A Most Unusual Lawyer

AUSTIN, Texas — The enormous windows of the Texas law library, an otherwise musty and lonely place, capture Austin’s gentility frame by frame — a towering oak tree, a garden of yellow roses, the granite rotunda of the state Capitol.

Inside, a homeless man with tired eyes works at a corner carrel in the basement amid his belongings — a duffel bag with a broken zipper, reading glasses he found in a parking lot, chicken-scratch notes sullied with splashes of instant coffee. His carefully parted hair and striped shirt contrast with his stained teeth and dirty fingernails. Armed with scraps of paper and pens he digs out of the trash, he’s been here for two years, trying to define, once and for all, the boundaries of a governmental endorsement of religion.

A former defense attorney whose career collapsed under the weight of a debilitating psychological condition, Thomas Van Orden sued the state of Texas two years ago in federal court. His lawsuit contends a 5-foot-tall monolith to the Ten Commandments, erected on the grounds of the Capitol, violates the 1st Amendment’s ban on “establishment of religion.”

Earlier this month, an appeals court ruled that the monument constitutes a “secular message” and can stay. Today, Van Orden is piecing together a last appeal to the U.S. Supreme Court. A growing chorus of state officials and legal analysts, many of whom initially dismissed Van Orden as an amusement at best, now believe the Supreme Court might take the case in an effort to reconcile a conflicting pile of lower court decisions.

A thoughtful man with an admittedly troubled soul, Van Orden plans to argue the case himself — provided he can find a ride to Washington. “What else am I going to do?” he said. “Sit on a bench in a park?”

Last summer, the nation’s attention was focused on a courthouse in Alabama, where Chief Justice Roy Moore erected a Ten Commandments monument and defied orders to remove it. That became a flashpoint dispute between Christian activists and advocates of the separation of church and state.

But many analysts — and even some evangelical leaders — believed that monument represented such a clear constitutional violation that it was unlikely to set legal precedent. They were not surprised when, in November, the Supreme Court refused to hear Moore’s appeal.

Still, most analysts believe the high court will be forced eventually to wade into the issue, if only because of widespread disagreement among lower courts about when the Ten Commandments can be displayed by the government. If the justices weigh in, they are expected to select another of the 20-odd disputes over the display of the Ten Commandments simmering in courts across the nation. Many believe the pieces are falling into place for Van Orden’s lawsuit, belying its humble origins, to reach Washington.

“I want to make this clear: I didn’t sue religion,” Van Orden, 59, said. “I sued the state for putting a religious monument on Capitol grounds. You wouldn’t put that statue on a Hindi’s lawn, so why would you put it on the lawn of the Capitol, the home of all people? It is a message of discrimination. Government has to remain neutral.”

He stood from the desk that has effectively been ceded to his case by librarians who know him by name and shuffled off in search of a legal brief. Rifling through a storage cabinet, he pulled out a frayed ball of kite string. It’s the one he used to measure the 75-foot span between the Capitol and a granite slab etched with the words of the Ten Commandments, beginning with “I am the Lord thy God.”

“This,” he said, holding the string next to a window to bathe it in more adoring light, “will be in a museum one day. Like Davy Crockett’s hat.”

It’s heady talk for a man who saves money by eating every other day, and by living in a tent. Whether Van Orden can turn his ball of string into a piece of history remains to be seen — and will turn not on the monument itself, but on its surroundings.

In contrast to Moore’s monolith, which dominated the Alabama courthouse rotunda, the Texas monument is one piece in a scattered sculpture garden. Other monuments in the area are dedicated to historic events and people, from Texans who served in the Korean War to the state’s “pioneering women.”

That context seems to allow for two legitimate interpretations — that the government is promoting Judaism and Christianity at the exclusion of other religions, as Van Orden argues, and that the government is merely celebrating history, as state officials argue. That’s why many believe the case is a perfect test for the Supreme Court.

“Judge Moore’s case was an in-your-face expression of religion. Even deeply devout Christians and Jews don’t want the Ten Commandments shoved down their throat,” said Alan Wolfe, director of the Boisi Center for Religion and American Public Life at Boston College. In contrast, Wolfe said, Van Orden’s case “is about style, about form, rather than content.”

“Most people think that we ought to have some kind of religious symbolism in our public life, but it should be very general and not confrontational,” Wolfe said. “Americans want it to be capacious and inclusive, not sectarian. This might pass that test.”

Would it?

“I’ll give you a good lawyer answer: It depends,” said John Ferguson, a Baptist minister, attorney and education coordinator for the First Amendment Center in Tennessee. Ferguson is among those who believe Van Orden’s case has a good shot at reaching the Supreme Court.

“It’s not presented in isolation. So you have to look at why it’s there. If it’s some veiled attempt to promote religion, it can’t stay. If it’s an element of something larger, and it’s done to truly educate the public, then it’s probably OK.”

Texas officials have pledged to do whatever it takes to keep the piece where it is.

“The Ten Commandments, undeniably, are a sacred religious text and have an important religious component,” said Texas Solicitor General Ted Cruz. “But equally undeniably, they have an important secular aspect. They were a fundamental building block behind Western legal codes and culture.”

So far, the state’s argument has carried the day.

Last year, Senior U.S. District Judge Harry Lee Hudspeth ruled that the monument has a “valid secular purpose.” Hudspeth opened his decision by quoting Rudyard Kipling’s “Mandalay,” a poem depicting a fun-loving but lawless place: “Ship me somewheres east of Suez ... [w]here there aren’t no Ten Commandments an’ a man can raise a thirst.”

