Fight against US religious imperialism

The Hindu American Foundation (HAF) spearheaded the filing of an amicus curiae (friend of the court) brief with the United States Supreme Court in a case involving the placement of a permanent monument of the Ten Commandments on government property. HAF is a non-profit, non-partisan organisation promoting the Hindu and American ideals of understanding, tolerance and pluralism.

The brief, filed December 13, 2004 in one of the most widely anticipated cases being heard by the US Supreme Court this year, supports the position that the monument violates the separation of church and state guaranteed by the First Amendment of the US Constitution. HAF garnered the support of nine co-signatories to file the brief on behalf of the millions of Hindus, Buddhists and Jains in the United States. The HAF brief is perhaps the first to provide a non-Judeo-Christian perspective to this issue. The case originally brought by Thomas Van Orden against Rick Perry, the Governor of Texas, in 2003, asks for the removal of a Ten Commandments monument from Texas State Capitol grounds. The US Supreme Court decided to hear the case after the Fifth Circuit Federal Court of Appeals ruled that the monument could remain in place.

The 34 page brief was signed by HAF, Arsha Vidya Pitham, Arya Samaj of Michigan, Hindu International Council Against Defamation, Hindu University of America, Navya Shastra, Saiva Siddhanta Church, Federation of Jain Associations in North America, Interfaith Freedom Foundation and prominent Buddhist scholar and director of Tibet House, Professor Robert Thurman. “The brief makes it clear that the co-signatories regard the Ten Commandments with utmost respect,” said Suhag Shukla, Esq, legal counsel for HAF. “But the overtly religious monument is a blow to pluralism, and its prominent presence on Texas Capitol grounds implies political and social exclusion of Hindus, Jains and Buddhists alike. The district and appellate courts failed to consider the effect of the monument on those adhering to non-Judeo-Christian faiths.”

A team of attorneys from Goodwin Procter LLP prepared the amicus brief on a pro-bono basis working hand in hand with HAF and the other organisations that participated. HAF’s contact at Goodwin Procter was Aseem Mehta, Esq. Mr Mehta has worked with HAF in the past on matters related to intellectual property. “The Supreme Court’s decision in the Van Orden case will directly impact Hindus and others,” said Nikhil Joshi, Esq, a member of the HAF board of directors. “A permanent display of the Ten Commandments on the State Capitol grounds implies an unconstitutional preference for those precepts etched on the monument.” The Ten Commandments are a cornerstone of Judeo-Christian theology, the brief argues. “The courts below (Federal Court of Appeals) completely ignored the effect of the Ten Commandments monument on non-Judeo-Christians, whose beliefs regarding the nature of God and the relationship between man and God differ greatly from those enshrined in the monument and for whom the monument is clearly and unavoidably ‘sectarian.’”

In separate sections, the brief elaborates how the Hindu concepts of panentheistic monotheism, the omnipotence and omnipresence of God and the use of consecrated images in worship directly conflict with specific Commandments. Similarly, the Jain and Buddhist concept that there is no creator/controller, God is shown to be irreconcilable with the premise of the Commandments, “...that a separate divine entity has handed down Commandments as a king might set rules for his subjects.” The maintenance of the Ten Commandments monument on the grounds of the Texas State capitol violates the establishment clause because the monument is inherently religious, serves no historic purpose, and does not lose its religious character through juxtaposition with secular images. It depicts the Ten Commandments, a cornerstone of Judeo-Christian theology, in the traditional shape of the “Biblical Stones.”

Non-Judeo-Christians, including Amici, perceive the placement of such a monument on the grounds of the Texas Capitol as an endorsement of Judeo-Christian beliefs over their own. The maintenance of the monument therefore has the primary effect of advancing the Judeo-Christian beliefs to which a majority of Texans subscribe. In reaching a contrary conclusion, the lower courts committed two principal errors. First, they concluded that the Ten Commandments monument was “non-sectarian” simply because it favoured no Judeo-Christian sect or denomination over any other. The courts completely ignored the effect of the Ten Commandments monument on non-Judeo-Christians, whose beliefs regarding the nature of God and the relationship between man and God differ greatly from those enshrined in the monument and for whom the monument is clearly and unavoidably “sectarian.” By ignoring the effect of the monument on non-Judeo-Christians, they disregarded the requirements of the court’s establishment clause jurisprudence.

Second, the lower courts relied heavily on the forty years the monument stood without challenge on the grounds of the Texas Capitol. The establishment clause is a bedrock constitutional limitation on the power of government and a violation of that limitation should not be counternanced simply because no one has complained for over forty years. Many of the court’s establishment clause decisions struck down state sponsored religious practices — mandatory school prayer, for example — that had been observed far longer than forty years. Moreover, the inference drawn by the lower courts that the absence of complaint evidences the inoffensiveness of the monument overlooks the historically tiny population of non-Judeo-Christians in Texas — a population that has reached significant numbers only in recent years.

With the recent increase of religious diversity, in both Texas and the nation as a whole, comes a host of establishment clause issues that would never before have come to the fore. The Fifth Circuit’s reliance on the historical absence of challenge during a period of much greater religious homogeneity effectively allowed majoritarianism to trump establishment clause requirements. Amici respectfully submited that the lower courts reached the wrong conclusion in part because they failed to properly consider the effect of the Ten Commandments monument on those who do not adhere to Judeo-Christian religions.