Indigent makes legal mark

AUSTIN, Texas — Comes now the plaintiff, surely one of the most unusual to advance a case to the highest court in the land. He's homeless, he's destitute, his law license is suspended.

Never mind all that, Thomas Van Orden admonishes anyone who gets stuck on the fact that he sleeps nightly in a tent in a wooded area, showers and washes his clothes irregularly, hangs out in a law library, and survives on food stamps and the good graces of acquaintances who give him a few bucks from time to time.

What is important, Van Orden says, is "I wrote myself to the Supreme Court."

The U.S. Supreme Court on Wednesday will hear Van Orden v. Perry, a case born of Van Orden's daily meanderings around the Texas state Capitol grounds. There, between the Capitol and the Texas Supreme Court, stands a 6-foot-tall, 3-foot-wide pink granite monument etched with the commandments and Christian and Jewish symbols. Carved in the shape of stone tablets, the monument was presented to "the Youth and the People of Texas" in 1961 by the Texas chapter of the Fraternal Order of Eagles.

One day in 2002, as Van Orden walked to the State Law Library in the Supreme Court building, where he seeks peaceful and dry refuge daily, the lawsuit dawned on him. Somebody had to challenge the state of Texas for what he believed to be a governmental endorsement of Judeo-Christian doctrine and a violation of the separation between church and state.

Why not him? As he likes to say, "I have time; my schedule is kind of light."

Van Orden is a self-declared religious pluralist who was reared Methodist in East Texas and joined the Unitarian church in Austin in the 1990s. That was before he sank into a major depression that destroyed his family life and career and rendered him homeless. "I miss it," he said of church. "But it's hard to get up and go on Sunday morning when you live in a tent."

He speculated that even the Texas chapter of the American Civil Liberties Union would never challenge the commandments monument on the Capitol grounds.

"If you're in private practice in Austin and file this suit, you're going to be radicalized — even in liberal Austin. But look at me; I'm the perfect person. I don't have anything to lose," he said.

He is 59 or 60 but will not say which. He needed a shave, and his teeth and fingers were stained dark from tobacco, but he looked rather lawyerly in his secondhand slacks, blue-striped shirt and scuffed brown wingtips. "It's like God called me to do it. How could I walk away from that?" he said. "It just looked to me like the light shined on me."

The Supreme Court now will decide whether a monument bearing the Ten Commandments, which is surrounded by 16 other monuments on the Texas Capitol grounds, "constitutes an impermissible establishment of religion in violation of the First Amendment."

To be heard at the same time is McCreary County v. ACLU of Kentucky, a case that challenges the exhibition of the Ten Commandments along with other historical documents in two courthouses.

In the Texas case, the 5th U.S. Circuit Court of Appeals ruled in November 2003 that the commandments monument conveyed both a religious and secular message and did not violate the Constitution. In the Kentucky case, the 6th Circuit ruled in December 2003 that two counties must remove framed copies of the Ten Commandments from courthouse walls because they constituted religious displays.

Van Orden's case will be argued by constitutional-law scholar Erwin Chemerinsky of Duke University. Van Orden called Chemerinsky shortly after the 5th Circuit ruled against him in late 2003, and Chemerinsky agreed to take the case pro bono.

"I have nothing but the greatest admiration and respect for him," Chemerinsky said of Van Orden. "He genuinely cares about this issue. He's extremely intelligent and articulate, and I think he did an excellent job of briefing and arguing the case on the trial level and the appellate level. ... A large Ten Commandments monument sitting between the Texas Capitol and the Texas Supreme Court violates the establishment clause."

Van Orden's direct involvement in the case in recent months has been in the form of suggestions to Chemerinsky in e-mails sent from public computers at the Texas State and the University of Texas law libraries.

Chemerinsky flew to Austin in November to meet the plaintiff and tour the monument and Capitol grounds. "He and I have never talked about his living circumstances," Chemerinsky said. "It has nothing to do with the case. He's asked me to do something very important, and that is take his case to the Supreme Court."

Texas' case will be argued by State Attorney General Greg Abbott. State Solicitor General R. Ted Cruz, who faced Van Orden during arguments in the Court of Appeals for the 5th Circuit, said the monument does not endorse a specific religion.

According to the brief filed by Abbott in the Supreme Court, the Ten Commandments monument and the 16 others on the Capitol grounds commemorate the "people, events and ideals that have contributed to the history, diversity and culture of Texas."

"The Ten Commandments are unquestionably a sacred religious text, but they equally, unquestionably, have made important historical contributions to the development of Western legal codes and civilization," Cruz said. "That's why one finds the Ten Commandments in courthouses throughout the nation."

But Van Orden often says that he did not sue the Ten Commandments. "I sued the state ... to uphold the values found in the First Amendment." And he did it on less than a shoestring, using the public resources of the Texas State Law Library, a dollar here and there from friends and small donations.

His U.S. District Court filing fee was waived after he was certified as a pauper, and he used a $4 disposable camera to take pictures of the monument that he submitted into evidence. He walked to the federal court in Austin, where he initially argued his case, and was driven by a sympathetic UT law student to New Orleans so he could argue his appeal before the 5th Circuit.

"The subject was to me like strawberry pie. I love it; I love constitutional law. But the practicality of it, that wears on you," he said. "Even if you get money to make copies [of briefs], then how are you going to get postage to mail them? Each time, it was a different thing, but somehow I managed."

"I felt alive again," said Van Orden, who graduated from Southern Methodist University law school in 1970, then served in the Army's Judge Advocate General's Office for two years during the Vietnam War. He practiced criminal-defense law in Tyler, Houston and Dallas, earned his pilot's license and was a flight instructor before moving to Austin in 1993. But by then, his life had begun to unravel.

Texas State Bar records show Van Orden's law license was suspended in 1985, in 1989 and in 1999 — mostly for taking money from clients for work he did not perform and for failing to pay fees ordered in disciplinary judgments.

Van Orden is still prohibited from representing anyone in court other than himself, a bar official said. He has not paid the bar dues to reactivate his license.

Van Orden would not discuss the disciplinary cases other than to say, "That's in the past, when I was sinking into oblivion." He said he overcame his depression, but won't discuss how. "Unfortunately, your life is destroyed by then," he said.

He has two ex-wives and two children, none of whom he has seen in years. He chafes at the fact that the Ten Commandments case has gained him fame as "the homeless lawyer," saying: "Where I sleep at night, is this important compared to what I read during the day? What do you think defines me, where I slept or what I did all day?"