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This is an excerpt of the thorough, 23-page “friend of the court” brief filed by the Freedom From Religion Foundation before the U.S. Supreme Court in support of Thomas Van Orden. His lawsuit challenging a Ten Commandments monument on Capitol grounds in Texas is before the high court.
The brief also debunks the notion that the Capitol grounds are the equivalent of a “museum,” which would therefore permit religious displays, and addresses many other legal arguments.
By James A. Friedman and James D. Peterson
Question Presented
Whether a large monument, 6 feet high and 3 feet wide, presenting the Ten Commandments, located on government property between the Texas State Capitol and the Texas Supreme Court, is an impermissible establishment of religion in violation of the First Amendment.
Interest of Amicus Curiae
The Freedom From Religion Foundation, Inc. (the “FFRF”) is a non-profit educational group whose two primary purposes are to promote the constitutional principle of separation of state and church and to educate the public on matters relating to nontheism. The FFRF was incorporated in Wisconsin in 1978, and it now has more than 5,000 members, who generally describe themselves as “freethinkers,” a label intended to include atheists, agnostics and rational skeptics of any pedigree.
The FFRF’s activities include a variety of educational programs and, when necessary, litigation. The FFRF’s educational activities include publishing the monthly newspaper, Freethought Today, sponsoring high school and college essay competitions, conducting conventions, issuing awards, and publishing a wide array of books, pamphlets, and other printed materials. The FFRF also has established a book collection at the Memorial Library at the University of Wisconsin-Madison, and it maintains its own substantial library of literature on freethought and religion at its offices in Madison. More information about the FFRF and its programs is available at its website, www.ffrf.org.
The FFRF has been an active litigant on behalf of its members and other citizens concerned with governmental involvement with religion, and it has filed twenty-three suits alleging First Amendment violations since its inception. Although the FFRF is committed to nontheism and religious skepticism, it has on occasion worked with religious groups who share the FFRF’s objections to the governmental endorsement of religion. In fact, many of the co-plaintiffs in suits filed by the FFRF are themselves religious individuals who also are committed to the principle that government must remain rigorously neutral in religious matters.
The FFRF’s legal successes include: preventing the State of Wisconsin from declaring Good Friday a legal holiday, Freedom From Religion Found. v. Litscher, 920 F. Supp. 969 (W.D. Wis. 1996); barring direct taxpayer subsidy of religious schools, Freedom From Religion Found., Inc. v. Bugher, 249 F.3d 606 (7th Cir. 2001); terminating the funding of faith-based substance abuse treatment programs, Freedom From Religion Found. v. McCallum, 179 F. Supp. 2d 950 (W.D. Wis. 2002); and ending a long-term practice of illegal Bible instruction in public schools, Doe v. Porter, 370 F.3d 558 (6th Cir. 2004).
Summary of the Argument
The State of Texas, like numerous other state and local governments throughout the United States, has chosen to display on public property a tablet-shaped stone monument engraved with a version of the Ten Commandments, which begins:
the Ten Commandments I AM the LORD thy God Thou shalt have no other gods before me Thou shalt not make for thyself any graven images Thou shalt not take the Name of the Lord thy God in vain Remember the Sabbath day to keep it holy
The stone monument was a gift to the State from the Fraternal Order of Eagles, who made many such gifts in the 1950s and 1960s as part of its Youth Guidance Program intended to combat juvenile delinquency by providing a code of conduct for young persons. Books, 235 F.3d at 294. . . .
The State of Texas has participated in the Eagles’ Youth Guidance Program by accepting the monument and displaying it on the state capitol grounds. The State itself has thereby unequivocally endorsed the Ten Commandments–including those first four inherently sectarian precepts–as a proper code of conduct for Texas citizens. Judaism and Christianity thus bear the imprimatur of the State of Texas. Despite the fact that Texas citizens are legally free to worship however they choose, only Christians and Jews practice a faith that has been publicly approved by the State. For this reason, the 1961 resolution of the Texas legislature accepting the monument and agreeing to display it on government property is a law respecting the establishment of religion, and it contravenes the First Amendment. . . .
This is of vital interest to members of the FFRF who are every day cast as outsiders, and often physically threatened, simply for disclaiming belief in God or expressing a commitment to the separation of Church and State. The law does not prohibit boorish behavior from private citizens, nor should it. But no one who would treat a fellow citizen with malice or disdain because of his or her religious convictions or skepticism should draw the least encouragement from the official actions of the government. The endorsement test guards against the government’s participation in this evil.
. . .
Outside a scholarly context, a monument bearing a religious text conveys endorsement of the text’s religious tenets.
The Fifth Circuit, like other courts and commentators, finds a precedent for the display of the Eagles monument in the depictions of Moses at the Supreme Court building:
A display of Moses with the Ten Commandments such as the one located in the United States Supreme Court building makes a plain statement about the decalogue’s divine origin. Yet in context even that message does not drown its secular message. So it is here.
