Decision looms in First Amendment case over 10 Commandments monument at Arkansas Capitol

A decision must wait in the long-running case over whether the 10 Commandments monument at the Arkansas State Capitol violates the First Amendment. 

U.S. District Judge Kristine Baker on Friday entertained a full-day of arguments about the display from lawyers in the Arkansas attorney general’s office and for the many plaintiffs and intervenors who oppose the installation.

Baker said she would take the sides’ written briefs and oral arguments under advisement and issue a ruling at a later date.

The case could have national implications. It has the potential to bring more clarity to the law surrounding the Establishment Clause, which became murkier last year after a U.S. Supreme Court decision upended long-standing precedent in a case involving a high school football coach who led players in post-game prayer.

Supporters of the monument argue that the 10 Commandments played a critical role in the development of U.S. law and national history, pointing to similar monuments that have been allowed to remain in other states.

Opponents argue that the context around Arkansas’ 10 Commandments monument is different and it is an example of government favoring one religion over others. Additionally, Satanists’ efforts to put a statue of Baphomet, a winged deity with the head of goat, on the Capitol grounds were rebuffed.

“Ultimately, the General Assembly has proclaimed citizens should have no other God but the Christian God in direct defiance of the Bill of Rights,” said Sam Grover, an attorney for a group of those challenging the monument. 

The Arkansas Legislature passed a law in 2015 allowing the erection of the 10 Commandments, and the first monument was installed in 2017.

In less than 24 hours, a mentally ill man toppled the monument with his vehicle. 

A new monument — protected by concrete bollards — was installed in 2018 between the Capitol building and the Arkansas Supreme Court building, where it remains today. 

Several groups quickly filed federal lawsuits for the removal of the monument, and those efforts have been combined into one lawsuit, now in its fifth year.

The plaintiffs include an exercising group that complains it must pass the monument regularly while walking or cycling; the Arkansas Society of Freethinkers; The Satanic Temple; and a rabbi.

Michael Cantrell, Arkansas’ assistant solicitor general, pointed repeatedly to the 2005 Supreme Court decision in Van Orden v. Perry that allowed a 10 Commandments monument, similar to the one in Arkansas, to remain at the Texas State Capitol.

The plaintiffs’ attorneys countered that the Texas monument had stood for decades without challenge and fit into a broader, secular pattern of exhibits at the Texas Capitol displaying important ideals to the founding of Texas. 

Conversely, they said Arkansas’ 10 Commandments monument stands out from the other monuments on Capitol grounds, which mostly commemorate soldiers in foreign wars, first responders or specific historical events.

Much of Friday’s debate centered around how Baker should apply the case of the Washington High School football coach — Kennedy v. Bremerton School District — which created a new standard for evaluating Establishment Clause cases. 

Instead of using the three-prong Lemon test, named after the 1971 case, Lemon v. Kurtzman, courts should instead look at national history and the intent of the Founding Fathers, U.S. Supreme Court Justice Neil Gorsuch wrote for the majority in Kennedy.

Baker, in questioning Cantrell, hinted at the new challenges the Kennedy ruling created. The presence of 10 Commandments monuments on public property in the U.S. only goes back to the 1950s.

Baker asked if that was far enough? Or should she go farther back to the 18th century when the U.S. Constitution was drafted?

As Andrew Shultz, an attorney for the lead plaintiff in the case, put it: 

“Open questions abound.”