Proposed Ten Commandments Monument is Unconstitutional
The Arkansas Society of Freethinkers (ASF) objects to SB939, introduced by Sen. Jason Rapert (R-Bigelow). The bill, as amended on Friday, would require the Secretary of State to erect a Ten Commandments monument on the grounds of the Arkansas state capitol.
“If this bill becomes law, there will definitely be a lawsuit against this purely religious monument,” said Anne Orsi, an attorney and spokesperson for the society. The bill states that the purpose of the monument is not to establish religion, but does not specify what secular purpose the monument might serve.
LeeWood Thomas, the group’s media liaison, said that ASF is skeptical that any secular purpose exists, “Sen. Rapert wants to legislate which of the multiple versions of the commandments the State of Arkansas will officially recognize. If that’s not establishment of religion, nothing is.”
SB939 cites Van Orden v. Perry, a 2005 U.S. Supreme Court decision that held a monument with the Ten Commandments that had been donated to the state of Texas by a private organization four decades before was permitted. The same court held exactly the opposite, though, in McCreary County v. ACLU, a companion case decided the same day, in which the government had erected the monuments and there was no secular purpose.
As submitted, the bill provides that if anyone sues the state to have the law and the monument declared unconstitutional, the Attorney General could request that the Liberty Institute, a conservative Christian legal defense organization based in Texas and lost the McCreary case, to provide the state’s defense. Legal defense of state laws is the role of the Arkansas Attorney General, with other attorneys being hired only in unusual circumstances.
Two years ago attorney Matthew Campbell sued Secretary of State Mark Martin for improperly hiring outside attorneys rather than using the Attorney General’s office. Campbell said, “For over 80 years, the legislature has made clear that the decision whether to hire outside counsel lies with the Attorney General, and Arkansas law reflects this discretion to this day. Sen. Rapert, perhaps worried that the Attorney General will see his bill for the unconstitutional act that it is, has built in a provision to usurp the Attorney General’s role in determining when to hire outside counsel and which outside counsel to hire. In addition to being improper, this seems to illustrate that even Sen. Rapert knows that the bill is unconstitutional and would only be defended by a group as overly partisan as he is.”
The primary mission of the Arkansas Society of Freethinkers is to protect separation of church and state.