shocked CJ Marshall and J Story. No historical evidence to support Scalia’s contention that the Founders meant to prefer monotheistic religions. Stevens, dissenting, at 729. Generic references to “God” are not such evidence. Note: “Story's vision that States should not discriminate between Christian sects has as its foundation the principle that government must remain neutral between valid systems of belief. As religious pluralism has expanded, so has our acceptance of what constitutes valid belief systems.” Stevens, dissenting, at 734.

    [The Ten Commandments are the foundation of our legal system.]

    False. The Constitution of the United Statres created secular institutions of government which derive their powers from the people.[1]

    Americans are a religious people

    “strong role played by religion and religious traditions throughout our Nation’s history.” p. 683 Christian supremacy. Founding Fathers devote to God. p. 683

    HERITAGE THEME - acknowledgements are part of our nation’s heritage. p. 683

“nation founded by religious refuges and dedicated to religious freedom” p. 688. Does not accurately state the reasons settlers emigrated from Europe. Myopic. Christian Supremacy.

    ’Our institutions presuppose a Supreme Being“ [x] at 683 [FN2. See also Engel v. Vitale, 370 U.S. 421, 434, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (“The history of man is inseparable from the history of religion”); Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed. 954 (1952) (“We are a religious people whose institutions presuppose a Supreme Being”).]

    “When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. at 684

    FN3. Despite Justice STEVENS' recitation of occasional language to the contrary, post, at 2876, and n. 7 (dissenting opinion), we have not, and do not, adhere to the principle that the Establishment Clause bars any and all governmental preference for religion over irreligion. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987); Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984); Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983); Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). Even the dissenters do not claim that the First Amendment's Religion Clauses forbid all governmental acknowledgments, preferences, or accommodations of religion. See post, at 2876 (opinion of STEVENS, J.) (recognizing that the Establishment Clause permits some “recognition” or “acknowledgment” of religion); post, at 2893-2894, and n. 4 (opinion of SOUTER, J.) (discussing a number of permissible displays with religious content). at 684

    [p4]"Our institutions presuppose a Supreme Being". This is an absurd statement. Only (most) religious institutions presuppose a god or gods. The fact that under the American system of governance, its powers are derived from the people for the benefit of the people and neither for a god or gods, and that there is no religious test for public office refutes CJ Rehnquist's assertion absolutely. It is inconceivable to me that any one who takes an oath or affirmation to "uphold and defend the Constitution" and who shares CJ Rehnquist's view is qualified under the Constitution to serve this country in such a capacity.

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Legal Fiction #11: We've Continuously Acknowledge God Since 1789

    Physics ~ Tradition - Theory: Newton’ First Law of Motion (or law of intertia) - that an object in motion, will continue in a straight line at a constant speed unless an external force is applied. Is not the Establishment Clause an external force to these “acknowledgments” that would otherwise stop these religious practices absent tyranny of the majority?

    “display of the full text of the Ten Commandments, given the content of the actual display and the context in which it is situated, sets this case apart from the countless examples of benign government recognitions of religion.” Stevens, dissenting, at 722-723.

    Opinions by CJ Rehnquist and Justice Scalia ignore contervailing forces – the many opportunities when religion could have been insterted into governmental activities either deliberately (as in SoCS) or unintentionally.

    See FN27, Stevens, dissenting, at 726. “The contrary evidence cited by THE CHIEF JUSTICE and Justice SCALIA only underscores the obvious fact that leaders who have drafted and voted for a text are eminently capable of violating their own rules. The first Congress was-just as the present Congress is-capable of passing unconstitutional legislation. Thus, it is no answer to say that the Founders' separationist impulses were “plainly rejected” simply because the first Congress enacted laws that acknowledged God. See McCreary County, ante, 545 U.S., at 896, 125 S.Ct., at 2754-2755, 2005 WL 1498988 (SCALIA, J., dissenting). ”

