van orden v. perry and june 27, 2005 and supreme court and rehnquist and historical document

In the second of the Court's 10 Commandments cases handed down on June 27, the Court split 5-4 and affirmed the constitutionality of the display of the 10 Commandments on the lawn of the Texas statehouse. While it is possible to go through the legal arguments in detail (and a case summary is presented here), I want to make two or three points about legal argumentation from of Chief Justice Rehnquist in this case. The next essay will probe some of the other concurring opinions.

Getting our Bearings

So that you know a few facts--in the early 1960s, the Fraternal Order of Eagles donated to the State of Texas a monolith, 6' high by 3' wide, on which were inscribed the 10 Commandments from Exodus and some symbols of Judaism and Christianity. This monument now exists along with 16 others on the Capitol grounds. Some of these others depict Heroes of the Alamo, The Boy Scouts' Statue of Liberty Replica, a tribute to Texas Peace Officers and a series of other monuments that "compose Texas identity." The legality of the 10 Commandments monolith was only contested more than 40 years after it was first erected. Does this display, placed as it is with other symbols of "Texas identity," violate the First Amendment prohibition of government establishment of religion? My points here will focus on the nature of Chief Justice William Rehnquist's argument.

The Chief Speaks

Rehnquist is a conservative, no doubt about it, but he handles his judicial conservatism in a different way than Justice Scalia, for example. Whereas the latter has repeatedly called for the overturning of the Lemon framework, the three-part test articulated in 1971 for determining if a government action violates the Establishment Clause, Rehnquist often will refer to the framework and then deftly sidestep it when analyzing the facts of a case. This is precisely what he does here. "Over the last 25 years we have sometimes pointed to Lemon as providing the governing test in Establishment Clauses challenges...we think it not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds." What does he want to do instead? "Instead, our analysis is driven both by the nature of the monument and by our Nation's history."

So, first he puts Lemon aside with the explanation that the Court only sometimes uses it. Next he decides that history and the "nature of the monument" control this case. A goodly part of his opinion, then, is taken up with showing that the Founding Fathers believed in God and didn't think it inappropriate to invoke God's blessing at crucial points in the nation's history. Nothing more. But we shouldn't miss his point; since our forefathers didn't think that public acknowledgment of God's blessings in our nation's history was inconsistent with the language of the First Amendment, passed during their lifetimes, we shouldn't think so either. Rehnquist sees the 10 Commandments as functioning in this way, though an argument can be made that they focus more on religious duties than simply an acknowledgment of the blessings of Almighty God.

Then, once he has dispatched of history, he can also quickly deal with the "nature of the monument." What is its "nature?" It is a purely "passive" monument. He never goes into what he means by this, but I suppose it means that it isn't forced down your throat, that it is in no sense "coerced" (unlike, for many Justices, a graduation prayer or even the Pledge of Allegiance). That is, you can look at the monument if you want or you can ignore it if you want. A passive monument is, by definition, less intrusive than an "active" one, and hence isn't as easily seen as an example of government "Establishment" of religion.

But he still has to get over a hurdle before he can rest his case. The Court said in 1980, in Stone v. Graham, that the 10 Commandments (disallowed in this case in KY schools) was a "religious document." Clear and simple. So, how does Rehnquist get around government's placing a religious document on the Capitol grounds? By calling it something else. It surely is a religious document, he says. No question about it. But it is also a historical document. Well, I suppose that anything that was written more than 10 minutes ago is a historical document. But this simple observation, unsupported by such a finding in the Court's history, allows him to dismiss the impact of the Court's observation in Stone. If the 10 Commandments is a historical document, also, then it just tells a historical story. No problem at all.

Then, finally, he has to dispatch Stone or limit it, since Stone says pretty unequivocally that such a display of the 10 Commandments is an impermissible establishment of religion. How does he do so? By saying that the Stone case only refers to public schools. That is the argument that carries the day, even though three members in the majority write separately to express the grounds of their agreement.

Conclusion

One of the things that the Court has to guard against, and some of the Justices are increasingly aware of this, is that by relegating the 10 Commandments to "history," and by pointing to the Founding Fathers acknowledgments of God, they are coming perilously close to arguing that mention of God is permissible because belief in God is a "historical" belief, an acknowledgment that we have always made in our history. Those who believe, however, in the power of a living God will take issue with that. Their religion is real, as is their God. Ultimately, they want a stronger affirmation of the importance of religion in American life. Will they be able to get it? That is the question for future Courts.

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