3/31/2004
The Fraternal Order of Eagles and the War over the Ten Commandments
"Behold, I send you forth as sheep in the midst of wolves," Jesus Christ tells his followers in Matthew 10:16. "Be ye therefore wise as serpents, and harmless as doves." Two millenia after the fact, Alabama Chief Justice Roy Moore took these words to heart, at least in regard to the serpent, and slipped into the state Supreme Court building one late night shortly after his 2000 election. As Coral Ridge Ministries cameras rolled, Moore and supporters installed a 5,300-pound granite monument in the rotunda of the state courthouse displaying the Ten Commandments with other historical documents inscribed on the sides.
Moore first became associated with the Decalogue in the mid-1990s when, as an Etowah County judge, he posted a paper copy of the Commandments in his courtroom. He successfully fought for three years, with the help of Rev. D. James Kennedy and the Alabama Christian Coalition, to keep the modest display posted.
Moore gained a great deal of attention and support with the same sort of radical stubbornness Alabama governor George Wallace defiantly displayed a few decades earlier. In 2000, the brash West Point grad was elected the top judicial officer in Alabama, in part for pledging to bring the Ten Commandments with him. As Moore has fought his much-publicized battle over the last few years (and continues to fight), Ten Commandments displays around the country have fallen into the spotlight in their respective regions. Over the last few years, the ACLU and similar but smaller groups have filed lawsuits in small towns and cities throughout America to remove Commandments monuments from public property.
As Moore awaits a decision in his appeal of his removal as Chief Justice, traveling the country accepting awards from the Constitution Party (there are rumors that he will accept their presidential nomination) and making appearances at Commandments rallies, Decalogue displays everywhere are being removed either voluntarily or by court order. Unlike Moore’s carefully crafted Commandments paean, though, most of the monuments currently subjected to review involve gifts from the Fraternal Order of Eagles made three to four decades ago to hundreds of cities (a recent Reuters article claimed that at least 26 such monuments in 15 states have been moved in recent years under court order or legal threat).
In 1943, a Minnesota juvenile court judge named E. J. Ruegemer hatched a simple plan to save the youth of America, whom he saw as "without any code of conduct or standards by which to govern their actions." Accordingly, the judge concluded that the nation’s juveniles "could benefit from exposure to one of mankind’s earliest codes of conduct, the Ten Commandments." The judge also happened to be the chair of the Youth Guidance Committee of the Fraternal Order of Eagles, a goodwill group formed near the end of the 19th century that today claims as one of its chief accomplishments the advent of Mother’s Day.
The judge’s proposal to post paper copies of the Ten Commandments in juvenile court houses throughout the country was initially rejected by the Eagles. Despite the judge’s stipulation that the Decalogue displays were "not to be a religious instruction of any kind" and were intended only as "recognized codes of behavior to guide and help them," the Eagles leadership expressed concern that supporting the dissemination of the Commandments "might seem coercive or sectarian."
However, their concerns were alleviated when a council of Protestant, Jewish, and Catholic laymen endorsed a version of the Decalogue and the Eagles agreed to sponsor the youth guidance program. As the story goes, it was at this point that movie director Cecil B. DeMille, in the midst of producing the blockbuster The Ten Commandments, caught wind of the plan, contacted Ruegemer and suggested that instead of paper, the Decalogue should be inscribed on bronze plaques. The juvenile court judge countered that since the Commandments, according to biblical tradition, were written on stone, so should these monuments be. With this decision, two local granite companies began crafting displays in the shape of two tablets, paid for and distributed by various Eagle chapters or "aeries" to numerous state and local governments across America. While it is impossible to determine the exact number of monuments produced and installed, it is believed that up to 2,000 were eventually distributed and accepted over the following two decades.
Today, these monuments, which are often grand in size and resemble a giant tombstone, are the subject of most litigation involving Ten Commandments displays. A quick survey of current and recent litigation turned up dozens of cases around the country, the most recent involving a reddish stone installation in front of City Hall that the FOE gave to Duluth, Minn. in 1957. The Minnesota Civil Liberties Union filed suit in the first week of March to remove the display for violating the First Amendment by promoting one religion over another. The MCLU attorney stated that the monument "excludes those people who don’t believe in the Ten Commandments. They may be atheists … they may be Buddhist, they may be Hindu, they may be Muslim." Only days later, the Duluth City Council voted 5-4 to remove the 7-foot-high monument. Neither the crowd of Commandments supporters outside the building nor impassioned speakers inside could dissuade the council from its fears of costly litigation (estimates of $20,000). While there have been a number of offers to house it, no concrete plans have been made for the display’s departure or where the Eagles’ gift will eventually rest. Meanwhile, citizens in support of the monument have raised over $17,000 and collected 2,000 signatures, with 3,000 more needed to put the display on a November ballot.
