by Ted Cruz
In the 1960s, the Civil Rights Movement in America arose from the churches. Its greatest leader, Dr. Martin Luther King Jr., of course, was also Reverend King. He was a Baptist preacher who held an undergraduate degree in Bible studies and a Ph.D. in theology. His speeches and writing constantly appealed to America’s Judeo-Christian religious and moral tradition.
For the past two years, I have twice had the privilege of joining several other bipartisan senators in reading aloud the entire text of Dr. King’s magnificent “Letter from a Birmingham Jail” on the Senate floor. That missive was addressed to “My Dear Fellow Clergymen,” and was a powerful call to action to the church to defend civil rights. He called the church to be not simply “a thermometer that recorded the ideas and principles of popular opinion,” but rather “a thermostat that transformed the mores of society.”
And Dr. King’s historic “I Have a Dream” speech, given on the steps of the Lincoln Memorial, is as powerful a Christian sermon as ever delivered, worth quoting at length:
I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident: that all men are created equal.”
I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.…
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.…
I have a dream that one day every valley shall be exalted, every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight, and the glory of the Lord shall be revealed, and all flesh shall see it together.
This is our hope. This is the faith that I go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.
This will be the day when all of God’s children will be able to sing with a new meaning, “My country, ‘tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim’s pride, from every mountainside, let freedom ring.”
And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, “Free at last! free at last! thank God Almighty, we are free at last!”
Read those words again, dwell upon them and hear Dr. King’s powerful cadence echoing through history, and then try to imagine arguing that it is the Supreme Court’s job to ensure that we keep God out of the public square. In doing so, we deny our country’s profound history and legacy of protecting religious liberty, diversity, and faith.
* * *
Our story begins with a landmark religious liberty case that I had the privilege of litigating before the Supreme Court: Van Orden v. Perry. And, curiously enough, it begins at the movies.
Cecil B. DeMille was one of the founding fathers of American cinema. In inflation-adjusted terms, he is the most commercially successful producer-director in Hollywood history. In 1956, his epic Charlton Heston film “The Ten Commandments,” which was nominated for an Academy Award for Best Picture, opened across the country. It was DeMille’s final film, and perhaps his best known.
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 s
uccessful. 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 judges took mercy on me and laughed nonetheless.
The Fifth Circuit ruled, and we won unanimously. Van Orden then filed a petition for a writ of certiorari with the Supreme Court. A “cert petition,” as it is commonly called, is a formal request for the Supreme Court to review the decision of the lower court. Because the Supreme Court has what’s called a discretionary docket, it gets to pick most of the cases it will hear (there are only a handful of mandatory exceptions). To grant cert and hear the case requires the affirmative vote of four of the nine justices.
At that point, we had a strategic decision to make. And the decision tree we were facing was fraught with peril. Normally, the default position for anyone in our litigating position would be to oppose cert, for a simple reason: If the Court denies cert and you won below, then the case is over. You can take your victory home. And usually, the odds are with the side who opposes cert. Every year, the Supreme Court receives about 8,000 cert petitions, and it only grants about 80 (roughly 1 percent) of them.
But we were in a unique situation. I sat down with my boss, Texas Attorney General Greg Abbott, and we discussed the state of First Amendment law as it relates to these public displays of the Ten Commandments. Both of us were well aware that liberal activist judges across the country had been ruling against Ten Commandments monuments over and over again.
Whenever the Supreme Court considers a cert petition, the primary thing the justices look for is a “circuit split,” where multiple federal courts of appeal have considered the same question of law and ruled differently. The idea is that, to the extent possible, the law in the federal courts should be uniform across the country. So when there’s a split, that is a major reason for the Supreme Court to grant cert and resolve the issue for all the federal circuits.
On the issue of these Ten Commandments–monument displays, and on the issue of the Fraternal Order of Eagles monuments in particular, there was a real and live circuit split, which meant that if we succeeded in getting the Court not to take our case, the odds were high they would choose to grant cert on another Ten Commandments monument case shortly thereafter.
Given the depth and breadth of the split, I thought that the Court was on the verge of taking a Ten Commandments case. Moreover, I thought our case had the best facts to win. We had litigated the case carefully, with an eye toward ultimately prevailing before the Supreme Court. We did not have many of the “bad facts” that many of the other cases had, which amounted to politicians saying stupid things on the record that made defending the monument much harder.
Since our fact pattern was so much better, I believed that our case was the best case to reach the Court. If a worse case made it to the Supreme Court, those bad facts would potentially produce a binding national result, and the bulldozer would not be far behind in coming for our own Ten Commandments monument in Austin.
So I urged General Abbott to do something unusual: acquiesce to the cert petition. We told the Supreme Court we agreed that the split was real, wide, and deep, and that the issue was important. So we said that, if the Court were inclined to grant a case on Ten Commandments monuments, then this case presented an ideal situation to grant cert and affirm a permissible display of the Ten Commandments.
