Jul 16, 2013

The First Amendment legal battle in Texas politics

The politics of the legal battles over the public religious displays and the vagaries of what it means for a government to respect an establishment of religion are playing out in Texas, now, in the governors' race that's just getting started.

Gregg Abbott, Texas' attorney general, announced on Sunday he is running for governor. If he wins, he'll succeed Rick Perry and George W. Bush, likely becoming a Republican Party leader and someone talked about, at least, as a possible presidential candidate. Political observers expect him to win: He has $20 million in his campaign war chest, the blessing of the Republican party establishment, and a reputation for being a fighter.

As attorney general, Abbott has sued the Barack Obama administration 27 times. He has said that's his job, suing Obama.

But perhaps the most important example of his fighting is one Supreme Court decision on the First Amendment question of a Ten Commandment monument. It's evidence that some Texans take quite seriously, evidence which may well be parlayed into lots of votes.

Part of that reputation for fighting comes from Abbott's personal biography. He was paralyzed by a falling tree 29 years ago, and has been confined to a wheelchair ever since. Despite that challenge, he's had a successful career as a lawyer, served as a judge on the Texas Supreme Court from 1995 to 2001, and has been the attorney general since 2002.

In his gubernatorial race announcement, Abbott said, "You know, too often you hear politicians get up and talk about having a spine of steel. I actually have one, and I will use my steel spine to fight for you and Texas families every single day."

The other part of his fighter's reputation comes from Abbott's successful legal defense of a public display of the Ten Commandments. In 2005, the Supreme Court decided the case of Van Orden v. Perry in Abbott's favor. That's not incidental to his campaign announcement. His political ambitions are underwritten by how Texas voters view that victory, and his role in that victory. The court ruled that, though on the grounds of the capitol, the monument of the decalogue -- which was erected by a fraternal order in connection with the promotion of Cecile B. DeMille's film, The Ten Commandments -- did not signify a government endorsement of religion.

From the opinion, written by then-Chief Justice William Rehnquist:
The Capitol Grounds, as a whole, form the proper context in which to determine the effect of the Ten Commandments monument upon a reasonable observer. And this overall, museum setting precludes any reasonable perception of official endorsement of the monument’s religious content .... In its museum-setting context, this monument would not convey to the reasonable observer any official en- dorsement 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 Volun- teer 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.
Rehnquist also wrote that the monument was not exclusively religious, as it has a civic meaning, says something about the history of the laws of the state, and can also be seen as a tribute to the fraternal order that put up the monument in the first place. Those who want Christianity honored in the public square have not seemed dismayed by the claim that the publicness depletes the religiousness.

In his campaign bio, Abbott's role in Van Orden v. Perry was highlighted as an example of the kind of person he is and the kind of governor he would be. The official statement says, "Attorney General Abbott believes there is no higher power than God, and in March 2005 he personally appeared before the United States Supreme Court, where he successfully defended the constitutionality of the Ten Commandments display that adorns the Texas Capitol grounds."

Another lawyer representing Texas in the case has already built a political career on the Van Orden v. Perry decision. Ted Cruz, now a U.S. senator, references the court case regularly in his speeches. He cites "Preserving Religious Freedom" as a major reason to support him. The Supreme Court decision that the Ten Commandment monument isn't an endorsement of religion is listed as the first bullet point evidencing that commitment. Cruz's campaign literature says "that U.S. Supreme Court victory set a vitally important precedent for the right to display similar monuments across the nation."

Legal scholars are not as persuaded of the significance of the court case. They have pointed to the case as an example of how confused the jurisprudence on the First Amendment's establishment clause is, at the moment. But if the precedent is not as clear as it might seem, politically, the political value of the victory is clear enough for Cruz's stump speeches and for Abbott's gubernatorial campaign.

It's a win. It's the victory of fighters. It's the basis of a reputation to run on.

Abbott faces a long-time Republican operative and venture capitalist in the GOP primary. Some expect the recently famous Wendy Davis to go up against the Republican candidate in the general election, though no Democrat has won the governorship since George W. Bush took it in 1994.