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 hearThomas 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 unconstitutional and Texas’s display constitutional? Nobody knows—yet.
“If you’re a lawyer, it doesn’t get any better than this,” says the 46-year-old Abbott with a smile. “It’s a big, fascinating case, the kind you only dream of getting when you’re a young kid in law school.” Van Orden, who is 59, is likewise excited by the prospect of arguing the case before the Supreme Court. It has consumed his every thought for two years, ever since he sued the State of Texas in federal court in Austin to have the monument removed. He lost, and lost as well his appeal to the Fifth Circuit Court of Appeals, in New Orleans, last November, setting the stage for a Supreme Court fight. “Even a guy who sleeps under a bush has a duty and right to fight for his constitutional rights and make history,” says Van Orden. “It’s a great country, isn’t it?”
For Texans, the seeds of this conflict over the Ten Commandments were sown in 1961 as part of a nationwide public relations gimmick. The Fraternal Order of Eagles, an international blue-collar service organization, had decided to distribute written copies of the Commandments around the country to remind young people that it’s bad to steal, swear, lie, kill, commit adultery, and dishonor your parents. The Eagles were encouraged by Cecil B. DeMille, the famed movie director, to donate stone monoliths to cities after the release of his movie, The Ten Commandments. So it came to pass that DeMille promoted his movie in Texas and elsewhere at the expense of the Eagles, who donated hundreds of these monuments to communities around the country. The one in Austin is located about 75 feet from the Capitol building, on a line between the Texas Supreme Court and the Capitol rotunda. It’s nearly seven feet high and three-and-a-half feet wide. In the center of it, the Ten Commandments are etched in stone.
The monument sat there pretty much uncontested until the mid-nineties, when Van Orden came upon it on his way to the law library. A proud, bookish man, he grew up in Tyler, where he attended a Methodist church his father helped found. After graduating from North Texas State University (now the University of North Texas), he earned his law degree at Southern Methodist University. For years he worked as a criminal defense lawyer in Houston and Dallas. Then, in the early nineties, his lifelong battle with anxiety forced him to stop taking cases; when he could no longer afford to pay his dues to the State Bar, he lost his law license. In 1995 or 1996, he says, he sat down underneath a tree and that was that. He never returned to his home or office and began living on the streets. But his interest in the law never abated. He spent his days in the law library, reading up on civil rights law.
As he walked past the monument on the way to the library day after day, its religious message began to bother him. “I don’t have anything against religion,” he told me, leaning his skinny frame against the monument one afternoon. “I’m not Madalyn Murray O’Hair. I’m not a radical. I just think government can’t take sides when it comes to religion. Most Texans wouldn’t like it if we put a Buddhist or a Hindu monument on the Capitol grounds. That’s why this one can’t be here. It promotes one religion over another.” He felt so strongly that, in his words, “government has to be neutral” that he filed suit to have the monument removed. He didn’t have enough money to pay the court filing fee, so he submitted an affidavit to have the fee waived. Under oath, he was asked how much money he had. “Three dollars,” he replied. He was then asked where he slept. “In the woods,” he said.
In the beginning, Van Orden was written off as an eccentric, but his persistence and focus have won him respect. “The man knows his law,” said Abbott. “He’s an extremely capable opponent.” To practice the arguments he’d make before the Fifth Circuit, Van Orden presented his case to a group of University of Texas law students, one of whom gave him a ride to New Orleans. With the possible Supreme Court date looming, many people have stepped forward with offers of help and advice. Some have suggested he give the case to a lawyer with more First Amendment experience, and Van Orden is thinking about it. But at night in his tent, he dreams of facing the justices by himself—one man alone before the highest court in the land. (And then what? “I love the law, and I’m sick of living on the streets,” he says. “It would be great to get a job.”)
For his part, Abbott told me he plans to stick with the secular-and-historic arguments he made before the Fifth Circuit. Okay, but what happens if another religious group comes along and wants to put up its own historically significant monument? What would keep the Capitol grounds from being littered with religious monuments of all kinds? I told Abbott I was thinking of Ogden, Utah, whose city council was forced to let the Summum church erect a monument inscribed with its seven foundational principles because a granite display of the Ten Commandments donated by the Eagles had been erected in a public park. When the city argued that the Commandments were more historically significant than the Summum’s principles, the Tenth Circuit Court of Appeals said that since Ogden had given access to one religious symbol, it had to give access to others. Abbott replied that just as the Texas Legislature accepted the gift of the Commandments from the Eagles in 1961, it would be up to future legislatures to accept or reject other religious monuments.
It’s hard to imagine the Lege accepting such gifts from Summums or even Muslims, and there’s the rub: The intent behind the establishment clause of the First Amendment is to keep politicians from choosing one religion over another. Van Orden says that’s exactly what’s happening on the Capitol grounds. Abbott disagrees. Who’s right? With any luck, thou shalt find out soon enough.