So far, most monument litigation has met a similar fate. Despite efforts to avoid a legal battle, many challenged cities are drawn into court. As a result, judges are called upon to decide the fate of the Ten Commandments, and nearly all have found that the large monuments serve as state endorsement of religion because of their simple place on public property. Most of the disputed stone slabs are often situated in front of City Hall. In one instance, where the monument was actually allowed to stay, a Texas court took into account the monument’s location near a rarely used side exit.
In that case, a homeless man living in Austin sued for the monument’s removal next to the state capitol building. However, the court ruled in December 2003 that no reasonable person would consider the display a religious endorsement. Donated to the state in 1961 by the FOE, the 5-foot-high granite display was found to have the secular purpose of encouraging youth morality. Contributing factors to the U.S. District Court’s decision included the lack of a state seal or Texas star on the monument. The judge also said that its location—next to a seldom used door and facing away from vehicle traffic—weakened the plaintiff’s claim.
This "victory" illustrates the basic struggle for any Commandments public display. Absent a defiant magistrate, a city must prove its lack of religious intent. As in Austin, an obstructed view can be an important factor. Recently, City Council members in Albert Lea, Minn. pledged to keep a nearly identical monument to the one in Duluth in their Central Park. "I don't see where there's a problem with it being there," one Council member told a newspaper. A second added, "We could use a little more religion in the world." A third seemed more pragmatic. "It really makes no difference to me either way," he said. "I can understand both sides." The paper noted what may very well be more important than resolve for the survival of the monument if the ACLU brings suit. The sizeable slab is partially obscured by a few evergreen trees.
A few cities in the same situation as Albert Lea have tried to avoid removal by selling the patch of land the monument is on to the Fraternal Order of Eagles, thus making the installation private. The FOE donated one of its monuments to Frederick in 1958. For much of its existence, the stone display stood in front of City Hall but was eventually moved to a city park where it was planted among other items like a George Washington plaque and various war memorials. In 2002, the ACLU sought to remove the monument but dropped its suit after the city sold the monument and a parcel of land to the FOE. In 2003, Americans United for Separation of Church and State filed suit against the city and the FOE, challenging the transaction.
Faced with similar litigation, the Casper, Wyoming City Council voted to remove their Ten Commandments monument from City Park in October of 2003 after the Freedom from Religion Foundation asked that it be removed from government property. After long, involved debates, Council members voted 5-4 to move the Ten Commandments to a historic plaza, where they can be viewed as an "integral part of history." Part of the city’s motivation stemmed from the fear that they must also allow other monuments that espouse differing religious or political views. Kansas anti-gay extremist Fred Phelps, head of God Hates Fags, has called for the installation of his own monument (click here to see a larger image) in Casper condemning slain gay student Matthew Shepard.
Rev. Phelps made similar entreaties throughout the West after the Tenth Circuit Court of Appeals ruled in 2002 in Summum v. Ogden that public bodies must accept displays of alternate messages if they continue to keep Ten Commandments monuments on public property. This past fall, the Tenth Circuit refused to reconsider its ruling that constitutional guarantees of free speech require the city to remove the Ten Commandments monument or accept one listing the "Seven Aphorisms" of Summum, a religion founded in Salt Lake City 27 years ago. Summum sued the city in 1999 after it refused to accept a donation of a stone monument listing Summum's tenets. The Ten Commandments monument was donated to the city in 1966 by the Ogden Fraternal Order of Eagles. The ruling prompted the state of Utah to move or remove seven monuments from public property across the state, not only in Salt Lake City but also in Ogden, Murray, Tooele, Roy and Provo.
Similar apprehensions caused Boise, Idaho officials in January 2003 to vote to remove a display of the Decalogue from the City Park and return it to the Fraternal Order of Eagles, which donated it to the city in 1965. The Council made the decision in hopes of heading off Rev. Phelps, whose request to install his monument is set for a hearing before the Council this April 6th. After the Council’s decision to remove the marker, a Keep the Commandments Coalition formed and filed a lawsuit to obstruct the city from removing the monument. On February 11, 2004, a judge for the U.S. District Court denied the coalition’s request and gave the county the freedom to move the monument. The City Council, trying to recoup legal expenses from the Coalition for the costs of litigation so far encurred, moved the 3,000-pond monument on Monday, March 29th, by crane to a nearby Episcopal Church that faces the state Capitol.
