In an odd twist of fate, the fallout of this film, released fourteen years before I was born, led to one of my most meaningful Supreme Court cases.
Nearly a decade earlier, in 1947, Minnesota state juvenile judge E. J. Ruegemer was presiding over the case of a troubled young man who had stolen a car and struck and injured a priest walking alongside the road. The prosecutors argued for sending him to the boys’ reformatory in nearby Red Wing, but the judge decided instead to sentence the boy to studying and learning the Ten Commandments. That, in turn, sparked an idea for the judge, who was dismayed by what he saw as the deterioration of morals and character among young people at the time. (It’s amazing how some things never seem to change.)
Judge Ruegemer teamed up with the Fraternal Order of Eagles, a national service organization of which he was a member. Over the decades, the Eagles have had seven members who went on to serve as president: Teddy Roosevelt, Warren G. Harding, Franklin D. Roosevelt, Harry S Truman, John F. Kennedy, Jimmy Carter, and Ronald Reagan. Judge Ruegemer suggested the Eagles work to post the Ten Commandments in public spaces across the nation, so that young people might read and reflect upon them. As the judge put it, “it does society good to have reminders of right and wrong in public places.”
In 1951, the Eagles began distributing framed copies of the Ten Commandments to courthouses and schools in Minnesota. By 1953, the program had expanded nationally.
Then, Cecil B. DeMille got wind of it. A consummate marketer, DeMille called Judge Ruegemer and suggested that the Eagles produce more permanent monuments, bronze plaques of the Ten Commandments. Ruegemer raised the ante, suggesting that they instead use Minnesota granite to produce giant tablets, modeled after the stone tablets Moses (and later Charlton Heston) carried down from Mount Sinai.
DeMille was thrilled. If the Eagles would raise the money and distribute the monuments, DeMille and Paramount Pictures would provide Hollywood glamour, sending Heston or Yul Brynner (Rameses) or Martha Scott (Moses’s mother) to speak when the monuments were erected.
Initially, the exact text of the monument posed some challenge. The precise wording of each commandment depends on the one’s faith. So the Eagles brought together a committee composed of a Protestant minister, a Catholic priest, and a Jewish rabbi to collaborate and agree on the language to be used.
The Eagles presented their first Ten Commandments monument to the City of Chicago at its 1954 Grand Aerie Convention. Over the course of the next five decades, they erected hundreds of Ten Commandments monuments all over the nation, in parks and libraries, at courthouses and state capitols and city halls. Virtually all of the monuments were identical, standing six foot, three inches tall, and three foot, six inches wide; their last monument was erected at Vergennes, Vermont, in 2010.
In Texas, our Eagles Ten Commandments monument was erected in 1961. The Eagles dedicated it “to the Youth and People of Texas.” It stands just outside the State Capitol, as one of the seventeen monuments and twenty-one historical markers on the twenty-two-acre grounds that commemorate the “people, ideals, and events that compose Texan identity.”
For over four decades, the monument stood and caused no discernible fuss or consternation. For over forty years, Texas legislators, state employees, and civilian passersby alike enjoyed the monument while meandering across the idyllic Capitol grounds.
Enter Thomas Van Orden, a bright man who went to college and graduated from SMU Law School. After falling on hard times and becoming homeless, Van Orden spent considerable time walking the Capitol grounds in Austin. One day, he spied the Texas monument, and a lawsuit was born.
Van Orden, you see, is an atheist. He believes there is no God, and it offended him to see the Ten Commandments acknowledged on public grounds.
Van Orden was hardly unique in his alleged grievance. Across the country, for decades, there has been concerted litigation against the public display of the Ten Commandments. Over and over again, individual litigants, often coordinated or funded by the ACLU, have brought cases seeking to remove the physical display of the Ten Commandments from public view.
And, unfortunately, in 2001 at the time of Van Orden’s lawsuit, most of these Ten Commandments–monument challenges had been successful. Typically, when state or local governments defended these monuments, they lost. This was the manifestation of years of liberal judges’ being appointed to the bench and adopting a jurisprudence deeply hostile to public acknowledgements of America’s Judeo-Christian religious tradition.
In Texas, thankfully, our litigation record was different. The Texas attorney general’s office was charged with defending the lawsuit and, in the federal district court, we won: the court rejected Van Orden’s claims.
On appeal, before the New Orleans–based Fifth Circuit Court of Appeals, I argued the case before the three-judge panel. And, during the course of argument, I committed one of the cardinal sins that, when I was teaching Supreme Court litigation at the University of Texas Law School, I would regularly urge my students never to commit.
I attempted humor in the course of the argument. As I described the history of drafting the text of the monument, I explained that the Eagles’ committee had consisted of a priest, a minister, and a rabbi. Judge Edward Prado interrupted and said, “this sounds like the beginning of a joke.” To which I responded, “Yes, your honor, but in this case no one walked into a bar.”
There’s a reason you don’t tell jokes at oral argument. As a general rule, it’s the province of the judges to tell jokes and the province of the lawyers to try to make their case. But I got lucky: the
