Chapter 1 - Introduction

February 28, 2009

Eagles Tombstone in Austin, Tx.

   The ratification of the Constitution of the United States of America in 1788 was meant by our Founders to be more than an experiment with liberty, it was meant to be Liberty itself. And thus the Bill of Rights [3] filled a void in the Constitution — affirmatively stating that individual rights are fundamental in our system of governance AND that government is prohibited from abriding them.

   One of these liberties, “freedom of religion,” is not literally mention in either the Constitution or the Bill of Rights. Yet it is unquestionable that the first two of the First Amendment’s prohibitions — “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof” — were meant to embody that freedom. Similarly, while Thomas Jefferson’s metaphor “wall of separation between church and state" is not literally in the First Amendment, the metaphor accurately expresses what is meant by the Establishment Clause. [4]

   Sadly, more than 200 years after the adoption of the Bill of Rights, the meaning of the Establishment Clause is still being fiercely disputed. One faction accepts America’s rich pluralism and supports individual liberty and the principle of separation of church and state. [5] The opposing faction — the Christian Right — rejects pluralism, individual liberty for all and the principle of separation of church and state, and seeks to convert the United States into a Christian Nation — one that it has never been.

   This culture war is currently playing out in a high stakes poker game before the federal courts. On March 23, 2009, the Supreme Court held in a unanimous decision in Pleasant Grove City v. Summum holding that the “speech” of an Eagles donated Ten Commandments tombstone in Pleasant Grove City, Utah is “government speech” (and not the “private speech“ on the tombstone's donor) [6] — just as I had argued in my amicus brief in the case. The case will now be sent back to the District Court, where Summum’s attorneys have said that they will amend the complaint to include a federal Establishment Clause claim. Here comes Van Orden II and hopefully, this time, with the result consistent with the Constitution.

   Here’s the problem: The Court’s jurisprudence with respect to Establishment Clause cases in general, and religious symbols on public property in particular, has been in a state of chaos since the Court’s Van Orden [7] and McCreary County v. ACLU of Kentucky [8] decisions handed down in 2005. The five justices forming the majority in Van Orden — Chief Justice Rehnquist and Justices Scalia, Thomas, Kennedy and Breyer — as mentioned above, were not faithful to the principle of separation of church and state. [9] Of special note, Justice Scalia is of the view that it is permissible for government to favor religion generally and monotheistic religions in particular (i.e., Judaism, Christianity and Islam — Christianity preferred) [10], while Justice Thomas rejects applying the Establishment Clause to the states via the Fourteenth Amendment (known as “incorporation”). [11]

   Here are the similarities between Summum and Van Orden: Both involve a Ten Commandments tombstone donated by the Eagles. Both tombstones are located on government property where there are other monuments and markers. And both tombstones have been there more than 30 years.

   Here’s the kicker: Summum would never have asked Pleasant Grove to put a monument of its own principles in Pioneer Park had the city not accepted (or later removed) a Ten Commandments tombstone donated by the Eagles. Summum’s trial attorney, Brian Barnard, wrote Pleasant Grove City on behalf of another client in Society of Separationists v. Pleasant Grove City requesting that the city removed its Eagles Ten Commandments tombstone. [12]

   And here's what is likely to happen: Tho I don’t have a crystal ball, it’s inconceivable that the Supreme Court would force cities to accept and display monuments that they do not want, thereby turning our city parks into junk yards for donated monuments. Instead, the Court is likely to reverse the 10th Circuit U.S. Court of Appeal’s decision in favor of Summum [13], and hold that municipal parks are not “public forums” for donated permanent monuments. It will also return Summum to the lower courts for further proceedings.

   Based on statements made by Summum’s attorneys, Mr. Barnard and Ms. Harris, to the press and me following oral arguments on November 12, 2008, Summum will likely amend its complaint after the case is returned to the District Court to include a federal Establishment Clause claim that the city’s display of the Eagles Ten Commandments tombstone in Pioneer Park violates the First Amendment. I would not be surprised to see Summum II before the Supreme Court in 2011 or 2012.

   And why should the Supreme Court reconsider whether Ten Commandment tombstones on public property violate the Establishment Clause? The simple answer is that the Court needs to regain its legal compass. As the standard bearers of the Constitution, the justices of the Supreme Court of the United States need to have their decisions pointing in the right direction — towards faithfulness to the Establishment Clause. And to do this, it is imperative that the Court overturn Van Orden.

   A number of old documents have come to my attention [14], as well as, an explanation of the significance of the iconography on the Eagles tombstones. [15] It is my contention that if this information had been introduced into evidence at the Van Orden or other trials challenging Eagles Ten Commandments tombstones on public property, there is a reasonable likelihood that the outcomes would have been profoundly different. This information indicates that the Eagles tombstones are more religious than heretofore thought, that the Fraternal Order of Eagles is a religious organization and, I believe, proves that the primary purpose of the Eagles Ten Commandments Program of donating the tombstones, and the primary purpose of the cities and states accepting and displaying them, was religious.

