Another Texas Hero: Thomas Van Orden

Cecil B. DeMille made his final blockbuster religious film in 1956. Evidently the box office receipts weren't bringing any smiles to the suits at Paramount Pictures, so Cecil B. hatched a scheme with the Fraternal Order of Eagles. The Eagles were inspired by a MN juvenile court judge named E.J. Ruegemer. Judge Ruegemer encountered a delinquent boy in his court in 1946 who didn't know anything about the Ten Commandments. Judge Ruegemer had the idea of printing up copies of the Decalogue for courtrooms and classrooms. His project was taken up by the Fraternal Order of Eagles. In collaboration with the Eagles, Cecil B. donated 4,000 facsimiles of the stone tablets that Moses — uh, Charlton Heston — carried down off Mount Sinai in "The Ten Commandments." One of Demille's donated monuments made its way to the Texas Capitol grounds. Cecil B. was not exactly imbued with religious faith in the monument scheme. He sent Charlton Heston (Moses/Voice of God) and Yul Brynner (the Pharoah Rameses) out to the hustings to dedicate these religious "gifts." Of course, every local news story mentioned the film and the visiting celebrities. Box office receipts took off from there. This was the tawdry, hypocritical beginning of the DeMille/Order of Eagles monuments. Now, Thomas Van Orden, Esq. is confronting power with truth. If this is (fair & balanced) iconoclasm, so be it.

[x Austin Chronicle]
Thou Shalt Not Sue?
BY Dave Mann

A homeless Austin lawyer takes God, Moses, and the state of Texas to court

Thomas Van Orden's fantasy goes something like this: His legal crusade against the Ten Commandments monument at the state Capitol (in his view, an unconstitutional state endorsement of religion) reaches the U.S. Supreme Court, as it just might. And he becomes the first person to sleep in a D.C. homeless shelter the night before arguing First Amendment law before the nation's highest court.

It's a cloudy afternoon in late October, and Van Orden — a now-homeless former criminal defense attorney, with sharp mind and spry wit, surely one of the federal court system's most unusual plaintiffs — is sitting on Central Market's patio munching bagels and pondering the possibilities. He thinks for a moment and revises the scenario. Scratch the shelter. Maybe he'll just camp out on the Supreme Court steps. "Or maybe," he says with a wry smile, "in the Lincoln Bedroom."

Forgive Van Orden for dreaming about the light at the tunnel's end; many obstacles stand between him and the steps of the Supreme Court. Not the least of which is that he can't get there, unless the UT shuttle drastically alters its routes. Even before he gets to Washington, Van Orden must find a way to New Orleans early next year to argue before the U.S. 5th Circuit Court of Appeals, if that court decides to hear his case. And before that, he needs to find $30 to photocopy his appellate brief for the 5th Circuit. As Van Orden has discovered, pushing an Establishment Clause case through the federal courts presents unusual challenges for a destitute, homeless man.

But, as Van Orden is quick to point out, he has one overwhelming advantage that his legal opponent, the Texas Attorney General's office, can't understand or appreciate: He has nothing to lose. "What can you do to a guy who sleeps under a bush?" he asks. "Take away his bush? I just do what I can do today and don't worry about tomorrow. If I get to something I can't overcome, then at least I had fun doing it."

Ripe for Resolution

Van Orden wasn't deterred when his suit stumbled in U.S. District Court in October. Senior U.S. District Judge Harry Lee Hudspeth sided with the state of Texas, ruling that the 41-year-old Ten Commandments monument's placement on government property does not violate the First Amendment. Van Orden dismisses Hudspeth's opinion as flat wrong, and some of the better legal minds in the country agree with him. So Van Orden filed a notice of appeal with the 5th Circuit on Oct. 26 and plans to submit his brief in the next few weeks. He is now aided by two UT law students who have joined his cause, easing the workload on Van Orden, who so far has done everything himself.