Then last summer, Van Orden appealed to the U.S. 5th Circuit Court of Appeals. He prepared for the hearing by delivering arguments in a University of Texas classroom, with law students sitting as a mock jury. The hearing was in New Orleans, 500 miles east of Austin. Trevor Rosson, 32, the student most involved in his case, gave him a ride.

“The man knows his law,” Rosson said. “He was so well prepared it was unbelievable. He’d been working on this for so long it was just implanted in his brain.”

In November, the U.S. 5th Circuit agreed that the monument could remain, saying a “reasonable viewer” would not “conclude that the state is endorsing the religious rather than secular message.” The ruling puts the court at direct odds with other courts around the country — the scenario when the Supreme Court is most likely to step in.

At issue is a 5-foot-tall tablet depicting an eagle, an American flag and the Ten Commandments. The Fraternal Order of Eagles, a service organization, donated it to the state in 1961 as part of a campaign to provide moral guidance to juveniles. The group had started by passing out scrolls listing the commandments. Movie director Cecil B. DeMille suggested it would be more effective — and, it went unsaid, more effective for promoting his movie “The Ten Commandments” — if monuments were erected instead.

State officials placed the monument next to the Capitol, where it sat, largely unnoticed, for 40 years. Then, along came Van Orden.

Van Orden was born in the East Texas town of Tyler, the third of four siblings. His father died when he was young and his mother, who has since died, took him to Methodist church every Sunday. It is one of many periods in his life that Van Orden won’t talk about, insisting that his case should remain focused on constitutional principles, not his past.

“His mother was active in her church, religious, but not fanatical,” said his ex-wife, Melanie Curtis. “She helped people, took them food if they needed it. He liked to irritate his mother by making sure he didn’t show any affection for the church. But it was just his personality. He knew all the hymns.”

After junior college, Van Orden received a scholarship to study law at Southern Methodist University. SMU records confirm that he graduated in 1969. By then a “Bobby Kennedy liberal,” he says he was drafted a short time later.

Ordered to serve as a gunner in Vietnam, he instead talked his way into working for the Army’s Judge Advocate General, often writing wills for soldiers on the eve of deployment. Later, he was an assistant city attorney and criminal defense lawyer, hopping from Houston to Dallas, then Austin.

He won’t talk about his career, but Rosson said Van Orden was involved enough in the attorneys’ “scene” that he developed a solid golf swing. Curtis said she frequently went to court to watch him defend accused drug dealers and wife-beaters. “I never saw him lose,” she said. They married in 1984, had a daughter a short time later and divorced in 1989.

Around the same time, Van Orden began suffering from a fear of humiliation that caused him to shy from social and professional interaction. The condition killed his career. He lost touch with his family, and by the late 1990s was depressed and homeless.

Unable to afford help, he began visiting libraries to research his condition. He learned enough, he says, to teach himself to recover. He began putting his life back together, though he says he still isn’t well enough to work in an office — not that anyone would hire him anyway, he adds.

He survives on food stamps and sleeps in his tent in the woods, nestled in a well-heeled Austin neighborhood that he travels to by bus. He won’t discuss its location, saying he must protect himself from his unwitting neighbors and drug addicts who would steal his tent.

“I am who I am,” he said. “But the nights are hard. I don’t like living in the bushes.”

Eventually, his confidence renewed, he began dabbling in law again. Each day, en route to a cafeteria where he gets free hot water for his coffee, he passed the monument. He says he began to appreciate its prominence on the Capitol grounds, the way its shadow seemed to seep into the halls of power.

His law license had lapsed, largely because he hadn’t paid his State Bar dues. But that only keeps him from representing other people, not himself. So two years ago, he said, he decided to sue.

Kelly Shackelford, chief counsel of the Liberty Legal Institute, a Texas group that lobbies for religious freedom, is among those who believe the Supreme Court might be attracted to the intricacies of Van Orden’s case. He said the court must address the issue of whether government can acknowledge a particular religion without being seen as endorsing it. “Is the Ten Commandments religious? Well, yeah, it’s religious. So what?” he said. “We don’t censor our religious history, any more than we would go into the national museum of art and rip down the Renaissance paintings.”

Doug Laycock, a law professor at the University of Texas and a leading expert on the issue, says that’s a shortsighted argument. As the joke goes, there are two religions in Texas — football and Christianity — and the monument is a less-than-subtle reminder of who runs the Capitol, he said.

“There is no doubt that it is an endorsement,” he said. “This moves religious choice from where it belongs, in the private sector, to the public domain. It serves no purpose except for one side to say: ‘Hey, we’re in charge here.’ ”

Now that the time has come to make his last appeal, Van Order is worried — not that he wouldn’t be able to hold his own, but that he won’t be able to get there in the first place, even if the justices take his case. So far, he’s gotten by without money. Taking a case to Washington would be more expensive. Legal briefs must be printed in dozens of booklets, 40 of them just for the court’s research staff. Printing alone would cost $2,000.

“I can do the legal part,” he said. “But the money — that might be something I can’t recover from.”

In recent days, he and a few supporters in Austin have begun talking about handing his case off — possibly to USC law professor Erwin Chemerinsky, who said he’d be happy to take it — in an effort to give the case more of a shot at landing in front of the Supreme Court.

Then again, Van Orden’s made it this far on his own. He has a dream, and he figures he can’t let a little thing like money get in his way.

“I’ll sleep outdoors the night before,” he said. “I’ll get out of the bushes and go to the Supreme Court to argue the case. How about that? Only in America.”

Staff researcher Lianne Hart contributed to this report.