Establishment Clause Challenge from Outside the Establishment

There’s a really cool article today in the Washington Post about this:

Photo Credit: Sylvia Moreno, The Washington Post

What “this” is, is a monolithic Ten Commandments monument, found outside the Texas State Capitol building, where it has stood for more than 40 years. And the reason it’s in the news is because Thomas Van Orden has taken a case all the way to the Supreme Court about it, arguing that it violates the Constitutional ban on the establishment of religion. Van Orden, by the way, is homeless and destitute, a former attorney whose law license is suspended.
But never mind all that, Thomas Van Orden admonishes anyone who gets stuck on the fact that he sleeps nightly in a tent in a wooded area; showers and washes his clothes irregularly; hangs out in a law library; and survives on food stamps and the good graces of acquaintances who give him a few bucks from time to time.

What is important, Van Orden says, is "I wrote myself to the Supreme Court."


On March 2, the Supreme Court will hear Van Orden v. Perry, a case born of Van Orden's daily meanderings around the Texas state Capitol grounds. There, between the Capitol and the Texas Supreme Court, stands a 6-foot-tall, 3-foot-wide pink granite monument etched with the commandments and Christian and Jewish symbols. Carved in the shape of stone tablets, the monument was presented to "the Youth and the People of Texas" in 1961 by the Texas chapter of the Fraternal Order of Eagles.

One day in 2002, as Van Orden walked to the State Law Library in the Supreme Court building, where he seeks peaceful and dry refuge daily, the lawsuit dawned on him. Somebody had to challenge the state of Texas for what he believed to be a governmental endorsement of Judeo-Christian doctrine and a violation of the separation between church and state.

Why not him? As he likes to say, "I have time; my schedule is kind of light."
Van Orden is not anti-religious. In fact, he considers himself a religious pluralist who enjoys church; he just also happens to believe in a firm separation between church and state—a fine bit of nuance no doubt lost on his detractors.
But as Van Orden often says, he did not sue the Ten Commandments. "I sued the state ... to uphold the values found in the First Amendment."
Using “the public resources of the Texas State Law Library, a dollar here and there from friends and some small donations from supporters of his cause,” Van Orden has put together a case that may be, well, forgive the pun, monumental. It will be heard at the same time as McCreary County v. ACLU of Kentucky, a case brining a similar challenge, and the ruling on the cases could mean the difference between such religious imagery being rightfully banned from the public (i.e. governmental) sphere or an economic boom in the monument industry as every red state courthouse buys a granite-forged Ode to the Ten Commandments of their very own.

If it’s the former, we will have an industrious, ingenuous man who made the absolute most of his meager resources and his firm belief in God, country, and a separation of the two, to thank.

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