"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."
That he did and with a case that involves an issue that has divided liberals and conservatives as well as lower federal courts for decades: the display of a Ten Commandments monument on government property.
On March 2, the Supreme Court 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 raised 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 legal career and rendered him homeless. "I miss it," he said about 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 liberal 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 recently as he stood outside the court building. 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 second-hand 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."
Now the U.S. Supreme Court will decide the question presented in the Van Orden case: whether a monument bearing the Ten Commandments, which has stood for more than 40 years and 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 U.S. Court of Appeals for the 5th Circuit 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 U.S. Court of Appeals for 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. These are just two of more than two dozen cases involving the Ten Commandments that lower courts have decided since the U.S. Supreme Court last agreed to address the issue in 1980. It was then the high court struck down a Kentucky law that required public schools to post the commandments in classrooms.
Van Orden's case will be argued at the Supreme Court 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. Last spring, Chemerinsky petitioned the Supreme Court to review the appellate ruling in the Van Orden case and last October, the court announced it would hear the Texas and Kentucky cases together.
"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."
In recent months, Van Orden's direct involvement in the case has been in the form of suggestions made to Chemerinsky in e-mails sent from the public computers at the Texas State and the University of Texas law libraries. Chemerinsky has mailed Van Orden the briefs submitted in the case and welcomed his comments.
Last November, almost a year after he spoke to Van Orden originally by telephone and began working on the case, Chemerinsky flew to Austin to meet the plaintiff and get a tour of the monument and the 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's 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 as Van Orden often says, 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 some small donations from supporters of his cause.
He got his U.S. District Court filing fee waived after being certified as a pauper and used a $4 disposable camera to take the pictures of the monument that he submitted into evidence. He walked to the federal court in Austin, where he initially argued his case, and then got a ride from a sympathetic UT law student to New Orleans so he could argue his appeal before the 5th Circuit. He said the experience was exhilarating yet stressful.
"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."
For Van Orden, this case was not just about fighting for a constitutional right. It was about redemption.
"I felt alive again," said Van Orden, who graduated from Southern Methodist University law school in 1970, then served in the U.S. Army's Judge Advocate General's office for two years during the Vietnam War. He practiced criminal defense law in Tyler, Houston and Dallas, got 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 that he did not perform and for failing to pay fees ordered in disciplinary judgments. The 1995 suspension also ordered him to provide a psychiatric opinion certifying that his "current state of mental health does not render him incapable of routine law practice."
Van Orden remains on active suspension, prohibited from representing anyone in court other than himself, because he has failed to pay fees ordered in the 1995 disciplinary judgment, a bar official said. He also 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, and he considers himself a loner.
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?"
For him, the important story is that of "the little guy" who went up against the powerful state.
"You can still do it with a piece of paper, a pen and a law book," Van Orden said. "But that will be lost in all the hoopla of the Ten Commandments."