   The ultimate goals of this Essay are three fold. My first objective is to inform the general public about the Ten Commandments Scandal — how certain justices on the highest court in our nation have, in essence, permitted their personal religion to be favored by our federal, state and local governments.

My second objective is to provide the research for Summum’s attorneys to prove that Pleasant Grove failed both the “religious purpose” and “religious effect” prongs of the Lemon test [16] and, thereby, help in proving an Establishment Clause violation when Summum is returned to the District Court. I would be interested in hearing from attorneys on how the information presented in this Essay could be used to “encourage” the Supreme Court to vacate its decision in Van Orden.

   And my third objective is to expose certain Christian Right law firms (see Chapter 12), including the one representing the Eagles in Van Orden, who were aware (or should have been aware) of this discrediting 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.

Bob Ritter

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

ENDNOTES:

1. Van Orden v. Perry, 545 U.S. 677 (2005). The six-feet high tombstone in the picture was donated by the Fraternal Order of Eagles to the state of Texas in 1971 and was the object of a lawsuit brought by Thomas Van Orden.
2. The Supreme Court was also not faithful to the Constitution in another case with religious overtones. In Gonzales v. Carhart, 550 U.S. 124 (2007) and its companion case Gonzales v. Planned Parenthood, the Court’s five “Catholic justices” — Chief Justice Roberts and Justices Scalia, Thomas, Kennedy and Alito — obeyed an edict of the Roman Catholic Church against abortion and upheld the federal Partial-Birth Abortion Ban Act of 2003.
3. The Bill of Rights, courtesy of the National Archives, at http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html.
4. The clause — "Congress shall make no law respecting an establishment of religion ..." (U.S. Const., Amend. I) — is commonly referred to as the Establishment Clause. The constitutional principle emanating from this clause is more commonly referred to as “separation of church and state” in reference to Thomas Jefferson’s 1802 letter to the Danbury Baptist Association. See Chapter 2 - First Amendment Prohibition Against Government Promoting Religion for more information on this subject.
5. The more ardent supporters of this faction, myself included, are sometimes referred to as “separationists”.
6. Pleasant Grove City v. Summum (No. 07-665) ___ U.S. ___ (Feb. 23, 2009).
7. See Chapter 9 for an analysis of Van Orden v. Perry
8. McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005) was a companion case of Van Orden v. Perry. The Supreme Court came to the opposite conclusion of Van Orden, holding 5-4 that the display of Ten Commandments plaques in two Kentucky courthouses violated the Establishment Clause. Justice Breyer switched sides, and voted with Justices Stevens, O'Connor, Ginsburg and Souter.
9. Chief Justice William Hubbs Rehnquist, wrote the plurality opinion joined by Justices Scalia, Thomas and Kennedy. Justice Breyer wrote a separate concurring opinion.
      The Chief Justice died on September 3, 2005, less than three months after the Van Orden was handed down.
10. Justice Scalia dissenting in McCreary County v. ACLU of Kentucky, 545 U.S. 844, 885-894, 125 S.Ct. 2722, 2748-2753 (2005), section IA.
11. Justice Thomas, concurring in the judgment of Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 49 (2004), rejects the Court’s “incorporation” of the Establishment Clause in Everson v. Board of Education, 330 U.S. 1 (1947).
12. Summum v. City of Pleasant Grove, Utah (10th Cir. ) — held 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. On a split 6-6 vote, the 10th Circuit decided not hear the case en banc, thus letting stand the 3-judge panel's decision.
13. For an example of a significant old document that may not have been previously introduced into evidence, see the back of the Eagles Ten Commandments poster circa 1953 here. The statements by Judge E.J. Ruegemer, Cecil B. De Mille, F.B.I. Director J. Edgar Hoover and others clearly show that they viewed the Fraternal Order of Eagles Ten Commandments Program as being religious. That program included distributing tens of thousands of Ten Commandments posters and erecting more than 150 granite Ten Commandment tombstones, most of them on public property.
14. For the significance of the iconography of the Eagles Ten Commandments tombstones, see Chapter 5 - Eagles Tombstones Are Religions and Aggressive.
15. The Lemon test, crafted by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), states that governmental action concerning religion must (1) have a secular purpose, (2) not have the primary effect of either advancing or inhibiting religion AND (3) not result in an excessive government entanglement with religion. If the governmental action violates any of the three prongs, the government's action is deemed unconstitutional under the Establishment Clause of the First Amendment. For more information on this subject, see Chapter 2 - First Amendment Prohibition Against Government Promoting Religion.