Van Orden v. Perry

• Decision Date: 12 November 2003
• Docket Number: No. 02-51184.,02-51184.
• Citation: 351 F.3d 173
• Parties: Thomas VAN ORDEN, Plaintiff-Appellant, v. Rick PERRY, in his official capacity as Governor of Texas and Chairman, State Preservation Board; David Dewhurst, in his official capacity as Co-Vice Chairman, State Preservation Board and President of the Senate of Texas; Tom Craddick, in his official capacity as Co-Vice Chairman, State Preservation Board and Speaker of the House of Representatives of Texas; Chris Harris, in his official capacity as Member of the State Preservation Board; Peggy Hamrick, in her official capacity as Member of the State Preservation Board; Jocelyn Levi Straus, in her official capacity as Member of the Texas Preservation Board; Charlynn Doering, in her official capacity as Interim Executive Director, State Preservation Board, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

351 F.3d 173

Thomas VAN ORDEN, Plaintiff-Appellant, v. Rick PERRY, in his official capacity as Governor of Texas and Chairman, State Preservation Board; David Dewhurst, in his official capacity as Co-Vice Chairman, State Preservation Board and President of the Senate of Texas; Tom Craddick, in his official capacity as Co-Vice Chairman, State Preservation Board and Speaker of the House of Representatives of Texas; Chris Harris, in his official capacity as Member of the State Preservation Board; Peggy Hamrick, in her official capacity as Member of the State Preservation Board; Jocelyn Levi Straus, in her official capacity as Member of the Texas Preservation Board; Charlynn Doering, in her official capacity as Interim Executive Director, State Preservation Board, Defendants-Appellees.

No. 02-51184.

United States Court of Appeals, Fifth Circuit.

November 12, 2003.

COPYRIGHT MATERIAL OMITTED

Thomas Van Orden (argued), Austin, TX, pro se.

R. Ted Cruz (argued), Paul Michael Winget-Hernandez, Amy Warr, Austin, TX, for Defendants-Appellees.

Mathew D. Staver, Rena Marie-Anne Lindevaldsen, Joel Lee Oster, Erik William Stanley, Anita Leigh Staver, Liberty Counsel, Longwood, FL, for Liberty Counsel, Amicus Curiae.

David S. Lill, Clark, Thomas & Winters, Austin, TX, Kelly J. Shackelford, Liberty Legal Institute, Plano, TX, for Liberty Legal Institute, Amicus Curiae.

Appeal from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM, STEWART, and PRADO, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The plaintiff, Thomas Van Orden, asks the federal courts to order the State of Texas to remove from the grounds of the State Capitol a granite monument in which the Ten Commandments are etched. In a bench trial, the district court considered documents, testimony, and an extensive stipulation of facts filed by the parties. In a careful opinion, the court rejected the claim of First Amendment violations and entered judgment for the State. The plaintiff appeals. We affirm.

I

The Capitol, with its surrounding twenty-two acres, was dedicated on May 16, 1888. The first monument was erected on these grounds three years later. It was "a bronze statue of a Texan holding a muzzle-loading rifle atop a Texas Sunset Red granite base." Names of the Texans who died in the battle of the Alamo are inscribed on its four granite supports. Sixteen additional monuments have since been erected on the capitol grounds, a protected National Historic Landmark maintained by the State Preservation Board.¹

The Visitor Services of the State provides tours of the Capitol Building with its historic statuary, portraits, and memorabilia, and it publishes a written guide for walking tours of the grounds for visitors who wish to continue with the outdoor displays. The guided tour of the Capitol Building offers a wide array of monuments plaques, and seals depicting both the secular and religious history of Texas. They include a tribute to African American legislators, a Confederate plaque, a plaque commemorating the donors of the granite for the building, and a plaque commemorating the war with Mexico. There is a Six Flags Over Texas display on the floor of the Capitol Rotunda featuring the Mexican Eagle and serpent — which as visitors will learn, is a symbol of Aztec prophecy — together with the Confederate Seal containing the inscription "Deo Vindice" (God will judge). Should the tour continue to the Supreme Court Building, visitors will find inscribed above the bench the phrase "Sicut Patribus, Sit Deus Nobis" (As God was to our fathers, may He also be to us). Before reaching the Supreme Court building from the Capitol, visitors will encounter four other monuments in the immediate vicinity: a tribute to Texas children; a statue of a pioneer woman holding a child in tribute to the role of women in Texas history; a replica of the Statue of Liberty; and a tribute to the Texans lost at Pearl Harbor.

