Indiana Republicans are reviving a decades-old fight over a Ten Commandments monument

Gov. Mike Braun and Attorney General Todd Rokita are gambling on a more partisan court to advance their Christian Nationalist agenda

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Indiana’s Gov. Mike Braun and Attorney General Todd Rokita are asking a federal judge to allow a giant Ten Commandments monument to go up outside the Statehouse lawn. In fact, they just filed a federal lawsuit to make it happen.

Technically, they’re asking a judge to vacate a previous ruling, so this is more like a reboot of a case that stretches back decades.

In 1958, the governor placed a Ten Commandments monument outside the Capitol, and it stayed there for decades… until it was vandalized in 1991. They vowed to replace it but it took a while. It wasn’t until 2000 when the new version was ready to go. That monument also included the Bill of Rights (on the back), the Preamble to the 1851 Indiana Constitution (in a smaller section), and a dedication to the Indiana Limestone Institute (the company that made it).

They didn’t just want to put up the monument, either. That year, Republicans passed a law to put up the Commandments in schools, courthouses, and other government buildings.

So by the time then-Governor Frank O’Bannon announced that the new monument would be placed on the Statehouse lawn, a lawsuit was filed by the Indiana Civil Liberties Union (now known as the ACLU of Indiana) to stop it from happening.

The group was successful. Indiana eventually lost. The courts said the new law violated the Lemon test, basically a three-prong approach to assess whether government action goes too far when it comes to religion. The Lemon test said a statute must have a secular purpose, neither advance or prohibit religion, and avoid “excessive government entanglement” with religion. Indiana’s Ten Commandments law didn’t have a secular purpose and it promoted Christianity. So that was the end of it. By 2002, the case was dead.

So why are the state’s Republican leaders now trying to get that monument back up?

Because they’re aware that the federal courts lean conservative, and that other red states are trying to get the Decalogue in public places, and they know that if they lie about their reason for wanting the monument to go up—and claim it’s about promoting our nation’s history rather than any particular religious beliefs, certain judges will let them get away with it.

Indiana’s Ten Commandments monument (via Facebook)

That’s how Braun is framing it:

“This monument reflects foundational texts that have shaped our Nation’s laws, liberties, and civic life for generations,” Governor Mike Braun said. “Given the clear shift in constitutional law and the long history of similar displays across the country, we ask the court to lift this outdated injunction. Restoring this historical monument is about honoring our heritage and who we are as Hoosiers.

That’s obviously a lie. There’s nothing about the Ten Commandments as a whole that has inspired our laws and several of them are explicitly religious. The Bill of Rights is supposed to provide cover for the Christian part of the monument, but the fact that it’s on the side most people won’t see gives away the game.

In any case, the lawsuit itself expands on the idea that this is about history and a changing legal landscape for conservatives:

Since the permanent injunction was entered in 2002, Establishment Clause jurisprudence has changed so significantly that the permanent injunction cannot be maintained. The Supreme Court has discarded the Lemon test that this Court and the Seventh Circuit applied, upheld the placement of a Ten Commandments monument on another State’s capitol grounds, and explained that the Establishment Clause does not bar traditional acknowledgments of religion on public property. Under the law that now governs, there is no constitutional problem with the State installing a donated monument that reflects the historical, legal, and cultural significance of the Ten Commandments, the Bill of Rights, and the Indiana Constitution’s Preamble.

While the Supreme Court has discarded the Lemon test, the First Amendment is still in effect. Using the government to advance Christianity is still illegal—and several judges have said exactly that while knocking down Ten Commandments laws in Louisiana, Arkansas, and Texas. (An appeals court in Texas could finally change that when they take up these cases this month.)

Also, the Ten Commandments could be included as part of a larger display of historic documents (which is what the lawsuit refers to), but this display in Indiana very much promotes Christianity while treating other “historical” elements, like the Bill of Rights, as an afterthought.

There’s no reason for any judge to take this seriously. Unfortunately, the same could be said about a lot of bad-faith efforts by Republicans to circumvent the law… and they’ve had enough success with that strategy that we should all be worried.

This is how Christian Nationalists operate, though. They’re looking for religious dominance, not religious neutrality. They believe Christianity deserves special treatment by the government, even when that treatment directly contradicts the Constitution. What’s the point of having the Bill of Rights on the monument when the other side of it—the side everyone can see—directly contradicts what those Amendments represent?

The Establishment Clause is meaningless if states are allowed to advance one faith just by pretending it’s not really about religion. Indiana lost this fight in the past because there was no ambiguity about what they were trying to do. Nothing has changed this time around, except lawmakers are aware that judges are more partisan than ever before.

If the courts take this lawsuit seriously, they will be rewarding dishonesty. Rejecting the lawsuit, and this monument, isn’t anti-Christian. It’s pro-American.

It’s also worth mentioning a quick story that arose a few years ago.

John Krull used to be the executive director of the Indiana Civil Liberties Union. in 2019, he wrote an article about how conservative lawmakers tried passing that Ten Commandments law decades earlier. He knew it was illegal. They knew it was illegal. So why were they doing it?

In private, he said, they admitted the real strategy.

They told jokes about the Ten Commandments bill violating the Constitution.

Many of them called it “the ICLU appropriations act,” because they knew the ICLU was going to sue and the state was going to lose.

But that didn’t stop most lawmakers from voting for it.

In a quiet moment, I asked one of them why he did it.

He chuckled.

“That’s the way the game is played, isn’t it?” he said. “We avoid taking a hit with the thumpers”—Bible thumpers, his term for the religious right—“and the courts clean up after us.”

He shrugged his shoulders, as if to ask, “what’s the harm?”

It was all just a big game to these Republicans. They got to pass a bill they knew was wrong in order to appease their ignorant Christian base. Then the courts knocked it down, cleaning up after their mess. And the conservatives planned to use that stunt to get re-elected. And the cycle would just continue.

Those conservatives saw it as a win-win. The only people who didn’t like it were those who cared about silly things like having a government that functions as intended.

But there was lasting harm, Krull added. Fighting those lawsuits took time. And even if the law was knocked down, the ICLU’s legal fees would ultimately be paid by the taxpayers. And it also led conservative voters to believe their legislators were doing useful work when they clearly weren’t.

And on top of all of that, if some wayward activist judge decided the law was justified, it would have caused legal chaos.

None of that has changed today. The only difference is that those activist judges are entirely on the right, they’ve been installed across the country, and they love causing legal chaos.

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