The case of Van Orden V. Perry asked whether or not it was constitutional for a 6 foot tall stone carving of the Ten Commandments to be placed between the capitol and courthouse in the State of Texas (Van Orden v.
Perry, 2005). Former Lawyer Thomas Van Orden claimed that placement of the commandments near the two government buildings violated the “establishment clause” of the constitution’s first amendment (Van Orden v. Perry, 2005). That clause states, “Congress shall make no law respecting an establishment of religion.
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” (U. S. Const. , amend. I.
) Van Orden, then, must have seen the proximity of the sculpture to the governmental buildings a sign of government approval for Judaism/Christianity. This sort of endorsement, in Van Orden’s eyes, must have constituted an establishment of religion. The Texas court ruled, however, that because the monolith was given to the government as a gift from the non-sectarian Eagles Club, in order to discourage juvenile crime, that it served a non-religious purpose, and therefore, although it had religious meaning to some people, served as a secular and historic piece (Van Orden v. Perry, 2005).
The court also argued that the monument was “passive” and that it’s presence would not seem like an endorsement to anyone reasonable (Van Orden v. Perry, 2005).. The United States Supreme Court agreed with the Texas court’s ruling (Van Orden v. Perry, 2005).. Justice Rehnquist submitted that there were two sides to applying the stipulations of the Establishment clause (Van Orden v. Perry, 2005).. On the one hand, he said, religion has played a very big role in America’s founding and history. Therefore, he said, respecting that tradition was important (Van Orden v. Perry, 2005)..
On the other hand, Rehnquist pointed out, sometimes the government in religious affairs threatens religious freedom. Therefore, government interference, he said, ought to be limited (Van Orden v. Perry, 2005).. The court, therefore, said Rhenquist had to find a balance between making sure that the church and state remained divided and making sure that it did not act in a hostile manner toward religion (Van Orden v. Perry, 2005).. Rhenquist claimed that the mere presence of religious material was not against the founders intentions, as they themselves spoke of God frequently.
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He cited congresses request to George Washington to make a Thanksgiving address that thanked God for his work in America (Van Orden v. Perry, 2005). Therefore, he said, even though the Ten Commandments are, indeed, religious, they also serve a secular purpose, since Moses was a lawgiver (Van Orden v. Perry, 2005).. Because, said Rehnquist, the monument was passive, rather than aggressive, he ruled that it ought to be allowed to stand (Van Orden v. Perry, 2005).. Justice Stevens wrote a dissent (disagreement), to Rhenquist’s opinion.
He claimed that the clear definition of “establishment” implied favoring one religion over others (Van Orden v. Perry, 2005). Allowing the ten commandments to stand, he said, was a clear breech of the clause. Stevens also challenged the passivity of the monument, saying that the placement of the Ten Commandments was an attempt to convert non-Christians to Christianity (Van Orden v. Perry, 2005).. He stated that the entire purpose of the monument was to champion one version of the bible, denied that the piece was a work of art, and declared that it had nothing to do with any historic event in Texas (Van Orden v.
Perry, 2005). Stevens argued that the monument does not provide anyone looking at it with any reason to believe that it was set up to honor any group. Instead, he said, the message it sent was that the state endorsed the Judeo-Christian God (Van Orden v. Perry, 2005). Stevens argued that it was essential for the court to disallow the placement of the ten commandments, so that Thomas Jefferson’s ideal of a “wall” between the church and state could be preserved (Van Orden v. Perry, 2005).
He said that Rehnquist could not base his decision off of the speeches of the founding fathers to determine their intent, because those were not official documents and officially, the framers of the constitution had other ideas. He further stated that the role of the government and of the court particularly in religion was to stay completely neutral (Van Orden v. Perry, 2005). Justice Thomas, who wrote an opinion concurring, or agreeing with that of Justice Rhenquist, argued that the case could be simplified if the original definition of “establishment” as the founders intended it to be, were used (Van Orden v.
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Perry, 2005). That definition, said Thomas, involved some sort of force or coercion. Quite plainly, said Thomas, the monument was not forcing anyone to take any religious action (Van Orden v. Perry, 2005). Van Orden could, if he so chose, look away from the monument or ignore it. Because the monument did not force Van Orden to take any religious action, according to Thomas, it’s mere presence did not constitute a violation of the establishment clause of the constitution (Van Orden v. Perry, 2005).. Justice Stevens is right to consider the thoughts and rights of the non-religious.
Many who oppose the placement of monuments like the one in Van Orden v. Perry value privacy and individualism over religious expression. Indeed, according to Rod Smolla of Slate Magazine, many believe that, “religious symbols and rituals are matters of private faith and devotion . ” (Smolla, 2004, p. 1 ). Justice Stevens understands their concerns and their dislike of governmental interference in private matters (Van Orden v. Perry, 2005).. Therefore maintains that the court ought to be neutral in cases of religion.
While, in theory, this is a good practice, the very nature of the court is to make judgement. In cases where one side must lose if the other wins, the court cannot remain neutral. How can someone rule neutrally in a custody case, for example? If the mother wins custody of her children, the father loses it. The jury in these cases, must take a side, although taking a side is painful. In Van Orden V. Perry, the court is faced with a decision that will either be on the side of Christians or on the side of atheists.
If an atheist wins and the monument is taken down, Christians who loved that monument and the expression of their religion lose out. The act can be seen as hostile, as justice Rehnquist and Thomas point out. Meanwhile, if the monument stays, Van Orden and his fellows will have to view it as they walk. Yet the constitution does not guarantee anyone the right to keep from being offended. Rather, it says that religion cannot be prevented from being expressed or be established by congress. As Rehnquist and Thomas point out, the placement of the sculpture is not an act of coercion.
Although Justice Stevens claims that it is an attempt to convert people to Christianity, he offers no evidence of that fact and the monument itself says no more of converts than it does of honoring the Eagles. If the Texas government prevented other religions from setting up monuments, while at the same time allowing Christian monuments to be built, and Van Orden had pointed out this act of favoritism, then Stevens would have more of a case. Yet neither Van Orden, nor Stevens offer any evidence to suggest that this is the case.
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Therefore, it would be hard to make the case that the placement of the monuments violates even Justice Stevens’ definition of “establishment. ” The court, then, made the right ruling.
References
Smolla, R. (2004). Why the commandments make for such messy law. Slate Magazine. Retrieved Oct. 6, 2007, from http://www. slate. com/id/2108280. U. S. Const. , amend. I. Retrieved Oct. 6, 2007, from http://www. usconstitution. net/const. html Van Orden v. Perry. 545 U. S. 677 (2005). Retrieved Oct. 6, 2007, from http://www. law. cornell. edu/supct/html/03 1500. ZS. html