If the 5th Circuit rules against Van Orden (assuming he can get to New Orleans to argue his case), he says he will appeal to the Supreme Court. While such a ruling from the conservative 5th Circuit (which covers Mississippi, Louisiana, and Texas) wouldn't be surprising, the Chicago-based 7th Circuit has already ruled twice against Ten Commandments monuments on public property in Indiana, and the 10th Circuit, based in Denver, has likewise ruled in a Utah case that the tablets must go. A contrary ruling by the 5th Circuit would make the issues raised by Van Orden ripe for resolution by, and thus more attractive to, the Supremes.

Ten Commandments displays adorn hundreds of state capitols, government buildings, and courthouses all over the country. Van Orden, perhaps inadvertently, has entered a national fight between groups such as the American Civil Liberties Union and a loose Religious Right movement, led by people such as Jerry Falwell, Pat Robertson, and Rob Schenck, pushing for government endorsement of the Ten Commandments. The latter crew's current darling is Roy Moore, the once-obscure Alabama judge who rode the notoriety over his homemade courtroom Ten Commandments plaque to election as chief justice of the state's Supreme Court. He then surreptitiously installed a gaudy one-ton Ten Commandments stone monument in the courthouse lobby in Montgomery and has now defied orders from the federal bench to remove it
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Comes Now the Plaintiff

The 58-year-old Van Orden only grudgingly discusses his lifestyle and flatly refuses to speak of his past, which clearly includes incidents he's not proud of. Yes, he's clean. He usually wears slacks, a buttoned-down shirt, and black sneakers. His gray hair is neatly parted. From looking at Van Orden, the only indication that he's homeless comes when he smiles and shows teeth that have seen better days. He is tall and skinny and looks like a guy who might sell you a refrigerator at Sears.

Van Orden was born in East Texas and, according to State Bar of Texas records, received his law degree from Southern Methodist University in 1970. Van Orden says he served in the military in 1971 and 1972, first in California, writing wills for soldiers headed to Vietnam. He was then ordered to Vietnam himself as a helicopter door gunner but instead gained a transfer to a Judge Advocate General office. After his discharge, Van Orden practiced criminal defense law in Houston and Dallas. He also married. He will discuss none of this.

In 1993, Van Orden divorced and moved to Austin, where, again according to State Bar records, he practiced at 603 W. 13th. At one point, according to state records, Van Orden was hired and paid by a client to incorporate a business, which he never did. For that violation of ethics, and for failing to pay attorney and court fees, the State Bar suspended his law license on Dec. 18, 1995, for 48 months, 45 months of it probated. After serving his three-month suspension, Van Orden apparently returned to work but was disciplined again by the State Bar on Dec. 31, 1999, for continually failing to pay fees and "report to the general counsel." Van Orden's initial probation was revoked and his license suspended for 45 months. He will be eligible to practice again next Sept. 30, but he says he will never work as a criminal defense lawyer again — "I went through a real hard period and I'm not going back there."

After losing his license, Van Orden tumbled into abject poverty — though, again, he won't be specific about the circumstances. He has been homeless since 1999. He sleeps in a secluded, wooded patch in a nice Austin neighborhood (he won't identify the area for fear police will run him off) where he stores possessions and bedding. Once every two weeks, he heads to the Austin Resource Center for the Homeless, where he showers, checks his PO Box, and signs the waiting list to use one of the four available washing machines. While he waits, he sits with four friends, one of whom he says attended Columbia University, and completes The New York Times crossword puzzle. It usually takes all day to get a washer and finish his laundry. "You're so glad when you're out of there," he says.

Van Orden spends the rest of his days in the UT law library or at the Texas State Law Library west of the Capitol, reading civil rights case law, working on his lawsuit, checking his e-mail, and feeding his addiction to Internet chess. "As you can imagine, I'm happy when I get to the library in the morning," Van Orden says. "The ordeal of the night is over, and I'm back in a nice environment doing something I enjoy."