    “Thus, the presentation of these religious statements as a unified historical narrative is bound to paint a misleading picture. It does so here. In according deference to the statements of George Washington and John Adams, THE CHIEF JUSTICE and Justice SCALIA, see ante, at 2861 (plurality opinion); McCreary County, ante, 545 U.S., at 886, 887-888, 125 S.Ct., at 2749, 2005 WL 1498988 (dissenting opinion), fail **2884 to account for the acts and publicly espoused views of other influential leaders of that time.” Stevens, dissenting, at 724. e.g., thomas Jefferson refused to issue Thanksgiving Proclamations (see FN24, at 724, Stevens, dissenting) and Barack Obama November __, 2009 procalamation did not reference a diety. See Appendix 15.

    “There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.” quoting Lynch v. Donnelley, at 686 TRADITION Defense

    History/tradition of acknowledging God

    “There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.׏ Id., at 674, 104 S.Ct. 1355. For example, both Houses passed resolutions in 1789 asking President George Washington to issue a Thanksgiving Day Proclamation to “recommend to the people of the United States a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favors of Almighty God.” 1 Annals of Cong. 90, 914 (internal quotation marks omitted). President Washington's proclamation at 686-687

    Recognition of the role of God in our Nation's heritage has also been reflected in our decisions. We have acknowledged, for example, that “religion has been closely identified with our history and government,”**2862 School Dist. of Abington Township v. Schempp, 374 U.S., at 212, 83 S.Ct. 1560, and that “[t]he history of man is inseparable from the history of religion,” Engel v. Vitale, 370 U.S. 421, 434, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). at 687

    This recognition “as led us to hold that the Establishment Clause permits a state legislature to open its daily sessions with a prayer by a chaplain paid by the State. Marsh v. Chambers, 463 U.S., at 792, 103 S.Ct. 3330. at 687-688

    Such a practice, we thought, was “deeply embedded in the history and tradition of this country.””at 688

    Quoting Lynch v. Donnelly, 465 U.S. 668, 674 (1984): “There is an unbroken history of official acknowledgment by all three branches of government of the role religion in American life from at least 1789.” This is untrue. Several points. First, CJ Rehnquist cites Thanksgving Day proclamations. But Thomas Jefferson . . . Second, and fortunately, many presidents believed in the separation of church and state and acted accordingly by foregoing many opportunities of entanglement. And third, Moreover, the practices which CJ Rehnquist writes of are, quite frankly, blemishishes on America as a failure of Congress and the courts to uphold the Constitution. Here are a few: “God save this honorable Court”, “In God We Trust” on our coins and currency (195X), “under God” in the Plege of Allegiance to the Flag (1954), Ten Commandment posters in courthouses and schools and military bands playing "God Bless America".

    Stevens at 711-712 >> “The wall that separates the church from the State does not prohibit the government from acknowledging the religious beliefs and practices of the American people, nor does it require government to hide works of art or historic memorabilia from public view just because they also have religious significance.” at 711

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Legal Fiction #12: The Ten Commandments Are Part Of Texas’s Political And Legal History

    Texas has treated its Capitol grounds monuments as representing the several strands in the State’s political and legal history. The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government. We cannot say that Texas' display of this monument violates the Establishment Clause of the First Amendment. at 691-692

    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.” Tex. H. Con. Res. 38, 77th Leg., Reg.Sess. (2001). at 681

    “several strands”]Where's the “beef”? Admittedly, the author only lived in Texas more than 40 years ago and is not particularly familiar with Texas law (except a few of its mo’e egregious recent laws like its revision to the Texas Pledge (inserting “under God”), public school moment of silence and bible study laws and Religious Viewpoints Anti-Discrimiantion Act). Like many other claims by Chief Justice Rehnquist, he fails to give a single example of the relationship of the Ten Commandments to the state of Texas.

