545 U.S. 677 (2005), 03-1500, Van Orden v. Perry

Docket Nº:No. 03-1500.
Citation:545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607
Party Name:Thomas VAN ORDEN, Petitioner, v. Rick PERRY, in his official capacity as Governor of Texas and Chairman, State Preservation Board, et al.
Case Date:June 27, 2005
Court:United States Supreme Court

Page 677

545 U.S. 677 (2005)

125 S.Ct. 2854, 162 L.Ed.2d 607

Thomas VAN ORDEN, Petitioner,


Rick PERRY, in his official capacity as Governor of Texas and Chairman, State Preservation Board, et al.

No. 03-1500.

United States Supreme Court

June 27, 2005

Argued March 2, 2005.


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[125 S.Ct. 2855] SYLLABUS [*]

Among the 21 historical markers and 17 monuments surrounding the Texas State Capitol is a 6-foot-high monolith inscribed with the Ten Commandments. The legislative record illustrates that, after accepting the monument from the Fraternal Order of Eagles – a national social, civic, and patriotic organization – the State selected a site for it based on the recommendation of the state organization that maintains the capitol grounds. Petitioner, an Austin resident who encounters the monument during his frequent visits to those grounds, brought this 42 U.S.C. §1983 suit seeking a declaration that the monument's placement violates the First Amendment's Establishment Clause and an injunction requiring its removal. Holding that the monument did not contravene [125 S.Ct. 2856] the Clause, the District Court found that the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency, and that a reasonable observer, mindful of history, purpose, and context, would not conclude that this passive monument conveyed the message that the State endorsed religion. The Fifth Circuit affirmed.


The judgment is affirmed.

351 F.3d 173, affirmed.

THE CHIEF JUSTICE, joined by Justice SCALIA, Justice KENNEDY, and Justice THOMAS, concluded that the Establishment Clause allows the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds. Reconciling the strong role played by religion and religious traditions throughout our Nation's history, see School Dist. of Abington Township v. Schempp, 374 U.S. 203, 212-213, 83 S.Ct. 1560, 10 L.Ed.2d 844, with the principle that governmental intervention in religious matters can itself endanger religious freedom requires that the Court neither abdicate its responsibility to maintain a division between church and state nor evince a hostility to religion, e.g., Zorach v. Clauson, 343 U.S. 306, 313-314, 72 S.Ct. 679, 96 L.Ed. 954. While the Court has sometimes pointed to Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, for the governing test, Lemon is not useful in dealing with the sort of passive monument that Texas has erected on

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its capitol grounds. Instead, the analysis should be driven by both the monument's nature and the Nation's history. From at least 1789, there has been an unbroken history of official acknowledgment by all three branches of government of religion's role in American life. Lynch v. Donnelly, 465 U.S. 668, 674, 104 S.Ct. 1355, 79 L.Ed.2d 604. Texas' display of the Commandments on government property is typical of such acknowledgments. Representations of the Commandments appear throughout this Court and its grounds, as well as the Nation's Capital. Moreover, the Court's opinions, like its building, have recognized the role the Decalogue plays in America's heritage. See, e.g., McGowan v. Maryland, 366 U.S. 420, 442, 462, 81 S.Ct. 1101, 6 L.Ed.2d 393. While the Commandments are religious, they have an undeniable historical meaning. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause. See, e.g., Lynch v. Donnelly, supra, at 680, 687, 104 S.Ct. 1355. There are, of course, limits to the government's display of religious messages or symbols. For example, this Court held unconstitutional a Kentucky statute requiring the posting of the Ten Commandments in every public schoolroom. Stone v. Graham, 449 U.S. 39, 41-42, 101 S.Ct. 192, 66 L.Ed.2d 199. However, neither Stone itself nor subsequent opinions have indicated that Stone's holding would extend beyond the context of public schools to a legislative chamber, see Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019, or to capitol grounds. Texas' placement of the Commandments monument on its capitol grounds is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day. Indeed, petitioner here apparently walked by the monument for years before bringing this suit. Schempp, supra, and Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467, distinguished. Texas has treated her capitol grounds monuments as representing several strands in the State's political and legal history. The inclusion of the Commandments monument in this group has a dual significance, partaking of both religion and government, that cannot be said [125 S.Ct. 2857] to violate the Establishment Clause. Pp. 2859-2864.

