Marc Levin
Wednesday, July 25, 2002

On the heels of the reviled decision by the U.S. Court of Appeals for the 9th Circuit striking down the Pledge of Allegiance, an Austin judge will soon decide whether the presence of the Ten Commandments on the grounds of the State Capitol also unconstitutionally establishes religion.

The suit was filed pro se by Austin attorney Thomas Van Orden and will be heard on July 29 by Senior U.S. District Judge Harry Hudspeth.

Defendants named in Van Orden's complaint include Gov. Rick Perry, Acting Lt. Gov. Bill Ratliff and Texas House Speaker Pete Laney in their capacities as officers of the State Preservation Board, which operates the Capitol and its grounds. The attorney general's office is defending the state in this matter.

A tablet-shaped granite display of the Ten Commandments, the text of which appears at the end of this article, is located on the northwest side of the Capitol. The Fraternal Order of Eagles provided the monument, along with similar displays on public grounds throughout the country. The Texas Legislature approved its installation in 1961.

Interestingly, the Fraternal Order of Eagles (www.foe.com), which still exists today, is a community service group, with no religious mission or affiliation. The group is best known for starting Mother's Day, lobbying for the creation of Social Security, and having Teddy and Franklin Roosevelt as former members.

The Eagles' effort in the '50s and '60s to create Ten Commandments monuments in public places was part of their broader effort to reduce child abuse by promoting morality.

Van Orden's complaint alleges that the Commandments are "an endorsement by the State of Texas of religion and of Christianity and Judaism in particular" and that they convey the message that "those who do not embrace religion are second-class citizens and set apart." In the complaint, Van Orden terms the Commandments a "spiritual affront." He also claims that "in his normal routine, he comes into frequent unwelcome, direct and personal contact with the Ten Commandments monument."

However, Kelly Shackelford, chief legal counsel of the Plano-based Liberty Legal Institute, argues: "There is no Constitutional right to censor religious history or artifacts because some citizen feels offended. Whether Mr. Van Orden likes it or not, the Ten Commandments are a key legal document upon which our system of laws were based. Eradicating religious documents and history is not compelled by our Constitution; it is in fact prohibited, as it would be censorship and religious discrimination. This is a sad case and should fail."

The only Supreme Court precedent concerning the Ten Commandments is the 1980 decision of Stone v. Graham. In that case a citizen alleged that a Kentucky state law requiring the Ten Commandments to be posted on the wall in every public classroom violated the Establishment Clause.

The Legislature had ordered the placement of a notation, in small print below the last commandment, stating, "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States."

Nevertheless, the Court struck down the Kentucky law, finding that it did not have a secular purpose. Under the three-pronged Lemon test, first promulgated by the Supreme Court in the 1971 case Lemon v. Kurtzman, a statute must have a secular legislative purpose, neither advance nor inhibit religion as its principal or primary effect, and not foster an excessive government entanglement with religion.

The Court rejected out of hand the claim of the school district that the posting of the Commandments serves secular purposes such as "the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature."

The Court also disregarded the disclaimer in assuming that, because the Ten Commandments are a religious text, their posting cannot possibly have a secular purpose. There are several reasons why the result in Stone may not control in the current case.

First, the context is much different. Instead of a state law requiring the posting of the Commandments in all classrooms, the current case involves an isolated monument on the grounds of the Capitol. While not explicitly mentioned in Stone, the Court in many school prayer cases has emphasized the impressionability of children, implying that there may be a lower threshold for an establishment of religion where children are captive audiences, such as in a classroom or school graduation.

Another potentially important difference is that the posting of the Commandments in every classroom is simply more prominent and pervasive than one small display on the vast grounds of the Capitol.

This difference of context may mean that Van Orden does not have standing to bring this suit. In 1995, Alabama Judge Roy Moore gained national attention for refusing to remove the Ten Commandments from his courtroom. However, a suit brought against Moore by the ACLU, the Alabama Freethought Association and citizens within Moore's jurisdiction was dismissed because the court found the plaintiffs lacked standing.

In order to have standing under the U.S. Constitution to bring a suit, a plaintiff must demonstrate: (1) an injury in fact that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) causal relationship between the injury and the challenged conduct; and (3) a likelihood that the injury will be redressed by a favorable ruling that is not too speculative. The Alabama court decided standing was lacking because the plaintiffs alleged injury was merely hypothetical, as they were not actually forced to appear in Judge Moore's courtroom.

While Van Orden has certainly encountered the Ten Commandments monument at the Capitol, the allegation in his complaint that his use of the Capitol, the Texas Supreme Court, and other state buildings in the area "necessitates that he come into unwelcome, direct and personal contact with the Ten Commandments monument" is highly questionable. The monument takes up a miniscule part of the grounds and is not positioned directly in front of the entrance to the Capitol or any other building. In fact, it is likely that the vast majority of Texans who have visited the Capitol or other state buildings in the area have never even noticed the monument.

Finally, the only justices on the current Court who participated in the Stone case are Justice John Paul Stevens, who sided with the majority, and current Chief Justice William Rehnquist, who dissented. Therefore, it is not clear that the current, somewhat more conservative Supreme Court would follow Stone.