Thirteen advocates of the monument, including State Rep. Henry Kulczyk, were arrested before the display's removal. Grandmother and pharmacist Gloria Pfost, facing a possible $300 fine and six months in jail if convicted, remained undeterred. "I would give more than just a fine and time in jail for this," she told The Idaho Statesman. "I would give my right arm, and even more than that."
Outside the Tenth Circuit’s jurisdiction, though, and absent any more federal rulings, courts have generally followed accepted doctrine prohibiting state endorsement of religion. Because the FOE monuments are so conspicuous and typically perceived as tied to one religion, Christianity, many courts have found them in violation of the Constitution. Considering the high profile of Roy Moore’s attempt to install his monument, as well as the increased visibility of religion in contemporary culture, these monuments are likely to come under increased review. The following are additional current or recent cases involving Ten Commandments monuments that were originally donated by the Fraternal Order of Eagles:
Everett, Washington
In September of 2003, 20-year-old Jesse Card filed a $1 suit against the city of Everett, demanding that the Ten Commandments monument in front of the city’s police station be removed (click here to see an image). Arguing that the monument is equal to state endorsement of one religion over another, Card suggested that the Commandments should be moved to the nearby Presbyterian Church or given to the Everett Eagles—the organization that donated the monument to the city in 1959. A decision has not yet been made in the case, but a resolution was recently passed stipulating that the city council "vigorously supports efforts by the city of Everett to maintain its long-standing monument containing the Ten Commandments outside old city hall."
Kansas City, Kansas
In June of 2003, a Commandments monument in front of Wyandotte County Courthouse was moved to a Catholic Church lawn 150 feet away. The local board of commissioners voted 8-0 to move the monument after the ACLU threatened to sue the city if the nearly 40-year-old monument remained. "At a time when we're trying to save money any way we can and lower taxes, it just seems to be a prudent decision to make," said Commissioner Kelley Kultala.
Plattsmouth, Nebraska
In 2002, the ACLU filed suit to remove a monument of the Ten Commandments from City Park. A district court judge ruled against the city of Plattsmouth and ordered the monument removed. Later that year an appeal was filed and on February 18, 2004, the Eighth Circuit upheld the ruling that the monument must be removed.
La Crosse, Wisconsin
The Freedom from Religion Foundation filed a lawsuit against the city to remove a 35-year-old monument from the City Park. Immediately after the suit was filed, the city sold the monument, along with a 440 square-foot plot, to the same organization, the Fraternal Order of Eagles, that had initially donated the display. Terms of the sale required the organization to erect fences and post disclaimers clearly stating that the display and area were privately owned. Despite these measures, a District Court Judge ruled in February 2004 that the monument must be removed from Cameron Park in La Crosse. Following the ruling, the La Crosse common council voted 13-2 to appeal the case to the Seventh Circuit Court of Appeals.
Habersham County, Georgia
In 2003, part-time Baptist minister Bo Turner filed suit against the county of Habersham to remove the display of the Ten Commandments on the county courthouse and a public swimming pool. Turner claimed that as a religious symbol the Commandments had no place in the courthouse. On November 18, 2003, a district court judge ruled that the city must remove the Ten Commandments from the courthouse and a public swimming pool. The Habersham commission voted on February 9, 2004 not to appeal the case and agreed to move the monuments.
Hanover, Pennsylvania
In early February 2004, Americans United for Separation of Church and State threatened county officials with a lawsuit if the Ten Commandments are not removed from Wirt Park in Hanover, York County. County officials are not sure if they can afford a costly legal battle over the monument and have not yet made a decision as to what they should do. Several churches in the area have offered to help pay to have the Commandments moved to their private property. Many townspeople are opposed to the proposed removal from the park and over 10,000 people have signed a petition asking the county to fight the lawsuit. Council members say it could be months before a decision is made.
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RELATED LINKS:
White Paper: Affirming Religious and Traditional Heritage: Constitutional Guidelines for Displaying the Ten Commandments (PDF)
Press Release: Rutherford Institute Assists Arkansas District Judge in Defending Constitutional Display of Ten Commandments in Courtroom
Legal feature: The Law on "The Law": Why Roy Moore Lost
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