When he argued his case before U.S. District Court Judge Harry Hudspeth, Thomas Van Orden stated: “To me, this monument says there are ins and outs in Texas. There are favored and unfavored.” Orden was arguing that the Ten Commandments monument violated the first two prongs of the Lemon Test: it didn’t have a secular purpose and it’s primary effect was to advance religion. Orden didn’t argue that the monument constituted “excessive entanglement” between government and religion.
When he argued before the Fifth Circuit Court, Orden said that Texas accepted the monument “for the purpose of promoting the Commandments as a personal code of conduct for youths and because the Commandments are a sectarian religious code, their promotion and endorsement by the State as a personal code contravenes the First Amendment.” There is nothing about the Ten Commandments generally or this monument in particular which pays tribute to the Fraternal Order of Eagles; instead, the monument must be honoring the religious principles contained in the Decalogue.
This, however, is unconstitutional. There is no secular reason to promote the religious principles in the Ten Commandments and, in doing so, the state is necessarily advancing or endorsing a religious message. Any reasonable observer will see a Ten Commandments monument as an endorsement of the Ten Commandments themselves. The very first Commandment is that there is one God who must be obeyed — how can the state erect a monument with such a statement at the top without at least suggesting that this message is being endorsed?
According to Jeff Boyd, deputy attorney general, “This case is about the right of Texas, through its government, to recognize the significant role the Ten Commandments and the Fraternal Order of Eagles have played in our history.” The state government argued the monument was less a memorial to the Commandments and more to what the Fraternal Order of Eagles has done.
This is a secular purpose and a reasonable observer who knows that the monument was donated by the Fraternal Order of Eagles will therefore recognize that secular purpose. That’s why there have been no legal challenges to the monument over the four decades that it has stood on the grounds.
Furthermore, the grounds of the Capitol are more of a museum than just the lawn of a court house. The government may not be allowed to erect religious monuments on the courthouse lawn where people will see an endorsement of religion, but the government is allowed to have religious works in public museums where visitors realize that the message in any one piece isn’t necessarily endorsed by the state.
Finally, even if the monument represents some sort of endorsement of the Ten Commandments, those commandments have had a profound influence on the law both in the West generally and America in particular. Whatever religious meaning they may also have, they certainly have a secular meaning and, therefore, memorializing them has a secular purpose.
The Supreme Court affirmed the ruling of the Fifth Circuit Court that the Ten Commandments monument did not represent an establishment of religion. The court accepted the government’s argument completely:
1. The Capitol grounds are a National Historic Landmark and therefore similar to a museum.
2. The Ten Commandments have both a religious and secular message and have had an “extraordinary influence” on the civil and criminal laws of this country.
3. The display has gone without legal complaint for four decades, which means that maintaining it now is due to its historical importance rather than any religious message it contains.
4. The placement of the monument at an intersection of the legislature, the executive office, and the Supreme Court Building demonstrates that its presence is due to its secular relevance for the law.
Chief Justice Rehnquist’s majority opinion focused in particular on the idea that America’s institutions “presuppose the existence of a Supreme Being” and that God plays a role in America’s heritage. In a concurring opinion, Justice Breyer focused on the fact that the Texas monument stood for so long without being challenged.
These two ideas share in common the premise that when something has been around long enough, then it should be regarded as constitutional. It’s an unprincipled premise because it’s never used to reach undesirable conclusions; instead, it’s only trotted out and dusted off when justices are looking to justify something they want and can’t find any legal arguments for.