Although the only Supreme Court case on this subject concerned the posting of the Ten Commandments in all school classrooms, there have been a handful of conflicting lower court decisions involving Ten Commandments monuments on public property. These decisions have all come from circuits other than the Fifth Circuit, which has jurisdiction over Texas, Louisiana and Mississippi, or the supreme courts of other states, so they are only persuasive, not binding, authorities in Texas.

A 1995 decision by the Colorado Supreme Court in Freedom of Religion Foundation v. Romer upheld a Ten Commandments monument in a public park. The court relied on the "endorsement test," which U.S. Supreme Court Justice Sandra Day O'Connor has often employed instead of the Lemon test. The Colorado Supreme Court concluded that the monument does not endorse a particular religion or exclude members of one religion from a public benefit.

In the 1973 case Anderson v. Salt Lake County, the U.S. Court of Appeals for the 10th Circuit held constitutional the presence of a Ten Commandments monument erected by the Fraternal Order of Eagles on county property. The court emphasized the secular relevance of the principles embodied in the Ten Commandments and their influence upon the development of the American legal system.

On the other hand, several courts have struck down Ten Commandments displays similar to the one at the Texas Capitol. In July 2001, the 7th Circuit Court of Appeals held unconstitutional a tablet-shaped monument on the grounds of the Indiana State Capitol that was also given to the state by the Fraternal Order of Eagles. The court attributed special import to the tablet shape of the monument in reaching its conclusion that a reasonable person would perceive the monument as a state endorsement of religion.

In the 2000 case of Books v. City of Elkhart, Indiana, the 7th Circuit also struck down a public display of the Ten Commandments. Since Wisconsin is in the 7th Circuit, the city of Milwaukee was forced to remove its Ten Commandments monument following this decision.

A critical issue could be how the court defines the context in which the Ten Commandments monument at the Texas Capitol appears. In the 1989 case of County of Allegheny v. American Civil Liberties Union, the Supreme Court held that the Establishment Clause prohibited a crèche display outside a state courthouse but permitted a menorah display, because the menorah was next to a Christmas tree, which the Court viewed as a secular symbol.

While the Ten Commandments monument at the Capitol is not immediately adjacent to any other display, there are numerous historical, cultural, political and legal fixtures on the Capitol grounds and within the Capitol itself. Therefore, it can be argued that the Ten Commandments monument is part of a broader educational exhibit that chronicles important people, events and ideas in Texas history and that the Commandments are properly included because of their influence on the development of Texas law and the values of the vast majority of Texans.

Van Orden told the Review that the state offered to install a placard next to the Ten Commandments display indicating that their presence is for historical and educational reasons, not as an endorsement of religion. However, Van Orden declined this offer.

The outcome of this case is very difficult to predict, partly because of the confusion that has resulted from the Supreme Court's muddled Establishment Clause doctrine. In addition to the Lemon test, which has recently fallen out of favor but never been overturned, and O'Connor's endorsement test, the Court applied a coercion test, often associated with Justice Anthony Kennedy in the 1992 case Lee v. Wiseman. Here, the Court struck down a nondenominational public school commencement benediction offered by a rabbi as being coercive.

Therefore, it is not even clear what test a district judge such as Judge Hudspeth should use in the present case.

While this case is unlikely to prompt a re-evaluation of the proper applicability of the federal Constitution, and particularly the Establishment Clause, to the states, any fair examination of the Constitution's text and history suggests that both the 9th Circuit decision regarding the pledge and previous court decisions striking down the Ten Commandments are at odds with what the founding fathers intended when they drafted the Establishment Clause.

The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. ..." Thus, the text is clear that only Congress, not state legislatures, is prohibited from establishing a religion.

The historical record is equally clear that this is what the framers, and perhaps more importantly the state legislatures which ratified the Constitution, intended. After all, according to the article "The Ten Commandments and the Ten Amendments: A Case Study in Religious Freedom in Alabama" by William Gray in the Winter 1998 issue of the Alabama Law Review, at least five states had state churches in 1787: the Anglican Church was the state church in Virginia until 1786; the "Christian Protestant Religion" was the state religion in South Carolina until 1790; and the Congregational Church was the state church in Connecticut until 1818, in New Hampshire until 1819, and in Massachusetts until 1833.

Massachusetts was the last state to disestablish its state church, and did not do so until 44 years after the Establishment Clause was drafted by Congress.

Moreover, 49 of the 50 states – all except Rhode Island – had religious tests for office when the Constitution was ratified by the states. Certainly, if the understanding at the time of the Constitution was that the Establishment Clause applied to the states, there would have been much discussion during the ratification process about the effect of the Clause on these pervasive state laws, but there was no such debate because it was universally understood that the Establishment Clause only constrained Congress, thereby preventing the creation of a federal church that would interfere with state churches.