“Viewed on its face, Texas’ display has no purported connection to God’s role in the formation of Texas or the founding of our Nation; nor does it provied the reasonable observer any basis to guess that it was erected to honor any individual or organization.”[1] Instead, Stevens argues [continues] that “The message transmitted by Texas’ chosen display is quite plain: This State endorses the divine code of the “Judeo-Christian””[2]

    The District Court rejected Texas’ claim that the actual purpose of the Decalog’'s display was to signify its its influence on secular law and Texas institutions” [Stevens at FN9 at 712]

    Justice Stevens, dissenting, notes that some Texans, including those elected to the Texas legislature, may believe that the Commandments on the Eagles tombstone reflect the “ideals ... that compose Texan identity.”,but the fact of the matter is that Texas, like the entire countrys, is diverse &ndash today (2005) even more than when Texas was admitted to the United States. (at 720) “The monument is no more an expression of the views of every true Texan than was the “Live Free or Die” motto that the State of New Hampshire placed on its license plates in 1969 an accurate expression of the views of every citizen of New Hampshire. See Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977).” Stevens, dissenting, at 720.

    Souter, dissenting, FN3 at 739: “FN3. There is no question that the State in its own right is broadcasting the religious message. When Texas accepted the monument from the Eagles, the state legislature, aware that the Eagles “for the past several years have placed across the country ... parchment plaques and granite monoliths of the Ten Commandments [in order] to promote youth morality and to help stop the alarming increase in delinquency,” resolved “that the Fraternal Order of the Eagles of the State of Texas be commended and congratulated for its efforts and contributions in combating juvenile delinquency throughout our nation.” App. 97. The State, then, expressly approved of the Eagles' proselytizing, which it made on its own.”

add the Texas resolution to the appendix

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Legal Fiction #13: Our Building Recognizes the Role of the Decalog in America's Heritage

    The role of the Decalog in America's heritage is a frequent assertion of the Christian Right, the basis for which is never articulated. This author must confess that he does not have a clue of any significanct role the Ten Commandments has played in the governance of this nation. Clearly, the U.S. Constitution is a wholly secular charter, not a single provision of which is based on the Ten Commandments. Moreover, the "religious laws" enacted during the Colonial Era -- such as blasphemy laws -- have largely been repealed or held to be unconstitutional. And the secular Commandments were either never a part of our laws (e.g., honor thy parents) or are ethical norms not unique to and predated biblical rules.

    Two additional points. First, the Ten Commandments are not displayed in the Supreme Court South Wall Frieze. At best, they are "depicted" there. (See above.) The point is that thier display in the Supreme Court does not begin to compare with the monolith displayed on the Texas state capitol grounds. Simply put, without binoculars and knowledge of Hebrew, it is impossible to read what little is on the tablet.

    Second, and a fact being covered up the Supreme Court, Adolph A. Weinamn (1870-1952), who designed the Court's marble friezes in the courtroom, spoofed the Court when with the Hebrew inscriptions on the tablet held by Moses. The Hebrew translated into English reads:

• "Thou Shall Murder"
• "Thou Shall Commit Adultery"
• "Steal"

    While it could be argued that Moses breard covers up the "not" (since Hebrew is written from right to left) or there was not enough space, other spoofs by Weinman strongly indicate that the omission was deliberate. So if these are the Commandments which the Christian Right stands for, they revel in a glory of absurdity.

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Legal Fiction #14: Inalienable Rights Are Rooted In God

    [P4]Among the disturbing errors Chief Justice Rehnquist makes in Van Orden is his claim that "The fact that the Founding Fathers believed . . . that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself". School Dist. of Abington township v. Schempp, 374 U.S. 203 (1963). First, assuming "Him" to be a god, the fact is that there is no credible evidence of the existence of a god or gods. Obviously, something which does not exist cannot by the source of rights. The author will not belabor this point, and excuse the Chief Justice for not coming into modernity.

