Earlier this week the Supreme Court heard oral arguments in the case of Van Orden v. Rick Perry (Governor of the Red State of Texas). Slate explains in their “oh so irreverent” manner:
Imagine a bunch of elderly, black-robed medieval clerics absorbed in a scholarly dialogue on the number of angels (better make that “secular” angelsâcandy stripers or maybe Hell’s Angels) able to dance on the head of a pin. You’d have a good idea of how oral argument went this morning in the pair of cases involving displays of the Ten Commandments on state property.
At one level everything appears scholarly and doctrinal. Until you realize that the doctrine is a mess, and the justices are so tangled up in old tests, old glosses on old tests, and new glosses on new tests that they don’t even know how to talk about the Establishment Clause cases, much less how to resolve them. Perhaps the court is waiting to resolve the chaos until there are as many different Establishment Clause tests (legal scholars currently count about seven) as there are commandments.
The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” That ban has been interpreted to sweep in state and local governments as well. The disaster-on-stilts the court has used to determine whether such an establishment has taken place is known as the “Lemon test,” vomited forth upon the land in a 1971 case called Lemon v. Kurtzman. That test asked whether the government’s conduct had: (i) a secular purpose; (ii) a principal or primary effect that neither enhances nor inhibits religion; and (iii) did not foster excessive entanglement with religion.
Among the many groups that had their day in court was the Hindu American Foundation.
The Hindu American Foundation (HAF) was present at the United States Supreme Court on March 2, 2005, as the court heard oral arguments in the case of Van Orden v. Rick Perry. The foundation, along with nine co-signatories representing Hindu, Buddhist and Jain organizations, filed the only amicus curiae (friend of the court) brief providing a non-Judeo-Christian perspective to the widely anticipated case that involved the placement of a permanent monument of the Ten Commandments on government property.
Suhag Shukla, Esq., legal counsel for HAF, attended the hearings along with the legal team from Goodwin Procter LLP, the firm that filed the brief on behalf of HAF. Two cases, both relating to government-sponsored displays of the Ten Commandments, were heard over a span of two hours. The court focused on a wide range of issues, from whether the displays are similar to legislative prayer sessions, to whether the Texas Capitol state grounds where the Decalogue is displayed constitutes a museum-like setting.
“Decalogue?” I am so using that word when next I play Scrabble. Anybody that has interacted with me knows I am a law groupie (I love you Nina Totenberg) and that phrases like “amicus curiae” make me weak. Yes, I did read the whole brief (quite educational I might add).
SUMMARY OF THE ARGUMENT
The maintenance of the Ten Commandments Monument on the grounds of the Texas State Capitol violates the Establishment Clause because the Monument is inherently religious, serves no historic purpose, and does not lose its religious character through juxtaposition with secular images. It depicts the Ten Commandments, a cornerstone of Judeo- Christian theology, in the traditional shape of the âBiblical Stones.â Non-Judeo-Christians, including Amici, who do not adhere to the religious views that the Ten Commandments either state or symbolize cannot fail to perceive the placement of such a monument on the grounds of the Texas Capitol as an endorsement of Judeo-Christian beliefs over their own. The maintenance of the Monument therefore has the primary effect of advancing the Judeo-Christian beliefs to which a majority of Texans subscribe.
In reaching a contrary conclusion, the lower courts committed two principal errors. First, they concluded that the Ten Commandments Monument was ânon-sectarianâ simply because it favored no Judeo-Christian sect or denomination over any other. The courts below completely ignored the effect of the Ten Commandments Monument on non-Judeo-Christians, whose beliefs regarding the nature of God and the relationship between man and God differ greatly from those enshrined in the Monument and for whom the Monument is clearly and unavoidably âsectarian.â By ignoring the effect of the Monument on non-Judeo-Christians, they disregarded the requirements of this Courtâs Establishment Clause jurisprudence.
Second, the lower courts relied heavily on the forty years the Monument stood without challenge on the grounds of the Texas Capitol. The Establishment Clause is a bedrock constitutional limitation on the power of government and a violation of that limitation should not be countenanced simply because no one has complained for over forty years. Many of this Courtâs Establishment Clause decisions struck down statesponsored religious practices â mandatory school prayer, for example â that had been observed far longer than forty years. Moreover, the inference drawn by the lower courts that the absence of complaint evidences the inoffensiveness of the Monument overlooks the historically tiny population of non- Judeo-Christians in Texas â a population that has reached significant numbers only in recent years. With the recent increase of religious diversity, in both Texas and the nation as a whole, comes a host of Establishment Clause issues that would never before have come to the fore. The Fifth Circuitâs reliance on the historical absence of challenge during a period of much greater religious homogeneity effectively allowed majoritarianism to trump Establishment Clause requirements.
Amici respectfully submit that the lower courts reached the wrong conclusion here in part because they failed to properly consider the effect of the Ten Commandments Monument on those who do not adhere to Judeo-Christian religions. Amici urge this Court to rectify that mistake.
How can you not be aroused?
