ACLU Monitoring Ten Commandments Monument Law

The American Civil Liberties Union of Arkansas is monitoring the progress of a new law that allows the state of Arkansas to place a Ten Commandments monument on the grounds of the Capitol in Little Rock.

“We are going to watch what happens carefully and decide what our next steps should be, but yes, with an eye to taking legal action, if necessary,” said Rita Sklar, the executive director of the ACLU of Arkansas. “It causes concerns to all Arkansans who don’t like the idea of their state endorsing religion.”

State Sen. Jason Rapert, R-Conway, who sponsored the bill, told Arkansas Business that he expects to look at the Capitol grounds this week for a possible location of the monument, which will be paid for with private funds.

“Several people have stepped forward that want to make a donation,” he said.

He said he wasn’t sure when the monument would be placed, but expects most of the decisions to be made by the end of the summer. Rapert also said he expects the legislation, which Gov. Asa Hutchinson signed into law in April, to survive legal challenges.

“My opinion is that [the monument] honors the moral foundation of law here in the United States,” he said.

But legal experts aren’t so sure.

“I think there are all kinds of potential constitutional problems with” Rapert’s legislation, said John DiPippa, a dean emeritus at the William H. Bowen School of Law at the University of Arkansas at Little Rock.

He said the state is “establishing religion” when it chooses which version of the Ten Commandments to be etched in stone and displayed.

Trying to rule if a monument violates the separation of church and state, though, is “very complicated,” said Richard Garnett, a law professor at the University of Notre Dame, who teaches about the freedoms of speech, association and religion.

He said the courts will ask if the monument is private speech or government speech.

“Then the other question is, what’s the purpose?” Garnett said. “Does the erection of this monument … have a secular purpose?”

Garnett said the problem with those kinds of tests is that they leave “a lot of wiggle room for the judges’ own kind of impressions. If you had to generalize, … the old monuments get to stay but new ones aren’t going to go up.”

‘Moral Foundation’

Rapert said he decided to write the legislation because Arkansas doesn’t have anything on its Capitol grounds “dedicated to the moral foundation of law.” And the placing of the monument would help Arkansans and others “to know the Ten Commandments as the moral foundation of the law,” according to the bill. The Secretary of State’s Office is in charge of arranging for the monument to be designed and built.

But Rapert said the design will be modeled after the monuments in Texas and Oklahoma, which were presented by the Fraternal Order of Eagles, an international nonprofit group that said it promotes peace, prosperity, gladness and hope.

The bill said that if the constitutionality of the monument is challenged, the Attorney General’s Office could handle the defense or the state could hire the Liberty Legal Institute of Plano, Texas. On its website, Liberty Legal said its mission “is to defend and restore religious liberty across America — in our schools, for our churches, inside the military, and throughout the public arena.”

Rapert said he was cautious when he prepared the bill so the monument would survive legal challenges.

“There is a very, very minute group of people that are against anything that makes any reference to moral foundation of law, and that’s unfortunate,” he said. “Outside entities like the ACLU have no business telling us in Arkansas what we can or can’t do when the majority want that.”