In the 1925 case of Gitlow v. New York, the Supreme Court concluded for the first time that the First Amendment was "incorporated" against the states as a result of the post-Civil War constitutional amendments. While the 15th Amendment has been properly construed as simply outlawing slavery, the Court used the broader language of the 14th Amendment to perpetrate the fraud of incorporation.

Since 1925, the Court has held that the majority of the first eight amendments apply to the states (the Second Amendment, of course, has been held not to be incorporated) by virtue of the 14th Amendment's Due Process Clause, which prohibits states from "depriving any person of life, liberty, or property, without due process of law."

The interpretation of this phrase that is most logical and most consistent with the congressional intent as manifested by the debates in Congress is that "due process" refers to procedure, meaning that the states may impose such deprivations so long as normal and fair procedures are followed, such as trial by jury.

The oxymoron of "substantive due process" led to infamous Supreme Court decisions striking down New Deal legislation, although some were properly struck down pursuant to the Freedom of Contract Clause that explicitly applies to the states. While Franklin Roosevelt sounded the death knell for substantive due process concerning economic rights through his threat of "court-packing," 90 percent of the Supreme Court's modern decisions involve cases concerning state law that are federal constitutional matters only because most individual rights in the Bill of Rights have been incorporated against the states.

The purpose of the Due Process Clause, along with the Equal Protection Clause and Privileges and Immunities Clause of the 14th Amendment, was to make sure that emancipated slaves were not singled out for discriminatory and arbitrary treatment following the Civil War. As Gray points out, "Certainly, if the Fourteenth Amendment was intended to abolish the states' abilities to make their own policies with regard to the subject matter covered in the first eight amendments, then surely, at the very least, the states would have voiced some concern over the abolition of their power. History, however, contains no expressions of concern by the states."

Gray continues: "Indeed, had the fourteenth amendment been understood to incorporate the federal Bill of Rights against the states in many instances states would have been required to make radical changes. For instance, it was frequent in many states for people to be prosecuted for felonies without an indictment from a grand jury. It was equally common for a jury of less than twelve people to sit in judgment in a felony prosecution. Some states failed to preserve the right to a jury trial and suits at common law where the amount in controversy exceeded $20.00. The State of New Hampshire ratified the Fourteenth Amendment on July 7, 1866, despite the fact that its state constitution provided that "The people of this State have a right to empower, and do hereby fully empower the legislature to authorize, from time to time, the several towns, parishes, bodies corporate or religious societies, within this State, to make adequate provision, at their own expense, for the support and maintenance of public Protestant teachers of piety, religion and morality."

Gray notes: "Similar situations existed in North Carolina and Tennessee. North Carolina ratified the Fourteenth Amendment on July 4, 1868, despite the fact that its state constitution prohibited persons 'who shall deny the being of Almighty God' from holding public office. Tennessee ratified the Fourteenth Amendment on July 19, 1866, even though its constitution prohibited office holding by 'any person who denies the being of God, or a future state of rewards and punishments. ...' If the Fourteenth Amendment had been understood to apply the Establishment Clause against the states, then it seems likely that the people of these states would have expressed some concern as to the invalidation of their state constitution."

Unfortunately, it is virtually inconceivable that the Court will ever revisit its fraudulent Incorporation Doctrine. However, the historical connections between government and religion may still be relevant to current jurisprudence. In the 1983 Supreme Court case Marsh v. Chambers, the Court upheld the Nebraska Legislature's practice of beginning each of its sessions with a prayer offered by a Christian chaplain who is paid with public funds.

Gray explains that the Court in Marsh found no violation of the Establishment Clause, holding that the practice of opening sessions of Congress with prayer had continued uninterrupted since the First Congress drafted the First Amendment almost 200 years before.

The Court ruled that, while historical patterns alone cannot justify contemporary violations of constitutional guarantees, historical evidence in that case shed light not only on what the drafters of the First Amendment intended the Establishment Clause to mean, but also on how they thought the clause applied to the chaplaincy practice authorized by that Congress. The Court found that the practice had become part of the fabric of our society and that it was clear that invoking divine guidance on a public body entrusted with making law was not a violation of the Establishment Clause, but "simply a tolerable acknowledgment of beliefs widely held among the people of this country."

The Court has also appealed to the "historical fabric of our society" in explaining why "In God We Trust" on coins is not a violation of the Establishment Clause, even though it arguably fails the Endorsement Test. It is on this basis that the recent Pledge of Allegiance ruling may be overturned.

Likewise, a strong argument can be made that the Ten Commandments are similarly rooted in American society. Yet the need to carve out such an ad hoc exception from current Establishment Clause doctrine to protect such traditional practices indicates just how far the Court has strayed from the textual language, original intent and historical precedent America's founding fathers enshrined in the Constitution.

1. I am the Lord thy God, thou shalt have no other gods before me;

2. Thou shalt not make unto thee any graven image;

3. Thou shalt not take the name of the Lord thy God in vain;

4. Remember the Sabbath day to keep it holy;

5. Honor thy father and thy mother;

6. Thou shalt not kill;

7. Thou shalt not commit adultery;

8. Thou shalt not steal;

9. Thou shalt not bear false witness;

10. Thou shalt not covet.