Squeezing the Lemon Test

Last fall, Van Orden read the 7th Circuit's ruling that the Ten Commandments monument at the Indiana Capitol was unconstitutional. That got him thinking about the Texas monument, which the Fraternal Order of Eagles donated to the state in 1961; after further researching case law, Van Orden filed his suit in February; Hudspeth heard oral arguments in August. The Eagles are the source of many such monuments around the country, including those at issue in the cases before the 7th and 10th Circuits. The Eagles' campaign started in 1955, with a Milwaukee monument, at the behest of Cecil B. DeMille, who was looking for PR for his epic Ten Commandments. (Yul Brynner did the dedicating.) That first Eagles monument has now been removed, pursuant to the 7th Circuit ruling.

But the federal District Courts have delivered mixed rulings on cases involving the Ten Commandments in a variety of settings; the Supreme Court refused to hear the Indiana Capitol case and has passed on other recent chances to weigh in. The long-established Supreme Court precedent on Establishment Clause issues dates back to 1971's Lemon v. Kurtzman, when the court ruled that a monument on government property must have a clear secular purpose. (See "Supreme Entanglements," p.30 for more details.) The thrust of Van Orden's argument is that the monument at the Capitol doesn't pass the Lemon test.

The state of Texas, like many defendants in such cases, has countered that, while the Ten Commandments are religious, the monument's purpose isn't religious, but rather a celebration of a secular moral code that has greatly influenced Western law. A spokesman for Deputy Attorney General Jeff Boyd, who handled the case, said the AG's office couldn't comment on ongoing litigation.

Van Orden concedes that six of the commandments can be read as secular moral code -- "Thou shall not steal" and so forth -- but the other four are distinctly Judeo-Christian, including commands to worship no other god, respect the Sabbath, and not build idols. And, across the top, the monument reads, "I AM the LORD thy God." Says Van Orden, "What are they talking about there? We know where that text came from. It's not any god. That one's got a name. It's not only religious, it's sectarian. It's Jewish-Christian."

Judge Hudspeth didn't agree, however, ruling that the monument had a secular intent. He noted in his ruling that no one had complained about the Texas monument in the 41 years it's been on display, leading him to conclude that a "reasonable person" wouldn't view its intent as religious, a benchmark of the Lemon test. Van Orden counters that many people have written letters of complaint to the state over the years, some of which were included in case briefs.

A "Ridiculous" Ruling?

Van Orden speculates that Hudspeth misconstrued a statement by the AG attorneys that no one had "attacked" the monument, meaning no one had ever before filed suit. UT law professor Douglas Laycock, a nationally recognized expert on First Amendment law and religion, terms elements of Hudspeth's ruling "ridiculous," adding that on principle, the monument violates the Establishment Clause.

Van Orden, meanwhile, insists quite passionately that he's not against religion, just government involvement in it. "I didn't sue the Ten Commandments," Van Orden says. "I didn't sue Christianity. I sued the government. You're the government, stay out of [religion]." Yet he's received no offers of help from the ACLU or any like-minded organizations, and Van Orden says at this point he doesn't want it. He thinks he and his two student assistants can handle the case, and looks forward to the challenge of arguing before the conservative 5th Circuit. "It's like I'm appealing to the damn Southern Baptist Convention down there."

Laycock thinks Van Orden's chances will hinge on which judges Van Orden draws from the 5th Circuit. (Typically, federal appellate cases are heard by three-judge panels drawn from the many judges appointed to each circuit bench.) He also doubts the Supreme Court would take the case, despite the opportunity it might give to resolve conflicting lower-court rulings. "I don't think they want to spend their credibility on this issue," he said. Laycock admitted he'd never heard of a plaintiff quite like Van Orden.

For his part, Van Orden says he doesn't see why people see his situation as interesting. "I don't sleep under a bush because that's what I want to do," he says, adding that if someone offered him a job, he would take it and get a place to live. "But that's not going to happen, and I'm not going to go begging people."

He'd also like to shed the "homeless lawyer" label — he's getting quite sick of it. "They don't call Rick Perry a 'housed governor,'" he says. But, a few minutes later Van Orden hints that the label might not bother him quite so much. "Can you believe a guy who sleeps under a bush every night can sue the governor of Texas? Only in America."

Dave Mann is a staff reporter for The Texas Observer and writes on politics for the Austin Chronicle.

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