This course of action entailed risk because if the Supreme Court took the case and we lost, both Attorney General Abbott and I would have faced considerable criticism for acquiescing to the Court’s granting cert to begin with.
But I thought about what the great ancient Chinese military general Sun Tzu once taught: every battle is won before it’s fought. It’s won by choosing the terrain on which it will be fought. And our case presented the best terrain on which this particular legal issue could ever be fought.
The Supreme Court did end up granting cert. And at the same time, it granted cert in another Ten Commandments–monument case, McCreary County v. American Civil Liberties Union, coming out of Kentucky. The Court scheduled both cases’ oral arguments for the same day.
As it turned out, the lawyer representing Van Orden at the Supreme Court was one of the most acclaimed liberal constitutional scholars in the country, Erwin Chemerinsky. Chemerinsky is the current dean of the University of California, Berkeley School of Law, and he was formerly the founding dean of the University of California, Irvine School of Law. He represented Van Orden pro bono, which means for free. Over the years, I’ve gotten to know Chemerinsky quite well, and he and I have debated each other on questions of constitutional law multiple times. He’s brilliant and very much a man of the left.
The Supreme Court’s jurisprudence on religious displays in public is complicated, to say the least. As discussed, the Court has applied multiple and often conflicting standards, and for more than twenty years the Court’s religious-liberty jurisprudence often seemed to hinge on whatever Justice Sandra Day O’Connor deemed appropriate on any given day. On religious liberty, she was the quintessential swing vote, capable of going in either direction in almost any case. It was very hard, sometimes impossible, to reliably predict how she would rule.
In writing our Supreme Court brief, I spent hundreds of hours poring over Justice O’Connor’s Establishment Clause jurisprudence. Throughout our brief, we incessantly cited O’Connor and the standard(s) she had advocated. Indeed, I joked that I wanted “O’Connor, J.” to be the most frequent words in our brief—more common than “and” or “the.” A lawyer in my office asked if it was possible to be too obsequious to O’Connor in this case, and I replied, tongue in cheek, “No—if we could possibly put an oil painting of Justice O’Connor on the cover of the brief, we should do it.”
Context and case-specific facts clearly mattered a great deal in O’Connor’s jurisprudence. But Chemerinsky, for all his academic renown, did not put in the legwork necessary to accurately describe the facts of our case. Chemerinsky’s brief described the monument as towering before the Capitol and as the “lone” religious symbol to be found on the Texas State Capitol grounds. He described a “large,” “uniquely prominent” religious monument, “in front” of the Capitol “on the Great Walk,” situated “by itself” so that “no other monuments [are] visible when standing before it.”
Every element of that description was false. The monument is one of the smallest on the Capitol grounds, is in back of the Capitol, and is surrounded by six other visible monuments. Numerous other monuments contain religious references, and what Chemerinsky erroneously described as “the Great Walk” (which leads to the main entrance found on the front side of the Capitol) is, in fact, a driveway on which Capitol staff park their cars.
Religious references on other monuments on the grounds include a
statue of a young girl wearing a Cross in the Tribute to Texas Children, the words “God - Country - Peace” on the Veterans of World War I memorial, and the Aztec symbol of the eagle on a cactus. The latter is part of the Mexican flag, which appears multiple times across the Capitol grounds. In the center of the Mexican flag is a brown eagle eating a serpent, while perched on a prickly-pear cactus growing from a rock surrounded by water. The Aztecs believed that their leaders were given this image in dreams by the Sun God Huitzilopochtli, as the site where they should found their theocratic capital Tenochtitlán. Founded in 1325 A.D. on a marshy island in Lake Texcoco, the city is the present-day site of Mexico City.
And, almost directly above the Ten Commandments monument, atop the Capitol dome, is the Goddess of Liberty. She stands nearly 16 feet tall and weighs 2000 pounds, and she likely represents Pallas Athena, the Greek goddess of wisdom and justice, who served as the protectress of the democratic city-state of Athens.
Close attention to detail is a hallmark of any good lawyer. But sometimes, when law professors litigate cases, they don’t put in the mundane effort to understand the facts on the ground. As I responded in our brief, Professor Chemerinsky’s brief was so far removed from the actual state of affairs at the monument that it could only have been written by someone who had never physically been there.
In our brief, we corrected those misrepresentations, which helped the Court get a fuller and more accurate assessment of the context of the monument.
Then we began preparing for oral argument. As solicitor general, it was typically my job to argue our cases before the Supreme Court. But my boss, Texas attorney general and future Governor Greg Abbott—a strong mentor and a good friend to this day—had made clear when I started that he wanted to argue a Supreme Court case.
Over the past century, some state attorneys general argued all of their state’s cases before the Supreme Court. Others would allow whatever career attorney happened to litigate the trial case to argue the Supreme Court case. Neither approach has proven a good one. Most attorneys general are politicians first, not appellate lawyers. And many line lawyers in AG offices are trial lawyers with little or no appellate experience. Either way, Supreme Court advocacy for the states suffered badly, and in the last couple decades that led to the rise of state solicitors general across the country.