Van Orden, 351 F.3d at 182. The Fifth Circuit has overlooked a crucial distinction between the representations of Moses in the Supreme Court building and the Eagles monument at the Texas Capitol. The Eagles monument bears the entire text of a version of the Ten Commandments, whereas the text of the Ten Commandments is not displayed at the Supreme Court.
The distinction is crucial, and it largely explains the difference in the result in Stone and that in Lynch and Allegheny. The display of the full text of the Ten Commandments outside of a scholarly context entails promotion of its inherently religious aspects, which are utterly inescapable in the first four Commandments. Given this unequivocal religious content, displays of the text of the Ten Commandments are properly decided under Stone. But religious imagery and symbols are more ambivalent, and often do not unequivocally communicate solely religious doctrine. Displays of religious imagery and symbols therefore require the more extended endorsement analysis set out in Lynch and Allegheny.
Under Lynch and Allegheny, the depictions of Moses at the Supreme Court do not communicate religious endorsement. Moses is presented there as an example of a historical law-giver, a commemoration of the evolution of a law-governed society. As the Supreme Court’s The East Pediment Information Sheet 9 explains:
Law as an element of civilization was normally and naturally derived or inherited in this country from former civilizations. The “Eastern Pediment” of the Supreme Court Building suggests therefore the treatment of such fundamental laws and precepts as are derived from the East. Moses, Confucius and Solon are chosen as representing three great civilizations and form the central group of this Pediment. Flanking this central group–left–is the symbolical figure bearing the means of enforcing the law.
Moses is also depicted among the “procession of ‘great lawgivers of history,’ ” which portray the development of the law in the North and South Courtroom friezes. The friezes portray eight allegorical figures and eighteen historical lawgivers, which include the religious figures of Moses and Muhammad, as well as the secular figures of William Blackstone, John Marshall and Napoleon. Muhammad is depicted with the Qur’an, and “Moses is depicted in the frieze holding two overlapping tablets, written in Hebrew. Commandments six through ten are partially visible.” Courtroom Friezes: North and South Walls Information Sheet.
The East Pediment and the Courtroom friezes focus on the historical lawgivers; the bronze doors on the front portico depict “significant events in the evolution of justice in the Western tradition.” The Bronze Doors Information Sheet. These significant events allude to, without actually displaying, specific legal codes, including the Justinian Code, the Magna Carta, The Westminster Statute and the Court’s decision in Marbury v. Madison.
Each of these lawgivers and events is commemorated, even celebrated, at the Supreme Court. But even though some of the lawgivers are religious figures, each is celebrated for his contribution to the development of the law, not for his contribution to religion. Allegheny, 492 U.S. at 651 (Stevens, J., concurring in part and dissenting in part) (concluding that the Courtroom friezes “signal[] respect not for great proselytizers but for great lawgivers”). Crucially, the literal texts of the laws of the many historical lawgivers is nowhere presented in the commemorative artwork at the Court. And for that reason, no reasonable viewer would understand the commemorative artwork at the Supreme Court to convey a message of endorsement of the specific precepts set down by all the diverse lawgivers from Hammurabi to Napoleon.
There is no question, however, that the Supreme Court building conveys the unequivocal endorsement of the texts inscribed on the pediments, “Justice the Guardian of Liberty” and “Equal Justice Under Law.” Depictions of historical figures and religious symbols are open to multiple interpretations, but the presentation of a literal text as part of a monument typically conveys endorsement.
In contrast to the depictions of Moses at the Supreme Court, the display of the Eagles monument, dominated by the literal text of the Ten Commandments, inevitably communicates the endorsement of the specific precepts of the Commandments. These specific precepts are inherently religious, and they cannot be legitimately presented by a government, unless it is in a context that negates the message of endorsement. The grounds of the Texas State Capitol does nothing to negate that message.
Conclusion
There is no shortage of opportunities to display the Ten Commandments on private property. In La Crosse, when the city’s display of the Eagles monument was challenged by the FFRF, local churches and the La Crosse chapter of the Eagles offered to publicly display the monument on private property. The common council of the City of La Crosse stood firm in the political battle that followed, passing a resolution declaring that the monument “deserves to remain in its present location by any and all means available to the City.” Mercier, 276 F. Supp. 2d at 964.
The Eagles monuments in La Crosse and Texas, like those throughout the United State, were erected for the predominately religious purpose of securing adherence to particular religious faiths. The Eagles enlisted the assistance of local governments in advancing its Youth Guidance Program, and those local governments shared the Eagles’ objectives when they accepted those monuments and agreed to display them. The purportedly secular purposes now offered to explain the display of these monuments cannot disguise the fact that the governments who have displayed them have done so for unconstitutional religious reasons. The Constitution requires that these monuments be removed. No citizen should be made to feel like a outsider in her own community simply because she does not share the religious view of the majority.
The first commandment alone, “Thou shalt have no other gods before me” reveals why it is unconstitutional for the government to display the Ten Commandments. Under the guarantees of the Establishment Clause of the First Amendment, our citizens may have any gods they like, as many gods as they like, or none at all.