    Second, what writings were Chief Justice Rehnquist referring to? While it is true that the Declaration of Independence (1776) states: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." two very important points are often ignored. First, the "Creator" in the DoI is not a reference to the Christian God, though its ambiguity left open that interpretation. [was it in the orginial draft?] and more importantly, the very next sentenced set in motion the disestablishment of religion from government in America "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

    And certainly not U.S. Constitution which totally disestablishing church (religion) and state (government) at the national level. The only reference to religion in the original constitution is in Article 6 -- " . . . " CJ Rehnquist offers no support for his assertion that the Constitution supports the entanglement of the two.

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Legal Fiction #15: The Tombstones are Secular

    Sham secular purpose.

    Souter, dissenting, 739: “on the monument, in fact, detracts from its religious nature” See FN2 &$147;FN2. That the monument also surrounds the text of the Commandments with various American symbols (notably the U.S. flag and a bald eagle) only underscores the impermissibility of Texas's actions: by juxtaposing these patriotic symbols with the Commandments and other religious signs, the monument sends the message that being American means being religious (and not just being religious but also subscribing to the Commandments, i.e., practicing a monotheistic religion).”

    Eagles purpose. The Eagles had a Youth Guidance Program. Commendable.

“’[I]n searching for a youth guidance program [we] recognized that there can be no better, no more defined program of Youth Guidance, and adult guidance as well, than the laws handed down by God Himself to Moses more than 3000 years ago, which laws have stood unchanged through the years. They are a fundamental part of our lives, the basis of all our laws for living, the foundation of our relationship with our Creator, with our families and with our fellow men. All the concepts we live by-freedom, democracy, justice, honor-are rooted in the Ten Commandments. . . .

“‘The erection of these monoliths is to inspire all who pause to view them, with a renewed respect for the law of God, which is our greatest strength against the forces that threaten our way of life.’” Anderson v. Salt Lake City Corp., 348 F.Supp. 1170, 1172 (Utah 1972), rev'd, 475 F.2d 29 (C.A.10 1973).

V.O., Stevens dissenting, at 714-715.

    “The desire to combat juvenile delinquency by providing guidance to youths is both admirable and unquestionably secular. But achieving that goal through biblical teachings injects a religious purpose into an otherwise secular endeavor.” V.O. Stevense dissenting, at 715.

    “As we held 25 years ago, it is beyond dispute that “[t]he Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths.” Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam). For many followers, the Commandments represent the literal word of God as spoken to Moses and repeated to his followers after descending from Mount Sinai.” Stevens, dissenting, at 716.

    The profoundly sacred message embodied by the text inscribed on the Texas monument is emphasized by the especially large letters that identify its author: “I AM the LORD thy God.” Stevens, dissenting, at

     Though the State of Texas may genuinely wish to combat juvenile delinquency, and may rightly want to honor the Eagles for their efforts, it cannot effectuate these admirable purposes through an explicitly religious medium. See Bowen v. Kendrick, 487 U.S. 589, 639-640, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (Blackmun, J., dissenting) (“It should be undeniable by now that religious dogma may not be employed**2879 by government even to accomplish laudable secular purposes”). Stevens, dissenting, at 715

     EC at minimum creates a strong presumption against the display of religious symbols on public property. Stevens p. 708. Starting point of analysis.

    reasonable observer - no basis to guess that the monument was erected to honor the Eagles. Stevens, p. 707

    Governments obligation, Stevens, at 709.

    "[The District Court] found that the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency," at 682

    "The District Court also determined that a reasonable observer, mindful of the history, purpose, and context, would not conclude that this passive monument conveyed the message that the State was seeking to endorse religion." at 682

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Miscellaneous

    [p 4 an 5] The Constitution creates a secular government and CJ Rehnquist uses a false set of choices to justify the misdeeds of the Court in permitting excessive enganglement with religion by government. "Two faces" - Lemon v. Kurtzman, 403 U.S. 602 (1971) compare with Marsh v. Chambers, 463 U.S. 783 (1983). These divergent caes precisely show the problem with the Court. Lemon is a rigorus test, when property applied, would hold virtually every government involvement with religion while Marsh demonstrates that if the majority favors religion, there is no obstacle to end run around the Establishment Clause, its called a simple majority of the Court. This is the very tyranny of the majority (because there is a lack of intellectual honesty) -- whether it be in Congress or the Supreme Court.

