Nothing Sacred: in Van Orden v. Perry, the United States Supreme Court Erroneously Abandoned the Establishment Clause's Foundational Principles Outlined in Lemon v. Kurtzman

• Publication year: 2022

39 Creighton L. Rev. 783. NOTHING SACRED: IN VAN ORDEN V. PERRY, THE UNITED STATES SUPREME COURT ERRONEOUSLY ABANDONED THE ESTABLISHMENT CLAUSE'S FOUNDATIONAL PRINCIPLES OUTLINED IN LEMON V. KURTZMAN

Creighton Law Review

Vol. 39

INTRODUCTION

The founders of the United States of America established a rich tradition of religious diversity in this nation.(fn1) The founders articulated this tradition in the First Amendment, stating, "Congress shall make no law respecting an establishment of religion . . . ."(fn2) However, the founders wrote the language of the Establishment Clause unclearly at best, and hence created a source of lively constitutional debate.(fn3) Although it is well established that people may freely express their religious views on their own private property, when such expression is conducted on government property, the interpretation of the Establishment Clause becomes challenging.(fn4)

In Van Orden v. Perry,(fn5) the United States Supreme Court considered the breadth of the Establishment Clause when it declared a monument depicting the Ten Commandments on the Texas State Capitol grounds constitutional.(fn6) The Court opted not to follow the three-prong test first articulated in Lemon v. Kurtzman,(fn7) and instead based its decision on the monument's nature and the nation's history of accommodating religion.(fn8) The Court noted that while the Ten Commandments served a religious purpose, the Ten Commandments more importantly served a secular, historical purpose, and thus its display did not violate the Establishment Clause.(fn9)

This Note will demonstrate that the Court improperly disregarded the precedent of cases in this field and used an improper basis to justify its ruling.(fn10) This Note will first review the facts and holding of Van Orden.(fn11) Second, this Note will highlight the present law in this field.(fn12) Third, this Note will demonstrate the Supreme Court erroneously discarded its previously established analyses to construct new and inappropriate rules of law regarding the Establishment Clause by doing the following: 1) The Van Orden Court erroneously abandoned the Lemon test and failed to deliberate upon the legislature's purpose for the monument;(fn13) 2) The Court incorrectly emphasized history over government neutrality;(fn14) 3) The Court improperly endorsed the monument and the context in which it was placed.(fn15)

FACTS AND HOLDING

In Van Orden v. Perry,(fn16) Thomas Van Orden ("Van Orden") challenged the constitutionality of a Ten Commandments memorial ("Monument") on the grounds of the Texas State Capitol.(fn17) Van Orden, a law school graduate, regularly visited the State Capitol grounds while researching at the Texas State Law Library, where he encountered the Monument an average of twice a week.(fn18) Van Orden found the Monument offensive due to his atheist views and beliefs that ran contrary to Christian and Jewish theology.(fn19) Six years subsequent to Van Orden's first encounter with the Monument, he filed suit in December, 2001 under 42 U.S.C. § 1983 against the Executive Director of the State Preservation Board and other members of the board responsible for maintenance of the Capitol.(fn20) Van Orden sought declaratory and injunctive relief in the United States District Court for the Western District of Texas predicated on an Establishment Clause theory.(fn21)

The Fraternal Order of Eagles donated the Monument to the State of Texas in 1961.(fn22) At the time, the fraternal organization conducted a nationwide program to donate similar monuments to various government institutions and bore the cost to build and install the Monument.(fn23) However, the State was responsible for minimal maintenance of the Monument, including regular washing and polishing of the granite.(fn24) Senator Bruce Reagan and Representative Will Smith formally accepted the Monument at a dedication ceremony after its installation.(fn25) The State located the Monument north of the State Capitol building between the Supreme Court and the Capitol Rotunda.(fn26) In 1993, the State moved the Monument after a Capitol extension project and turned the Monument to face the corner of two sidewalks that intersected adjacent to the Texas State Supreme Court and Capitol.(fn27) Although the Monument stood in relative isolation, the State placed a total of 17 monuments on the Capitol grounds, including the following structures: a monument dedicated to Texas children, a pioneer woman, a reproduction of the Statue of Liberty, a memorial to Texans who died at Pearl Harbor, a memorial to veterans of the Korean War, and a memorial to World War I.(fn28)

The Monument had a height of approximately six feet and a width of three and one half feet.(fn29) The part of the Monument depicting the Ten Commandments read as follows:

the Ten Commandments

I AM the LORD thy God.