Justice BREYER concluded that this is a difficult borderline case where none of the Court's various tests for evaluating Establishment Clause questions can substitute for the exercise of legal judgment. See, e.g., School Dist. of Abington Township v. Schempp, 374 U.S. 203, 305, 83 S.Ct. 1560, 10 L.Ed.2d 844 (Goldberg, J., concurring). That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the First Amendment's Religion Clauses – to assure the fullest possible scope of religious liberty and tolerance for all, to avoid the religious divisiveness that promotes social conflict, and to maintain the separation of church and state. No exact formula can dictate a resolution to fact-intensive cases such as this.

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Despite the Commandments' religious message, an inquiry into the context in which the text of the Commandments is used demonstrates that the Commandments also convey a secular moral message about proper standards of social conduct and a message about the historic relation between those standards and the law. The circumstances surrounding the monument's placement on the capitol grounds and its physical setting provide a strong, but not conclusive, indication that the Commandments' text as used on this monument conveys a predominantly secular message. The determinative factor here, however, is that 40 years passed in which the monument's presence, legally speaking, went unchallenged (until the single legal objection raised by petitioner). Those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their belief systems, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to establish religion. See ibid. The public visiting the capitol grounds is more likely to have considered the religious aspect of the tablets' message as part of what is a broader moral and historical message reflective of a cultural heritage. For these reasons, the Texas display falls on the permissible side of the constitutional line. Pp. 2858-2861.

REHNQUIST, C. J., announced the judgment of the Court and delivered an opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined. SCALIA, J., and THOMAS, J., filed concurring opinions. BREYER, J., filed an opinion concurring in the judgment. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined. O'CONNOR, J., filed a dissenting opinion. SOUTER, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined.


Paul D. Clement, for the United States as amicus curiae, by special leave of the Court, supporting the respondents.

Erwin Chemerinsky, Counsel of Record, Duke University School of Law Science, Durham, North Carolina, Mark Rosenbaum, Los Angeles, California, Paul Hoffman, Schonbrun, DiSimone, Seplow, Harris & Hoffman, Venice, California, Adam B. Wolf, UCLA School of Law, Los Angeles, California, Counsel for Petitioner.

Greg Abbot, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Burrach, Deputy Attorney General for Litigation, Don R. Willett, Deputy Attorney General for Legal Counsel, R. Ted Cruz, Solicitor General, Counsel of Record, Joel L. Thollander, Assistant Solicitor General, Amy Warr, Assistant Solicitor General, Paul Michael Winget-Hernandez [125 S.Ct. 2858] , Assistant Attorney General, Austin, Texas, Counsel for Respondents.


Chief Justice REHNQUIST announced the judgment of the Court and delivered an opinion, in which Justice SCALIA, Justice KENNEDY, and JUSTICE THOMAS join.

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The question here is whether the Establishment Clause of the First Amendment allows the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds. We hold that it does.

The 22 acres surrounding the Texas State Capitol contain 17 monuments and 21 historical markers commemorating the "people, ideals, and events that compose Texan identity." Tex. H. Con. Res. 38, 77th Leg. (2001). 1 The monolith challenged here stands 6-feet high and 3 1/2-feet wide. It is located to the north of the Capitol building, between the Capitol and the Supreme Court building. Its primary content is the text of the Ten Commandments. An eagle grasping the American flag, an eye inside of a pyramid, and two small tablets with what appears to be an ancient script are carved above the text of the Ten Commandments. Below the text are two Stars of David and the superimposed Greek letters Chi and Rho, which represent Christ. The bottom of the monument bears the inscription "PRESENTED

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The legislative record surrounding the State's acceptance of the monument from the Eagles – a national social, civic, and patriotic organization – is limited to legislative journal entries....

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