The merger of two federal lawsuits opposing the replacement of a Ten Commandments monument on the grounds of the Arkansas State Capitol will proceed as one case with separate representation.
Both lawsuits claim that the monument’s presence is an unconstitutional endorsement of religion by the government.
One suit, filed by the American Civil Liberties Union of Arkansas, represents four Arkansans – three are agnostic and one is Jewish and an atheist – who are members of a walking and cycling club. They argue, in part, that the monument fosters an excessive entanglement between government and religion deprives them of their rights under the Establishment Clause of the First Amendment, which prohibits the government from establishing a national religion and from making a law that respects an establishment of religion.
The other suit represents Anne Orsi, president of the Arkansas Society of Freethinkers, who along with several other plaintiffs, argues that the government must maintain religious neutrality.
“Our theories seek the same result but they’re different, so all of the attorneys that are in it will remain involved in the lawsuit,” says Gerry Schulze, an attorney for the Arkansas Freethinkers Association.
The merger was requested by both plaintiffs.
“It’s what we call judicial economy,” says Schulze. “There were two cases filed at literally the same moment. We both handed the clerk the files at the same time. The ACLU’s got processed slightly earlier than Anne Orsi’s case, so what happened was that that one has an earlier number. Instead of having two different judges holding proceedings following two different scheduling orders and filing two different sets of briefs and having two judges ruling on it, we’ll just have one. That’s just what’s called judicial economy. It just makes sense.”
The original 6,000-pound granite monument was installed in June 2017, stood for just one day before it was knocked down by a car driven by Michael T. Reed II. A replacement monument was put up in April.
Republican Sen. Jason Rapert of Conway, sponsored Act 1231 of 2015 (A.C.A. 22-3-221), which authorizes the secretary of state to permit and arrange for the placement of the monument on the State Capitol grounds. The law cites Van Orden V. Perry, 545 U.S. 677 of 2005 as the precedence for making the monument’s placement constitutional.
Rapert is listed as the president of the non-profit corporation American History and Heritage Foundation, which raised money to pay for the original Ten Commandments monument as well as for its replacement. A GoFundMe page that says it was created by Jason Rapert on behalf of the American History and Heritage Foundation shows that $85,811 had been raised for the effort.
The law states that, “The placement of the monument under this section shall not be construed to mean that the State of Arkansas favors any particular religion or denomination over others.”
“I think we all agree that the cases no matter what should all be decided by one judge and it didn’t matter too much who the judge was or which case it was, but both complaints are still pending, both cases are still ongoing, all the plaintiffs are still plaintiffs – the only thing we have done is put them all under one heading, one case and one scheduling order, not duplicating efforts on anything,” Schulze says.
The Arkansas Attorney General’s office is representing Secretary of State Mark Martin in the suits, though the law allows for the attorney general to request that the Liberty Legal Institute prepare and present a legal defense of the monument.
The merged lawsuits challenging the monument are tentatively set to be heard by U.S. District Judge Kristine Baker on June 10, 2019.