The Ten Commandments monument was a gift of the Fraternal Order of Eagles, accepted by a joint resolution of the House and Senate in early 1961. It is a granite monument approximately six feet high and three and a half feet wide. In the center of the monument, a large panel displays a nonsectarian version of the text of the Commandments. Above this text, the monument contains depictions of two small tablets with ancient Hebrew script. There are also several symbols etched into the monument: just above the text, there is an American eagle grasping the American flag; higher still, there is an eye inside a pyramid closely resembling the symbol displayed on the one-dollar bill. Just below the text are two small Stars of David, as well as a symbol representing Christ: two Greek letters, Chi and Rho, superimposed on each other. Just below the text of the commandments, offset in a decorative, scroll-shaped box, the monument bears the inscription: "PRESENTED TO THE PEOPLE AND YOUTH OF TEXAS BY THE FRATERNAL ORDER OF EAGLES OF TEXAS 1961."

The parties stipulated that (1) the sparse legislative history "contain[s] no record of any discussion about the monument, or the reasons for its acceptance, and is comprised entirely of House and Senate Journal entries"; (2) the State selected the site on the recommendation of the Building Engineering and Management Division of the State Board of Control; (3) the expenses "were borne exclusively by the Eagles"; (4) the monument requires virtually no maintenance; and (5) the dedication of the monument was presided over by Senator Bruce Reagan and Representative Will Smith. There is no official record that any other person participated.

The main entry into the Capitol Building is on its south side facing Congress Street. The monument displaying the Ten Commandments is located on the north side of the Capitol Building on a line drawn between the Supreme Court and the Capitol Rotunda, about 75 feet from the Capitol Building, and 123 feet from the Supreme Court Building.

II

The plaintiff argues that Texas "accepted" the monument "for the purpose of promoting the Commandments as a personal code of conduct for youths and [b]ecause the Commandments are a sectarian religious code, their promotion and endorsement by the State as a personal code contravenes the First Amendment." He asserts that the district court's finding that the State had a secular purpose for the display is not supported by the evidence and that a reasonable viewer would perceive the display of the decalogue as a State advancement and endorsement of religion favoring the Jewish and Christian faiths.

The State replies that the display serves a secular purpose as found by the district court and a reasonable observer would not conclude that the State is seeking to advance, endorse, or promote religion by its display. To the contrary, the State observes that the display has been in place without legal attack for over forty-two years and, viewed in context, is part of the state's commemorative display of significant events and strands of Texas history. It argues that a reasonable person touring the Capitol Building and its historical grounds would not see the display of the decalogue as State endorsement of religion. Rather, with its simple presentation and location between the Capitol Building and the Texas Supreme Court Building, a reasonable viewer would see the monument as a recognition of the large role of the decalogue in the development of Texas law. Equally, with its proximity to the pioneer woman holding a child and to the figures of children at play, it would be seen as a fit location to express appreciation for the work of the Eagles with American youth.

III

Through the Fourteenth Amendment, Texas is controlled by the command of the First Amendment that it "shall make no law respecting an establishment of religion."² In its thirty-two year life, Lemon v. Kurtzman³ has been criticized but remains a required starting point in deciding contentions that state displays of symbols and writings with a religious message are contrary to the First Amendment. Its three-part test requires that a court consider (1) whether the government activity in question has a secular purpose, (2) whether the activity's primary effect advances or inhibits religion, and (3) whether the government activity fosters an excessive entanglement with religion.⁴ A challenged activity must survive each prong to pass constitutional scrutiny. The plaintiff here concedes that excessive entanglement, the third inquiry, is not an issue in this case. We need only consider, then, whether Texas lacked a secular purpose and whether the primary effect of the display is to advance religion.

In refining these two tests, the Supreme Court has interpreted the First Amendment to prohibit government action that has either the purpose or effect of endorsing or disapproving of religion.⁵ A display has the purpose of endorsing religion when it "`convey[s] or attempt[s] to convey a message that religion or a particular religious belief is favored or preferred.'"⁶ And to determine whether it has the effect of endorsing religion we ask "what viewers may fairly understand to be the purpose of the display."⁷ This is the observation of a reasonable observer, not of the uninformed, the casual passerby, the heckler, or the reaction of a single individual. Rather, the reasonable observer standard attempts to capture the "concern with the political community writ large."⁸

The guiding principle is government neutrality toward religion in the sense that a state cannot favor religion over non-religion or one religion over another. Yet neutrality is not self-defining. It does not demand that the state be blind to the pervasive presence of strongly held views about religion with myriad faiths and doctrines. Nor could it do so. Religion and government cannot be ruthlessly separated without encountering other First Amendment constraints, including its guaranty of the free exercise...