One man's trip from streets to Supreme Court

He's slept in a tent for years. But now, Thomas Van Orden's case about church and state is at the pinnacle of law disputes.

He didn't fit the stereotype of a homeless person when Douglas Laycock first met him. He was clean, neatly dressed, and articulate.

But that was not all Professor Laycock learned when Thomas Van Orden showed up at his office to discuss a case he was bringing against the state of Texas.

It became clear in the course of their conversation that Mr. Van Orden knew the law.

"It was apparent that this wasn't a guy who had wandered up from under a bridge," says Laycock, a nationally recognized expert on First Amendment law and religion at the University of Texas in Austin.

Indeed, three years after he began his legal crusade to have Texas officials remove a Ten Commandments monument from the grounds of the state capitol, Van Orden's case will be heard by the nation's highest court.

"A homeless person bringing a case to the US Supreme Court on any other issue than homelessness is pretty unusual, maybe unprecedented," says Laycock. "And usually homeless cases are brought by a legal aid society on behalf of homeless people. But the fact that Van Orden brought this case himself on a totally unrelated issue, I suspect has never happened."

Still, the Supreme Court is filled with everyman victories - the most famous of which is that of Clarence Earl Gideon, a poor Florida thief who filed a pencil-written petition to the high court in 1962 challenging Florida's unwillingness to provide him a lawyer. The Supreme Court found that all people are entitled to a lawyer when facing criminal charges.

"That's the great thing about our legal system," says Erwin Chemerinsky, a constitutional law expert at Duke University who will argue the case for Van Orden Wednesday. "A sole individual can force our government to follow the law."

Van Orden earned a law degree from Southern Methodist University in 1970 and practiced criminal law in Houston, Dallas, and Austin before his life spiraled downward in the 1990s. He finally had his law license suspended in 1999 and was unable to work. He has been sleeping in a tent in a wooded Austin neighborhood ever since.

He seeks daily shelter at the Texas State Law Library where he reads up on current cases. But one day in 2002, he passed the monument and thought: Somebody has to challenge its presence. Why not me? I've got free time.

Van Orden maintains that he is not against religion, but believes the monument violates the Constitution's guarantee of the separation of church and state.

After losing at both the federal district court in Austin and the US Court of Appeals for the 5th Circuit, he contacted Mr. Chemerinsky about the case. He considered filing a petition to the Supreme Court himself, but decided against it. Filing and travel expenses have been difficult.

Chemerinsky says he read what Van Orden had done up to that point and was truly impressed. "He did an excellent job."

Chemerinsky took the case pro bono, and says when he met Van Orden, "I found him charming and highly intelligent. And he has enormous awareness that this case could set the law throughout the country for years to come." While Chemerinsky has flown to Austin to discuss the case with Van Orden and see the monument, he says the two never discuss Van Orden's personal life. "It is none of my business and it has nothing to do with this case."

The extremely private Van Orden has decided to stay in Austin for the oral arguments, even though Chemerinsky has offered to pay for his trip.

The monument is one of dozens of similar monuments donated to courthouses, statehouses, and schools by the Fraternal Order of Eagles in the 1950s and '60s.

One of the reasons it has taken so long for a case like this to make it to the US Supreme Court, says Laycock, is that "it's tough to be a plaintiff in one of these cases. It takes some courage."

Van Orden, he says, has that courage. "But he also doesn't tell anyone where he keeps his tent."

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