By Marilyn Odendahl
The Indiana Citizen
January 29, 2026
In response to the Braun administration’s effort to install a Ten Commandments monument on Statehouse grounds, the ACLU of Indiana is asserting not only is the state too late in asking but also placing the statue on public land remains unconstitutional.
The ACLU argued against the installation in its opposition memorandum filed on Thursday in the U.S. District Court for Southern Indiana.
On Monday, the ACLU filed another opposition response to prevent the Fraternal Order of the Eagles from submitting an amicus brief in the case. The Fraternal Order, which gifted the original Ten Commandments monument that stood outside the Statehouse from 1958, until it was vandalized and removed in 1991, has asked the federal court for permission to file its brief in support of the state.
The filings in Indiana Civil Liberties Union et al. v. Mike Braun, 1:00-cv-00811, are reviving the 25-year-old court case, and the fight over whether the state can put the Ten Commandments on public grounds.
In December, Gov. Mike Braun filed a motion seeking to overturn a permanent injunction issued in 2002 that blocked the 11,500 pound limestone monument from being erected outside the Statehouse. Indiana Attorney General Todd Rokita, representing Braun, argued the U.S. Supreme Court has recently rejected prior interpretations of the Establishment Clause in the U.S. Constitution that blocked religious displays on public property.
The state is using Federal Rule of Civil Procedure 60(b)(5) as its vehicle to get a reversal from the federal district court.
However, the ACLU countered the high court has not changed its stance. Quoting precedent, the civil liberties organization noted the U.S. Supreme Court is still interpreting the Establishment Clause on the basis of “historical practices and understandings.”
“This case is not like the numerous cases cited by the State in which a state is burdened by a detailed and onerous judgment, consented to by prior executives and interfering with the operation of the government today,” the ACLU argued in its motion. “It is a case about a single monument that is sitting on church property as its fate is debated here. The law has not changed to the point where placing this large Ten Commandments Monument on the Statehouse lawn is constitutional.”
To date, the Southern Indiana District Court has not issued any rulings on motions from either side in the case.
The monument at the center of this dispute was presented to then-Gov. Frank O’Bannon, a Democrat, who attempted to erect it on Statehouse grounds in 2000. At the time, O’Bannon characterized the Ten Commandments as a secular document and said displaying the biblical text publicly would serve as a reminder of “some of the nation’s core values.”
However, the ACLU and five private citizens disagreed and sued to prevent the monument from being installed.
The federal district court issued a permanent injunction, prohibiting the monument from being placed outside the Statehouse. In particular, the court relied on the three-part test set forth in the U.S. Supreme Court’s 1971 ruling in Lemon v. Kurtzman and determined the purpose of the monument was religious, concluding “a reasonable person would perceive in this display a message of government endorsement of religion.”
The 7th U.S. Circuit Court of Appeals affirmed the district court’s decision.
Braun’s motion for relief argued that the U.S. Supreme Court has since abandoned the Lemon test, so the injunction should be lifted. Echoing O’Bannon, Braun in a press release said that the Ten Commandments is one of the country’s “foundational texts that have shaped our Nation’s laws, liberties, and civic life for generations.”
The state leaned heavily on the 2022 decision in Kennedy v. Bremerton School District, in which the U.S. Supreme Court ruled a football coach who openly prayed on the field after games did not violate the Establishment Clause of the First Amendment.
However, the ACLU noted while the U.S. Supreme Court no longer employs the Lemon test, it stressed in Kennedy that the “Establishment Clause must be interpreted by reference to historical practices and understandings.”
In the Town of Greece v. Galloway and American Legion v. American Humanist Association cases, the U.S. Supreme Court ruled a sectarian prayer prior to town board meetings and the Latin cross honoring World War I soldiers did not run afoul of the Establishment Clause, the ACLU said. Specifically, the court noted the practices were longstanding traditions that had been in place for many, many years – the Latin cross had been standing for nearly 100 years – and the court also considered whether the tradition supported a government practice and fit within the tradition.
The ACLU acknowledged the previous Ten Commandments monument had been displayed on the Statehouse grounds for many years prior to 1991, but it pointed out no other statue with that text has stood on that location for 35 years.
“There is no longstanding tradition of the practice of displaying the complete text of the Ten Commandments in prominent locations in public places,” the ACLU argued in its motion. “It is ironic that the State is arguing to the contrary, despite the fact that the Monument has been ensconced in front of (the 39th Street Christian Church in Bedford), presumably for the more than 25 years.”
Moreover, the ACLU argued the state had not filed its motion with a “reasonable time.”
Not only was Indiana aware of the shift in the U.S. Supreme Court’s view of the Lemon test and the endorsements tests as presented in its three opinions in Kennedy, American Legion, and Town of Greece, the ACLU asserted, but the state filed amicus briefs in each of those cases.
In addition, the ACLU said the state’s implication that the change in governor propelled the renewed push for the monument is not convincing.
“The State offers no reason for delay, but merely seeks to disturb a Final Judgment entered decades ago because the State is displeased with the order,” the ACLU stated in its motion. “It has, presumably, been displeased with the order since it issued. The State seeks to ignore the importance of the finality of the Court’s Final Judgment and there is no excuse for its delay.”
Finally, the ACLU argued that the plaintiffs still have standing to fight the state’s motion. The ACLU asserted the law of standing regarding the Establishment Clause has not changed and the “offended observer” standing continues to be recognized by the U.S. Supreme Court.
The Fraternal Order of the Eagles filed a motion and amicus brief with the federal district court on Jan. 21. In asking for permission to submit the brief, the organization said it has an interest in the case because it donated more than 100 monuments inscribe with the Ten Commandments to state and local governments across the country and wants to preserve all such monuments “for the good of the nation’s youth.”
The brief duplicates many of the state’s arguments, asserting the Ten Commandments are part of the country’s history and tradition. Also, the brief noted the many displays of religious symbols in public spaces, including the depictions of the Ten Commandments on federal buildings and on monuments placed on public land around the country. Also, in a footnote, it highlighted the number of state mottos that reference religion.
The monument “is part of an old tradition of Ten Commandments monuments and displays by state and local governments that acknowledge the role the commandments played in state and national history,” the Fraternal Order argued in its brief. “That tradition is part of an even older tradition – one that pre-dates the republic – of religious acknowledgements in American public life and practice.”
The ACLU is requesting the court deny the fraternal organization’s motion and brief, because the document does not present any “unique or special information” that would assist in deciding this case.
Moreover, the ACLU pointed out that the issue in this case is whether Federal Rule of Civil Procedure 60(b)(5) will allow for relief from a decades-old final judgment and the proposed amicus curiae brief does not address that at all.
To bolster its opposition, the ACLU quoted former 7th Circuit Judge Richard Posner from his 1997 ruling in Ryan v. Commodity Futures Trading Commission. “As Judge Posner noted concerning an amicus request in an appeal, ‘judges should be assiduous to bar the gates to amicus curiae briefs that fail to present convincing reasons why the parties’/briefs do not give us all the help we need for deciding the appeal.’”
Dwight Adams, an editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, including the Louisville Courier Journal.
The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org.
