A Ten Commandments display on the grounds of the Texas state capitol should not be permitted to stay simply because it has been there for a long time, Americans United has argued in a legal brief at the U.S. Supreme Court.
Americans United weighed in on the case Van Orden v. Perry, which the high court will hear next month. The case challenges government display of a granite monument listing the full text of the Ten Commandments.
In upholding the display, the 5th U.S. Circuit Court of Appeals held that the state need not move the monument because “it has been in place for so long.” The court rejected arguments that the display was controversial, noting it had not been the subject of any other legal challenges.
AU attorneys dispute those claims in a friend-of-the-court brief filed last month.
“It is a well-established tenet of [church-state] jurisprudence that, al\xadthough the history of a practice or display may matter, its mere longevity does not,” observes the brief. “The fact that a practice or display is longstanding cannot, in and of itself, validate it under the Constitution.”
Continues the brief, “[T]he historical event or circumstance that is being commemorated by the display must truly have historical significance. To claim that something has historical significance simply because it happened in the past, or that it has assumed significance simply by virtue of its longstanding existence, would allow the government to maintain or even financially support any pre-existing religious institution or display.”
The brief goes on to assert that the only reason the monument may not have sparked earlier challenges is that many people are fearful of filing such cases. It lists several examples of harassment endured by people who have brought church-state litigation. They range from death threats and harassment to vandalism and economic retaliation.
“Opinions such as that of the Fifth Circuit below thus vastly understate the genuine risks to individuals and their families who challenge a government religious display or practice, particularly when the individuals are members of a minority faith or are non-religious,” observes the brief. “Such challenges are undertaken only at great risk. Conse\xadquently, no plaintiff may come forward to challenge a particular religious display or practice, or it may take years for an individual to muster the courage to do so.”
Joining AU on the brief are People For the American Way and the National Council of Jewish Women.
A coalition of minority religious groups has filed a separate brief urging the high court to order the Command\xadments removed from government property.
The brief, filed on behalf of millions of American Hindus, Buddhists and Jains, argues that the Ten Command\xadments reflect Judeo-Christian teachings and are not a universally shared moral code.
The brief, drafted primarily by the Hindu American Foundation, argues that some of the commandments are irreconcilable with the beliefs of Jains and Buddhists, who may not recognize a “creator/controller God.” In addition, the brief points out, the second commandment, which bars worship of idols or images, clashes with the Hindu belief of consecrating images in worship.
“The brief makes it clear that the co-signatories regard the Ten Command\xadments with utmost respect,” Suhag Shukla, legal counsel for the Hindu American Foundation, told Religion News Service. “But the overtly religious monument is a blow to pluralism, and its prominent presence on Texas Capitol grounds implies political and social exclusion of Hindus, Jains and Buddhists alike. The district and the appellate court failed to consider the effect of the monument on those adhering to non-Judeo-Christian faiths.”
The American Humanist Association, an organization composed primarily of non-believers, has also filed a brief, asking that the religious display be declared unconstitutional.