Aug 3, 2012

Ted Cruz & the Texas Ten Commandment Monument case

Ted Cruz -- Texas Republican nominee for US Senate, hailed now as a leader and intellectual force for the Tea Party movement -- made his time as Texas' Solicitor General a foundational piece of his image and campaign. In that role he argued several First Amendment cases before the Supreme Court.

Van Orden v. Perry, also known as the Texas Ten Commandments Monument case, is particularly interesting.

As I read it, Cruz et al defended the monument on three grounds:
  1. The monument is primarily not religious (the most standard and yet counter-intuitive argument in these cases)
  2. A reasonable observer would correctly understand 1. (this probably being the real crux of the issue)
  3. Even if it were religious or were misunderstood as religious, there's nothing coercive about a monument, and thus religion isn't established (a position that's been advanced by Justice Clarence Thomas)
To a large extent, the arguments in the Texas Ten Commandment Monument case as similar to what one sees elsewhere. There were some that struck me as notably different, though.

For example:
"In its museum-setting context, this monument would not convey to the reasonable observer any official endorsement of religion. This is simply not a context in which the State is reasonably understood to be taking sides. The many monuments commemorating veterans do not communicate disapproval of pacifists; the Tribute to Children does not reflect negatively on older Texans; the Hiker and horse-riding Cowboy monuments send no message concerning motorized transport; and the Volunteer Firemen monument reflects no official disapproval of those who pursue firefighting as a paid profession. The monuments, memorials, and commemorative plaques on the Capitol Grounds are not reasonably perceived as creating 'insiders' and 'outsiders' in the Texas political community."
The argument here's pretty clever. Essentially, Cruz et al are saying that a monument can't make an exclusive claim. That monuments are always innately pluralistic, recognition of one thing never meaning or reasonably implying de-recognition for something else.

Presumably, though, the monument to hikers, the monument to children and the other monuments don't say anything like "I AM the LORD thy God / Thou shalt have no other gods before me,"  where the religious one has those words exactly. Which seems like a quintessentially exclusive claim.

The Supreme Court decided otherwise, though, ruling that the law,
"requires that we neither abdicate our responsibility to maintain a division between church and state nor evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage."
And, thus,
"The inclusion of the Commandments monument in this group [of monuments] has a dual significance, partaking of both religion and government, that cannot be said to violate the Establishment Clause."
In a 2011 speech, Cruz gave his own gloss on the court victory, citing it as an example of "how we re-take our country," by "standing on principle" -- "we," in that case, being specifically identified as "conservative Christians."

Some other notes:
-- Van Orden who brought the suit against Texas because of the monument, was, incredibly, a homeless Unitarian with a suspended law license.

-- Cruz' advisor at Princeton was Robert P. George.

-- In a smart analysis of Cruz's triumph, Abby Rapoport argues his win has little to do with ideology, much less the advent of a new era of Tea Party power, and has been widely and wildly mis-read.