Chapter 8 – Van Orden v. Perry: The
Supreme Court Blesses the Ten Commandments
[Working Draft, Nov. 23, 2009]

    "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 more 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.

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 Footnotes:

Myth #5. 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.

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 closeup of a Latin ("Christian") cross and two tablets atop of a marble totem poll outside the U.S. District Court building.

Eagles donated Ten Commandments tombstone in Austin, Texas

    The text on the two tablets is presumably in Hebrew, which means that over 99% of Americans can't read what is written on them. The larger Latin cross suggests a government endorsement of Christianity.

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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 Footnotes:

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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 Footnotes:

Myth #6: The Eagles’s Tombstones are Nonsectarian

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

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 Footnotes:

Myth #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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 Footnotes:

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 reme Court.

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 Footnotes:

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.

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 Footnotes:

Myth #8: 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, 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:

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:

Myth #9: The Eagles Tombstones are Passive

    See p. 686

    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.

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 Footnotes:

Myth #10: The Tombstones are Secular

    Sham secular purpose.

     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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 Footnotes:

Myth #__: The Ten Commandments Monument is Part of a “Museum”

    "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

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 Footnotes:

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.

    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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 Footnotes:

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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 Footnotes:

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).]

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

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]

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:

The Blessing

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

The Dissenters Fell One Vote Short

    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 26, 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.

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Footnotes:

1. Const., preamble.