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Van Orden v. Perry, 545 U.S. 677, is a 2005 Supreme Court split (5-4) decison holding that a 6-foot tall Ten Commandments monolith on the Texas state capitol grounds, that was donated by the Fraternal Order of Eagles, does not offend the Establishment Clause of the First Amendment.
The plurality of opinion was written by Chief Justice Rehnquist and joined by Justices Scalia, Kennedy and Thomas, is surely one of the worst Supreme Court opinions of all time for its lack of truthfulness for the reasons set forth below. In addition, Justice Breyer wrote an equally troubling "time and number cure all" concurring opinion that gave Chief Justice Rehnquist a majority of the Court.
Falsehoods in Chief Justice Rehnquist's Plurality Opinion
The Eagles are a Religious Organization as Much as It is a Social, Civic or Patriotic Organization
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.
Two Faces
[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.
Inalienable Rights Are Not 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.
Our Institutions Presuppose A Supreme Being
[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.
An Unbroken History Of Official Acknowledgement
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".
Lemon Test Unworkable
Chief Justice Rehnquist employs the classic "when the test doesn't give you the result you want, say its a defective test" justification.
Under the Lemon Test, established in Lemon v. Kurtzman, 403 U.S. 602 (1971), if any of the 3 prongs below are violated, the government's action will be deemed unconstitutional under the Establishment Clause:
- The government's action must have a secular purpose.
- The government's action must not have the primary effect of either advancing or inhibiting religion.
- 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.
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.
The Monument Has Religious Significance
[P7] 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.
Ten Commandment Monoliths are "Passive"
[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.
[insert pic of Austin monolith]
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.
The Ten Commandments Are Not Part Of Texas' Political And Legal History
Justice Scalia's Concurring Opinion
[P8]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.
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!
Incorporation Of The Establishment Clause Into The 14th Amendment
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).
Injury
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 Fraud Of Declaring Religious Symbols To Have Little Religious Significance
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).]
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.
Justice Breyer's Concurring Opinion
[COMING SOON]
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