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” angels—candy 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 “Biblical Stones.†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 “non-sectarian†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 “sectarian.†By ignoring the effect of the Monument on non-Judeo-Christians, they disregarded the requirements of this Court’s 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 Court’s Establishment Clause decisions struck down statesponsored religious practices — mandatory school prayer, for example — 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 — 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 Circuit’s 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?
I’ll be interested to see how non-Christian, Bush-supporting South Asians justify voting for a person who wipes his ass with the Establishment Clause.
The religious extremists Christians always talk about “tolerance” but what I think all mutineers need to demand is “respect” of other religions. There is a HUGE difference between the two. The assertion of Hindu identity is very important. I know a lot of people cringe at the word Hindu identity thinking that somehow that is being religious, but the fact is that it (assertion) will decide on whose terms will minorities live. I hope people reading my comment understand the importance of what I am talking about .. and good job Abhi !!!
Is Hindu American Foundation the same group that did the McDonald’s lawsuits?
The brief says that
If the lower court believes this, then they’re wrong. There are substantial differences between Catholic, Protestant and Jewish versions of the commandments. Link viaAmardeep’s blog.
An out-of-context thread…
Is there not a single Formula 1 fan in sepia/mutiny. Narain Karthikeyan is the first Indian who raced his first race today at Australian Grand Prix, a 15th position, FYI.
Curiously, RS
Kizzy, I don’t think there are any Formula One fans amongst us writers of SM (Formula One just isn’t popular in the states), but we did do a post on him:
Thank You Abhi. So only NASCAR fans here?
“There are substantial differences between the Catholic, Protestant and Jewish versions of the commandments.”
I think “substantial” is a bit of an exaggeration. The order shifts between each version, but the “commandments” remain essentially the same.
In addition, when framing this argument, “Judeo-Christian” and “Judaic” should be not be used interchangeably or simultaneously, as they are not the same nor do they carry equal weight in terms of the U.S. Constitution (i.e. citing the difference between Jewish commandments and Christian commandments is irrelevant in regard to the court’s ruling regarding Judeo-Christian denominations or sects).
“…always talk about “tolerance” but what I think all mutineers need to demand is “respect” of other religions.”
Yes, well, it seems to me that you had no problem with Beep saying that certain South Asians, because they are Christian, support wiping one’s ass with the Establishment Clause.
The Commandments on public property doesn’t work, that’s really all there is to it. All these other arguments… don’t work either.
sd,
Whaaa? back that comment up.
beep said, “I’ll be interested to see how non-Christian, Bush-supporting South Asians justify voting for a person who wipes his ass with the Establishment Clause.”
The Ten Commandments are complicated because the Court previously has permitted displays that include religious stuff as long as the displays also include non-religious stuff; in other words, as long as the display is historical or descriptive rather than religious in intent. For example, the Court itself has a ‘history of law’ display that includes Judeo-Christian lawgivers, but also Chinese and Roman ones. “Cast in bronze, the west entrance doors sculpted by John Donnelly, Jr., depict historic scenes in the development of the law. A sculpture group by Herman A. McNeil is located above the east entrance that represents great lawgivers, Moses, Confucius, and Solon.”
“… back that comment up.”
Beep would like to know “how non-Christian Bush-supporting South Asians justify voting for a person who wipes his ass with the Establishment Clause” and implicit in that question is a) the statement that support for such a person is based on religion and b) that best to his knowledge, Beep does believe Christians do support that kind of behavior.
“…the Court itself has a history of law…”
I don’t believe a singular exhibition of the Ten Commandments works, a collaborative exhibition with other icons, artifacts and non-religious edicts is okay but… I think it’s impossible to separate the Commandments from their religious intent because–unlike law and interpretations of law, from Plato to Confucius and the Supreme Court–the Commandments are supposedly derived from “the word of God,” not the “philosophy of man.” One could place the Commandments with other scripts and scrolls detailing the history of law and that’s fine, but to say it then rids itself of religious connotation is ridiculous.
Ultimately, I think the Court should look at how much relevance the Commandments really have to our current legal system… “Thou shalt not steal” and “Thou shalt not kill” are the only two that decidely exist in constitutional law and really, those “commandments” have been around since before the origins of democracy in Greece and the dateline by which the Commandments were first delivered.
This is a logical error. If A then B does not imply if B then A.
Beep may be saying that it’s impossible to cleanly divide Christian supporters of Dubya who support him for his policies, those who support him for his religion, those who support him for neither and those who support him for both. So if you remove one variable and focus the inquiry on non-Christians, you get a cleaner answer.
And to top it off, the vast majority of “Biblical” archeologists reject the notion that the captivity, exodus, commandments-giving story and conquest of Israel is history. To 90% of those who have examined the archeological evidence, the entire Pentateuch (first five books of Bible) is historical fiction: Brilliantly crafted legend and mythology.
A good read is archeologist Israel Finklestein and historian Silberstein’s stunning refutation of the Biblical stories in THE BIBLE UNEARTHED.
For some articles that I have copied from Biblical Archeology Review and some Israeli magazines go to http://community-2.webtv.net/headbands/DECONSTRUCTING This page is part of my site – http://www.stopthereligiousright.org – that addresses much of the historical revisionism of the conservative Christian extremists.
I deal with the rise of Christianity and the death of religious liberty in the 4th-6th centuries (the Christian dictators from Constantine to Justinian). Their revision of slavery and the churches. Their revision of Women’s suffrage. Their denial regarding bans of mixed race marriages called miscegenation laws (Gawdz natural order!). Their historical revision of gays in Nazi Germany and their ommission of the Nazi bureaucracy, THE REICH CENTRAL OFFICE FOR THE COMBATING OF HOMOSEXUALITY AND ABORTION paragraph 175 was passed in 1871. I also have a TEN COMMANDMENTS site and a CLASSICAL & PAGAN ARCHITECTURE OF WASHINGTON, DC which destroys their moses arguments. I
I am alsways adding stuff.