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The Fatal Blow By Justice Breyer

    Indirectly saying that the 10Cs are not religious - rather they have a historical message p. 701 i.e., a secular message or civic morality

    none of the dangers p. 704. Mere shadow of the danger. p. 704 OK for minority sects and the nonreligious to get religion in their face

    Van Orden was a hard case - have to use “legal judgment” p. 701

    “civic morality” p. 701

    No complaint for 40 years to two generations was too long for Justice Breyer. p. 702 and 704.

    That the Austin Decalog hadn’t been challenged for 40 years should not be construed to mean that it is non-divisive [discord].

1. Mercier v. Fraternal Order of Eagles, 395 F.3d 693 (7th Cir. 2005)
2. ACLU Nebraska Foundation v. Plattsmouth, 358 F.3d 1020 (8th Cir. 2004)
3. Adland v. Russ, 307 F.3d 471 (6th Cir. 2002)
4. Summum v. Ogden, 297 F.3d 995 (10th Cir. 2002)
5. Books v. Elkhart, 235 F.3d 292 (7th Cir. 2000)
6. State v. Freedom From Religion Foundation, Inc., 898 P.2d 1013 (Colo.1995)
7. Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir. 1973)

Stevens, FN19, at 721.

    Mixed but primarily nonreligious purpose. p. 703

    Texas state capitol grounds not “sacred” p. 702. That had never been a test of the Court

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Justice Scalia's Concurring Opinion

    The only thing good about Justice Scalia's concurring opinion is that it is one paragraph long. Unfortunately, he blew that compliment by stating: "there is nothing unconstitutional in a State's favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments." Justice Scalia must be totally blind to make such a remark that a Ten Commandments monolith isn't proselytizing and must have missed the civics lesson about the separation of church and state. p. 692

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Justice Thomas's Concurring Opinion

    The author has to give Justice Thomas credit for his stubborn his resistence to precedent and his inventive "originalism." Lacking in followers, though, he resorts to quoting himself. What better source!

The Fraud Of Declaring Religious Symbols To Have Little Religious Significance

    Members of this Court have concluded that the term or symbol . . . has no religious meaning by virtue of its ubquity or ceremonial invocation>” p. 695. BUT GOD HAS RELIGIOUS SIGNIFICANCE. Suggests that some of the other members of the Court are contradicting what they know. But note that CJ Rehnquist talked about dual significance. Etc. He said that the 10Cs had religious significance. But not enough to matter.

    The KEY point here is that Thomas is saying “ repetition does not deprive religious words or symbols of their traditional meaning.” p. 696. No Zerox affect.

    The author finds himself in a strange position agreeing with Justice Thomas, continuing from the previous quote: "Yet even as it does so, the Court's precedent attempts to avoid declaring all religious symbols and words of longstanding tradition unconstitutional, by counterfactually declaring them of little religious significance." [P10]

    Similarly, he states: "in a seeming attempt to balance out its willingness to consider any acknowledgment of religion an establishment, in other cases Members of this Court have concluded that the term or symbol at issue has no religions meaning by virtue of its ubiquity or rote ceremonial invocation." [Justice Thomas cites County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 630-631 (1989), (O'Connor, J. concurring) and Lynch v. Donnelly, 465 U.S. 668, 716-717 (1984 (Brennan, J., dissenting).]