Thou shalt have no other gods before me.

Thou shalt not make to 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.

Honor thy father and thy mother that thy days may be long upon the land which the Lord thy God giveth thee.

Thou shall not kill.

Thou shall not commit adultery.

Thou shall not steal.

Thou shalt not bear false witness against thy neighbor.

Thou shalt not covet thy neighbor's house.

Thou shalt not covet thy neighbor's wife nor his manservant nor his maidservant, nor his cattle nor anything that is his neighbor's.(fn30)

In addition, the Monument contained several symbols, including a pyramid enclosing an eye, an eagle clutching an American flag, two Stars of David, the Greek letters of Chi and Rho representing Christ, and an inscription reading "PRESENTED TO THE PEOPLE AND YOUTH OF TEXAS BY THE FRATERNAL ORDER OF EAGLES OF TEXAS 1961."(fn31) The state legislature accepted the Monument by a resolution of both the House and Senate and stated the intent to display the Monument as commending and congratulating the Eagles for its efforts to fight juvenile delinquency and promote youth morality.(fn32) In 1986, the United States Secretary of the Interior classified the State Capitol and its grounds as a National Historic Landmark.(fn33)

The district court denied Van Orden relief, determining the Monument did not "advance, endorse, or promote religion."(fn34) The district court reasoned that Van Orden did meet the minimal, liberal standing requirements of an Establishment Clause case by demonstrating his unwelcome contact with the Monument.(fn35) The court next found that while Van Orden waited six years from his initial contact with the Monument to file a lawsuit, the doctrine of laches did not bar the case because the defendants were not prejudiced by the delay.(fn36) The court next considered the judicial precedent for Establishment Clause cases, noting that Lemon v. Kurtzman(fn37) was the starting point of analysis.(fn38) Despite the court's past critical view of Lemon and determination not to follow its precedent at times, the court nevertheless employed the test by considering (1) if there was a secular legislative purpose for the Monument and (2) if the principal or primary effect of the Monument either advanced or inhibited religion.(fn39)

The court considered the first prong of the Lemon test, whether the State's enunciated legislative purpose was a valid secular purpose for the Monument.(fn40) The court stated that commending and congratulating the Eagles for its work to eliminate youth delinquency was a valid secular purpose, and noted that Van Orden produced no evidence to show that the legislative purpose was illusory.(fn41) The State proposed an alternative purpose for the Monument as a tribute to the secular basis for Texas law; however, the court rejected the purpose due to lack of evidence.(fn42)

The court next considered the second prong of the Lemon test, if the principal or primary effect of the Monument either advanced or inhibited religion, but noted that the test recently underwent refinements to consider whether the government's action had the "purpose or effect of endorsing religion."(fn43) The court also noted that the test could not be applied in isolation, but instead the court must consider how a reasonable observer who was cognizant of the "history, purpose and context" of the Monument would interpret governmental endorsement.(fn44) The court determined that the evidence surrounding the Monument did not suggest governmental endorsement of religion.(fn45) Further, the court noted the designation of the location as a National Historic Landmark brought the grounds under the purview of the National Historic Preservation Act of 1966 and likened the location to a secular presentation in a museum.(fn46) The court stated neither the location of the Monument, off the well-beaten path of visitors, nor the passive physical characteristics of the Monument when viewed in the proper historical context advanced, endorsed, or promoted religion unconstitutionally.(fn47) Therefore, the district court denied Van Orden relief for his constitutional claim.(fn48)

Van Orden appealed the decision of the district court to the United States Court of Appeals for the Fifth Circuit, arguing that the State of Texas unconstitutionally promoted religion by displaying the Ten Commandments.(fn49) The Fifth Circuit affirmed the district court's opinion, stating that the Monument, when viewed in context, did not...