The Ten Commandments Scandal

by Robert V. Ritter [2]

November 2, 2008

   I sincerely believe that our Founders intended the First Amendment’s prohibition against Congress passing laws “respecting an establishment of religion” [3] to guarantee Americans freedom from government sponsored religion. [4]

   On November 12, 2008, the Supreme Court will hear oral arguments in the case of Pleasant Grove City v. Summum. [5] Summum’s attorneys will be arguing this as a free speech case because the 10th Circuit U.S. Court of Appeals held that city parks are public forums and that Pleasant Grove's denial of Summum’s request to put a monument of its Seven Aphorisms inthe city’s Pioneer Park — notwithstanding the fact that the city permitted the Fraternal Order of Eagles (“Eagles” or “F.O.E.”) to put a Ten Commandments monolith in the same park — constituted viewpoint discrimination in violation of Summum’s the Free Speech rights. [6]

   Here’s the problem: The Court’s jurisprudence with respect to Establishment Clause cases in general, and religious symbols in particular, has been in a state of chaos since the Court’s Van Orden and McCreary County v. ACLU of Kentucky decisions handed down on June 27, 2005. [7] It is the view of many that a number of justices on the Court are not faithful to the principle of separation of church and state. In deed, Justices Scalia and Thomas — employing what they view as the “original intent” of the Founders — deny that the principle of separation of church and state is embodied in the First Amendment. Instead, they would permit government to sponsor religion (i.e., Christianity) generally.

   Here are connections between Summum and Van Orden: Both involve a Ten Commandments monolith donated by the Eagles, both are located on government property where there are other monuments and markers and both monoliths have been there more than 30 years. [8] In simplest terms, Summum is arguing that Pleasant Grove engaged in impermissible viewpoint discrimination when accepted a religious monument of one faith and rejected a religious monument of another faith.

   And here’s the kicker: Summum would never have asked to put a monument of its own principles in Pleasant Grove’s Pioneer Park had Pleasant Grove not accepted (or later removed) an Eagles“ Ten Commandments monument donated by the Eagles. [9] Summum’s attorney, who also represented the Freedom From Religion Foundation (“FFRF”) in FFRF v. City of Ogden, as well as Summum in Summum v. City of Ogden, wrote the City of Ogden on behalf of FFRF on November 20, 1998, requesting that Ogden removed its Ten Commandments monolith. Separately, the same attorney, on behalf of Summum, asked the city for approval to put a monument of Summums’ principles on Ogden’s Municipal Grounds. It was only after Ogden refused, did Summum file suit against Ogden in Summum v. City of Ogden, asserting that it had a free speech right to since a Ten Commandment’s monolith was already in the park. [10]

   The ultimate prayer for relief would request the Supreme Court to postpone consideration of Summum until the Court has revisited Van Orden in light of new evidence concerning the Eagles and Judge E.J. Ruegemer.

   It’s a good bet that this won’t happen. In stead, on behalf of seven secular and religious nonprofits, as I asked the Supreme Court on June 23, 2008, to reverse the 10th Circuit U.S. Court of Appeal’s decision in favor of Summum the (holding that city parks are public forums for donated permanent monuments and Summum has a free speech right to put a monument of its own religious principles in the park), and remand Summum to the lower courts for briefing and argument on whether the presence of a Decalog in Pleasant Grove City’s Pioneer Park violates the Establishment Clause of the First Amendment.

   And why should the Supreme Court reconsider whether Ten Commandment monoliths on public property violate the Establishment Clause? The simple answer is that it is the interests of Justice, that is, faithfulness to the Constitution.

   A number of old documents have come to my attention, as well as an explaination of what is really on the monoliths, that if this information had been introduced into evidence at the Van Orden trial, there is a reasonable likelihood that the outcome would have been profoundly different. This information indicates that the Eagles' monoliths are more religious than heretofore thought, that the Eagles is a religious organization and, I believe, proves that the primary purpose of the Eagles' Ten Commandments Program was to promote religion.

   In addition, I have reason to believe that certain Christian Right law firms, including the one representing the Eagles in Van Orden, were aware of this some of information and chose not to disclose it in the hope that the Supreme Court would affirm the Fifth Circuit's decision in Van Orden.

   So sit back, enjoy the story and YOU be the JUDGE.

Bob Ritter

P.S. Please send your comments to me at Bob@jmcenter.org. High resolution digital photographs of Eagles monoliths and personal stories about the Eagles Ten Commandments program are welcome.

ENDNOTES:

1. "Opposition to state sponsored posting of the Ten Commandments does not arise out of hostility to the timeless values conveyed in Exodus 20:1-17. Rather, it arises out of a profound respect for the diversity of religions in America today — those that embrace Biblical law and those that derive their ethics and values from other texts. By adhering to the principle and spirit of separation of church and state we best fulfill the Constitution's legacy of religious liberty for all Americans." Anti-Defamation League, "The Ten Commandments Controversy: A First Amendment Perspective," revised 2005, at http://www.adl.org/10comm/Prohibitions.asp (visitied on Oct. 9, 2008).
2. Robert V. Ritter is an attorney practicing in the area of church-state law for a secular nonprofit located in Washington, D.C. He is a member of the U.S. Supreme Court bar and is counsel of record of a friend of the court brief in Pleasant Grove City v. Summum.
3. "Congress shall make no law respecting an establishment of religion ..." U.S. Const., amend. I. This clause is commonly referred to as the Establishment Clause.
4. The constitutional principle eminating from this clause is more commonly referred to as “separation of church and state.” based on Thomas Jefferson’s 1802 letter to the Danbury Baptist Association.
5. Pleasant Grove City, Utah v. Summum (No. 07-665). Duchesne City, Utah v. Summum (No. 07-690) is also before the Supreme Court this term and is on hold until the Court decides Pleasant Grove City v. Summum. The two cases are virtually identical — Summum had requested approval to put its own monument in Pleasant Grove City and Duchesne City parks and both cities denied Summum's requests notwithstanding the fact that they had permitted the Eagles to put Ten Commandment monoliths in their parks.
6. Summum v. City of Pleasant Grove, Utah (10th Cir. ).
7. Van Orden v. Perry, 545 U.S. 677 (2005), held in a 5-4 decision that a Ten Commandments monolith on the Texas state capitol grounds, and donated by the Fraternal Order of Eagle to the state in 1961, did not violate the Establishment Clause. See Chapter 9 for an analysis of the Van Orden decision. McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005), a companion case of Van Orden, held in a 5-4 decision that a Ten Commandments plaque in the McCreary County court house violated the Establishment Clause.
8. The Eagles donated the Austin, Texas Decalog in 1961 and the Pleasant Grove City, Utah Decalog in 1971.
9. I make this claim because — public forum issues aside — Summum would not have had a basis for asserting a free speech had Ogden or Pleasant not accept Eagles Ten Commandment monoliths.
10. Summum v. City of Ogden, 152 F.Supp.2d 1286 (D UT, Jan. 31, 2001) held that the city’s refusal to accept Summum’s monument did not violate the First Amendment’s free speech, establishment or free exercise clauses. On appeal in Summum v. City of Ogden, 297 F.3d 995 (10th Cir., July 19, 2002), the court affirmed the district court ruling in so far as that ruling granted summary judgment in favor of the City of Ogden as to Summum’s Establishment Clause claim and reversed the district court ruling in so far as that ruling granted summary judgment in favor of the City of Ogden on Summum’s Free Speech Clause claim.