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Indiana Attorney General Todd Rokita is asking a federal judge to decide whether a giant Ten Commandments monument should go up outside the Statehouse lawn. That request comes nearly a year after the state filed a federal lawsuit to make it happen.
It’s the latest twist in a decades-long saga.
In 1958, the governor placed a Ten Commandments monument outside the Capitol, and it stayed there for decades… until it was vandalized in 1991. State officials vowed to replace it… but it took a while. It wasn’t until 2000 when the new monument was ready to go. That one 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 outside the Statehouse, though. 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.
The state’s Republican leaders are now trying to get that monument back up… by trying to revive the old case.
They’re aware that the federal courts lean conservative. They know that other red states are trying to get the Decalogue in public places, like classrooms. And they also 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.
That’s how Gov. Mike Braun framed it earlier this year:
“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 was obviously a lie. There’s nothing about the Ten Commandments as a whole that has inspired our laws; 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 expanded on the idea that this was 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.
The irony is that 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.
Over the past year, both sides have been filing legal briefs defending their positions. The ACLU of Indiana has plenty of evidence to show this monument would still be a violation of the First Amendment—there’s no proof the Commandments influenced American law, there’s no historical tradition of putting up monuments like this, etc. So given that no one disagrees about the facts of the case, in September, they asked a judge to simply make a decision; no need for a trial.
Now Rokita (representing Braun and the state of Indiana) has responded with a rebuttal to those claims. He says there’s a lot of stuff in dispute… but his explanations are the usual roundup of David Barton-esque misinformation. For example, Rokita says we know the Commandments influenced the Constitution because the Constitution is dated ‘the Year of our Lord’ 1787 and excepts Sundays from the time for the President to veto bills.” He also says it shouldn’t matter if people are “offended” and that the monument was up long enough (before it was vandalized) to establish a “tradition.” Rokita wants the judge to accept his version of the story—not the ACLU’s—before coming to a decision.
“The Ten Commandments, the Bill of Rights, and our state Constitution’s Preamble are foundational to the laws and liberties Hoosiers live under every day, and protecting those principles is exactly what my office works to do,” Attorney General Todd Rokita said. “After more than two decades of inaction by others, I am taking on this fight and pursuing this case because it is long past time to relocate and display this monument where it rightfully belongs, and we will continue working to ensure a small group of radical activists, backed by the ACLU, doesn't prevent us from doing so.”
This is how Christian Nationalists operate. 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.
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.
For now, though, the case has been assigned to U.S. Magistrate Judge M. Kendra Klump, who has a long impressive history that includes a stint at the International Atomic Energy Agency in Vienna, Austria.
It should be embarrassing for Indiana that this is what their attorney general is working on after an election in which the state saw massive gains by Democrats who won statewide races and flipped more than 20 seats in the legislature. None of this makes anyone’s life better, but it’ll appease religious zealots who see the government as an extension of their church.
(Portions of this article were published earlier)
Hey, Todd...
Bet you don't know what the actual 10 Commandments are. They sure aren't the ones YOU'RE thinking of.
Go ahead. Try getting THOSE 10 Commandments put up at the statehouse. Watch the reaction.
Amazing. Indiana has anywhere between 8,700 to 11,500 xtian congregations/organizations, yet Rokita wants to ignore all those and "plant the flag" on the statehouse lawn, which is not xtian. Or any other religion.
Put it up at YOUR house, Todd.