Federal judge does not rule on motions for summary judgment in Ten Commandments case

Judge yet to rule on call for removal of Capitol monument

The 10 Commandments Monument resides on the Arkansas State Capitol grounds Saturday, July 1, 2023 in Little Rock.
(Arkansas Democrat-Gazette/Staci Vandagriff)
The 10 Commandments Monument resides on the Arkansas State Capitol grounds Saturday, July 1, 2023 in Little Rock. (Arkansas Democrat-Gazette/Staci Vandagriff)

U.S. District Court Judge Kristine G. Baker did not rule from the bench Friday on a summary judgment in the lawsuit over theTen Commandments monument located at the Arkansas State Capitol.

Baker spent Friday hearing arguments from the three plaintiff parties and the state's defense regarding their motions for a summary judgment in the case -- Cave et. al. v John Thurston -- that has lasted almost five years.

Motions for summary judgment were filed on March 6 by attorneys for the three sets of plaintiffs and the office of Arkansas Attorney General Tim Griffin representing Secretary of State Thurston in the matter.

The lawsuit was originally filed against then-Secretary of State Mark Martin on May 23, 2018. On June 25, 2018, it was merged with a similar lawsuit, Orsi et al. v. Martin, which was filed the same day. Cave was filed by members of a walking and cycling club -- with Donna Cave named as the lead plaintiff -- who pass the monument regularly and are supported by the American Civil Liberties Union of Arkansas. Orsi was filed by people representing a variety of religious viewpoints, led by the president of the Arkansas Society of Freethinkers.

Both lawsuits contend that the monument violates the First Amendment by establishing governmental preference of one religion above all others. On Dec. 17, 2018, Baker granted a motion to intervene by The Satanic Temple, located in Salem, Mass.

The motions filed earlier this year by the Cave and Orsi plaintiffs asked that the Ten Commandments monument -- which was a result of Act 1231 in 2015 -- be removed, while The Satanic Temple motion asked that the monument either be moved and its statue of Baphomet -- a part-man, part-goat deity who is seated and accompanied by two smiling children -- be installed in its stead for the same duration as the Ten Commandments statue or that the Baphomet statue be installed in a location on the State Capitol grounds to be determined by the parties if the Ten Commandments statue is allowed to remain.

Baker heard arguments in the order that each party submitted their motions. Sam Grover, of the Freedom from Religion Foundation, spoke for the Orsi plaintiffs. Andrew Schultz, an attorney with the Rodey Law Firm in Albuquerque, N.M., and a law professor with the New Mexico School of Law, represented the Cave plaintiffs. The Satanic Temple was represented by its chief counsel, Matt Kezhaya.

"Consolidated plaintiffs urge this court to look to the relevant evidence, including legislative history, and conclude that the General Assembly meant what it wrote in Act 1231, that it intended to erect a monument commemorating the Ten Commandments themselves not some higher concepts like law," Grover said. "This intention to erect a monument to specific favored religious beliefs was publicly professed by bill's leading sponsor ... and it's been well understood by the public since day one of the monument's existence."

A portion of Schultz's argument centered on a lack of context around Arkansas' Ten Commandments monument compared with other displays across the country.

"There is nothing to explain why it's there," Schultz said. "There's nothing to explain its purpose. There's nothing that provides any information about that monument, either at the Arkansas State Capitol, or in any official publication put out by the secretary of state and, as the District Court in the Eastern District of Kentucky ruled in ACLU vs Garrard County (2007), a display that sets out the text of the monument standing alone, not part of an arguably secular display, can only send one message. And there is no record in this case, your honor, that there is any overall theme to the monuments that sit on the front of the Arkansas State Capitol."

Kezhaya, appearing before the court via Microsoft Teams, was critical of the bill's co-sponsor, former state Sen. Jason Rapert.

"Jason Rapert has done a very good job making a very public record [stating] that this monument is designed to push this notion that Christians are the right and proper holders over everyone in America, pursuant to their theological doctrines," Kezhaya said. "This is anathema to the Establishment Clause."

After an hour recess for lunch, Mike Cantrell, assistant solicitor general in Griffin's office, gave the state's argument regarding its summary judgment motion.

Unlike the three presentations by the plaintiffs, more than once Baker interrupted Cantrell seeking clarifications on his argument.

Early on, she pressed Cantrell regarding the litmus test for someone having standing to sue under the Establishment Clause.

"You're asking me to change the test, right?" Baker asked. "I mean, what you're citing to me is not a majority opinion from any reported Supreme Court case, is it? ...

"Just be candid with the court," Baker said. "If you've got a majority view that you can cite to me, cite it. If you're asking me to change the law, say it."

"Your Honor, the Supreme Court has never endorsed the idea that an offended observer has standing to sue under the Establishment Clause," Cantrell responded. "And so it wouldn't be necessary to change the law in that sense if the Supreme Court had gone the other way."

Baker asked if the 8th Circuit Court had.

Cantrell cited that court's opinion in a 2014 case called Freethinkers v. City of Fargo.

"Its holding would be in tension with my argument. But that opinion itself is contrary to Valley Forge from the U.S. Supreme Court," Cantrell said, citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., which was ruled on by the Supreme Court in 1982.

According to Oyez.com, a Supreme Court database, the court ruled that Americans United for Separation of Church and State did not have standing to sue because the source of the group's complaint was not a congressional statute, but the decision of a government agency to dispose of a parcel of property, and because the transaction did not involve the taxing and spending power.

"In Valley Forge, the plaintiffs there failed to identify any injury other than the 'psychological consequence, produced by observation of conduct with which they disagree'" Cantrell said. "And the court found that failure fatal to the plaintiffs' lawsuit in that case. ...

"Here, just like in Valley Forge, the plaintiffs claim harm because they are, as they say, firmly committed to the separation of church and state. But to say that the harm is only a harm where the Constitution is violated is to admit that the alleged injury is legal disagreement on the merits, not a cognizable Article Three injury."

"What would be required for standing under the Establishment Clause if you don't think that's the test?" Baker asked. "What is the test? What would be required?"

"I would refer you to the Valley Forge case, which frankly acknowledges that, to say that these plaintiffs don't have standing would mean that no plaintiff would have standing to challenge a particular action is not a reason to find standing," Cantrell said.

"No, answer my question," Baker said. "You don't want me to say that's the test. What's the test?"

"There would need to be an injury independent of the constitutional disagreement," Cantrell answered.

After more back and forth, Baker observed "I don't know that you've really answered my question."

Act 1231 of 2015, sponsored by Rapert and co-sponsored by then-Rep. Kim Hammer, says the General Assembly found that the Ten Commandments "are an important component of the moral foundation of the laws and legal system of the United States of America and of the state of Arkansas," and they "represent a philosophy of government held by many of the founders of this nation."

Hammer served in the House for eight years before being elected to the Senate in 2018. Rapert, who served as a senator from 2011 until 2023, was defeated by former Arkansas Attorney General Leslie Rutledge in 2022 in his bid for the state lieutenant governor's office. She replaced Griffin, who was elected attorney general in 2022.

The first Ten Commandments monument was installed at the Capitol on June 27, 2017, but was toppled within 24 hours by a man who rammed it with his vehicle and was later found mentally unfit to proceed to trial. A replacement monument, surrounded by 3-foot-tall concrete posts, was installed April 26, 2018.

Friday's court session ended with Baker hearing from plaintiff and defense representatives regarding motions by both sides to exclude expert witnesses.

Baker said she would issue written decisions, but didn't specify when. No future court proceedings regarding the lawsuit were announced during the hearing.