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Supreme Court on a Shoestring

Homeless Man Takes On Texas, Religious Display

By Sylvia Moreno
Washington Post Staff Writer
Monday, February 21, 2005; Page A01

AUSTIN -- Comes now the plaintiff, surely one of the most unusual to get a case to the highest court in the land. He's homeless; he's destitute; and his law license is suspended.

But never mind all that, Thomas Van Orden admonishes anyone who gets stuck on the fact that he sleeps nightly in a tent in a wooded area; showers and washes his clothes irregularly; hangs out in a law library; and survives on food stamps and the good graces of acquaintances who give him a few bucks from time to time.

The Ten Commandments monument, which sits outside the Texas state Capitol, violates the constitutional ban on the establishment of religion, according to plaintiff Thomas Van Orden. Van Orden, whose law license is suspended, sued the state and argued the case himself. (Sylvia Moreno -- The Washington Post)

What is important, Van Orden says, is "I wrote myself to the Supreme Court."

That he did and with a case that involves an issue that has divided liberals and conservatives as well as lower federal courts for decades: the display of a Ten Commandments monument on government property.

On March 2, the Supreme Court will hear Van Orden v. Perry, a case born of Van Orden's daily meanderings around the Texas state Capitol grounds. There, between the Capitol and the Texas Supreme Court, stands a 6-foot-tall, 3-foot-wide pink granite monument etched with the commandments and Christian and Jewish symbols. Carved in the shape of stone tablets, the monument was presented to "the Youth and the People of Texas" in 1961 by the Texas chapter of the Fraternal Order of Eagles.

One day in 2002, as Van Orden walked to the State Law Library in the Supreme Court building, where he seeks peaceful and dry refuge daily, the lawsuit dawned on him. Somebody had to challenge the state of Texas for what he believed to be a governmental endorsement of Judeo-Christian doctrine and a violation of the separation between church and state.

Why not him? As he likes to say, "I have time; my schedule is kind of light."

Van Orden is a self-declared religious pluralist who was raised Methodist in East Texas and joined the Unitarian church in Austin in the 1990s. That was before he sank into a major depression that destroyed his family life and legal career and rendered him homeless. "I miss it," he said about church. "But it's hard to get up and go on Sunday morning when you live in a tent."

He speculated that even the Texas chapter of the liberal American Civil Liberties Union would never challenge the commandments monument on the Capitol grounds.

"If you're in private practice in Austin and file this suit, you're going to be radicalized -- even in liberal Austin. But look at me; I'm the perfect person. I don't have anything to lose," he said recently as he stood outside the court building. He is 59 or 60 but will not say which. He needed a shave, and his teeth and fingers were stained dark from tobacco, but he looked rather lawyerly in his second-hand slacks, blue-striped shirt and scuffed brown wingtips. "It's like God called me to do it. How could I walk away from that?" he said. "It just looked to me like the light shined on me."

Now the U.S. Supreme Court will decide the question presented in the Van Orden case: whether a monument bearing the Ten Commandments, which has stood for more than 40 years and is surrounded by 16 other monuments on the Texas Capitol grounds, "constitutes an impermissible establishment of religion in violation of the First Amendment." To be heard at the same time is McCreary County v. ACLU of Kentucky, a case that challenges the exhibition of the Ten Commandments along with other historical documents in two courthouses.

In the Texas case, the U.S. Court of Appeals for the 5th Circuit ruled in November 2003 that the commandments monument conveyed both a religious and secular message and did not violate the Constitution. In the Kentucky case, the U.S. Court of Appeals for the 6th Circuit ruled in December 2003 that two counties must remove framed copies of the Ten Commandments from courthouse walls because they constituted religious displays. These are just two of more than two dozen cases involving the Ten Commandments that lower courts have decided since the U.S. Supreme Court last agreed to address the issue in 1980. It was then the high court struck down a Kentucky law that required public schools to post the commandments in classrooms.

Van Orden's case will be argued at the Supreme Court by constitutional law scholar Erwin Chemerinsky of Duke University. Van Orden called Chemerinsky shortly after the 5th Circuit ruled against him in late 2003, and Chemerinsky agreed to take the case pro bono. Last spring, Chemerinsky petitioned the Supreme Court to review the appellate ruling in the Van Orden case and last October, the court announced it would hear the Texas and Kentucky cases together.

"I have nothing but the greatest admiration and respect for him," Chemerinsky said of Van Orden. "He genuinely cares about this issue. He's extremely intelligent and articulate, and I think he did an excellent job of briefing and arguing the case on the trial level and the appellate level. . . . A large Ten Commandments monument sitting between the Texas Capitol and the Texas Supreme Court violates the establishment clause."

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