IF YOU’RE LOOKING FOR THE LINE THAT separates church and state, stand smack in the middle of West Fourteenth Street in Austin, halfway between Lavaca and Colorado streets. On one side, Texas attorney general Greg Abbott sits in his eighth-floor office, restating his argument that a granite monument featuring the Ten Commandments located on the grounds of the Texas Capitol is not a violation of the First Amendment prohibition against “an establishment of religion.” On the other side, in the Texas State Law Library, Thomas Van Orden, a homeless former defense lawyer, sits at a corner desk constructing the opposite case. Van Orden contends that a monument that features the words “I am the Lord thy God” and is etched with two stars of David and a Christian cross has no place on government property.
The two men—one the state’s most powerful lawyer, the other so poor that he sleeps in a tent in a wooded area of Austin by night and works by day with pens he finds on the University of Texas campus and paper that he retrieves from recycling bins—may face off against each other this spring if the U.S. Supreme Court agrees to hear Thomas Van Orden v. Rick Perry et al. If it does, it will be quite a fight. Remember the unholy uproar last summer when Alabama chief justice Roy Moore defied a court order to remove a Ten Commandments monument he had erected in the rotunda of his state’s judicial building? The Supreme Court refused to hear Moore’s appeal, but he still wouldn’t take the monument down—and eventually he was the one who was removed. Less famously, a monument identical to the one in Texas was taken down two years ago from the front of the city hall in Elkhart, Indiana, after the Seventh Circuit Court of Appeals said its location on public property violated the First Amendment. Many legal scholars say that the high court must resolve the conflicting decisions among the nation’s lower courts. “That’s why I want the Supreme Court to take our case,” Abbott says. “The country is begging for clarity on this issue.”
The unresolved question is whether displays of the Ten Commandments and other religious symbols breach the constitutional wall between government and religion. It boils down to this: If a court finds that the symbol serves a secular or historic purpose and does not endorse a religion, then it’s okay to display it on public property. The problem is that the Supreme Court has never ruled on when religious symbols should be considered secular or historic and when they shouldn’t be. Does the presence of the tablets on the Capitol grounds promote Judaism and Christianity, as Van Orden believes, or are the tablets secular, as Abbott believes, because the Ten Commandments are the foundation of Western legal codes and the monument celebrates the state’s history? What makes Alabama’s and Indiana’s displays of the Ten Commandments