Stevens, dissenting, FN35 at 735: “FN35. Justice THOMAS contends that the Establishment Clause cannot include such a neutrality principle because the Clause reaches only the governmental coercion of individual belief or disbelief. Ante, at 2865 (concurring opinion). In my view, although actual religious coercion is undoubtedly forbidden by the Establishment Clause, that cannot be the full extent of the provision's reach. Jefferson's “wall” metaphor and his refusal to issue Thanksgiving proclamations, see supra, at 2884, would have been nonsensical if the Clause reached only direct coercion. Further, under the “coercion” view, the Establishment Clause would amount to little more than a replica of our compelled speech doctrine, see, e.g., West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), with a religious flavor.”

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Incorporation Of The Establishment Clause Into The 14th Amendment

    EC not incorporated p. 693

    Using the due process clause of the 14th Amendment -- " . . . " -- the Supreme Court in [case] "incorporated" (i.e., applied to the states) the right bestowed by the Establishment Clause of the First Amendment ("Congress shall make no law respecting an establishment of religion"). For more information on this subject, visit Wikipedia at [link]. No incorporation of rights has been ever been reversed and Justice Thomas' backlash should not be taken seriously.

"Original Intent" Of The Founders

    Justice Thomas then justifies the holding in Van Orden with his view of the "original inent" of the First Amendment. The author has studied James Madison's orginal proposal in 1789, the various wordings of the propsal as it worked its way through the House, Senate and House-Senate confrence committee. The final wording, as quoted in the preceding paragraph was the work of a political compromise. The lack of conteporaneous accounts of what the committee meant or of Congress as a whole makes it impossible to say with any degree of certainity what the orginal intent was.

    Personally, and with bias towards the namesakes of the Jefferson Madison Center, the author has adopted the view of James Madison who was the primary mover of the Bill of Rights, and the religion clauses in particular, and Thomas Jefferson, Madison's mentor -- whose letter to the Danbury Baptist Association in 1802 coined the phrase "wall of separation of church and state." [verivy wording - NOT EXACT]

    Justice Thomas's view that "The Framers understood an establishment 'necessarily [to] involve actual legal coercion' " is, naturally, supported by his quoting his concurring opinion in Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 52 (2004) and Justice Scalia's dissenting opinion in Lee v. Weisman, 505 U.S. 577, 640 (1992).

    If its not coercive, it’s not an EC violation. p. 693-694. Mere “offensiveness” is not enough. p. 694

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Injury

    non adherent (of Christianity) - more sensitive than a reasonable observer

    The requirement that a plaintiff suffer a cognizable "injury" is one the most obvious, yet baffling legal concepts. The source of the requirement is Article 3 of the Constitution where the jurisdiction of the courts extend to cases and controversies. Essentially, if there is no injury, then there is no case or controversy.

    While this makes sense in the abstract, its practical application gets mired in subjectivity. Van Orden is a good example, at least with respect to Justice Thomas. Justice Thomas would deny Van Orden, the plaintiff (petitioner at the Supreme Court level), arguing that he was sufficiently injured. "The only injury to him is that he takes offense at seeing the monument as he passes it on the way to the Texas Supreme Court Library. He need not stop to read it or even to look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and does not violate the Establishment Clause." (Emphasis added.) [P10]

    Justise Thomas is cleary insenstive to minority rights when he states "The Court's precedent elevates the trivial to the proverbial 'federal case,' by making benign signs and postings subject to challenge." [P10]

The Blessing

    There is very little consolation that the dissenters were one vote short of a majority, or the principle of church-state separation prevailed in McCreary County v. ACLU of Ky..

    And so it came to pass that on Black Monday, June 27, 2005, with Justice Breyer casting the decisive vote in his concurring opinion, joining in the result with Chief Justice Rehnquist and Justices Scalia, Thomas and Kennedy, the Supreme Court of the United States blessed the Ten Commandments tombsone on the Texas state capitol grounds.

    The bizare result – that is, notwithstanding the prohibition of the First Amendment against an establishment of religion – can only be explained by the spell of Christianity upon the majority members of the Court.