Van Orden v. Perry, 545 U.S. 677, 125 S. Ct. 2854; 162 L. Ed. 2d 607 (2005)

Van Orden v. Perry, 545 U.S. 677, 125 S. Ct. 2854; 162 L. Ed. 2d 607 (2005)

Facts—Thomas Van Orden, a native Texan and once-licensed lawyer, challenged the existence of a monument to the Ten Commandments on the grounds of the state capitol. The District Court and the Court of Appeals regarded the display as a “passive monument” that would not convey the message that the state was attempting to endorse a specific religion.

Question—Does the establishment clause allow the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds?


ReasonsC.J. Rehnquist (5–4). This monument is one of seventeen monuments and twenty-one historical markers commemorating various phases of Texas identity. It was contributed in 1961 by the Fraternal Order of Eagles as a means of combating juvenile delinquency. Supreme Court cases point “Janus like . . . in two directions in applying the Establishment Clause.” One set of cases points “toward the strong role played by religion and religious traditions throughout our Nation’s history,” while the other recognizes “that governmental intervention in religious matters can itself endanger religious freedom.” “Our institutions presuppose a Supreme Being, yet these institutions must not press religious observances upon their citizens.” Although the Court sometimes applies the three-part Lemon test in establishment clause cases, “it is not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds. Instead, our analysis is driven both by the nature of the monument and by our Nation’s history.” This history is filled with references to religion, including the presence of many such monuments in the nation’s capitol. Such contexts are different than those involved in Stone v. Graham (1980), where the court invalidated a display of the Ten Commandments in school classrooms. The display here is “far more passive” than such daily reminders.

J. Scalia, concurring. It would be better to reach this result by adjusting establishment clause jurisprudence to recognize “that there is nothing unconstitutional in a State’s favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.”

J. Thomas, concurring. The Court should return to the “original meaning” of the establishment clause, which was designed simply to prevent legal coercion. Nothing compels Van Orden “to do anything.” The Court should abandon precedents that permit “even the slightest public recognition of religion to constitute an establishment of religion.” Nor should it deny the religious significance of religious symbols.

J. Breyer, concurring. There is “no single mechanical formula that can accurately draw the constitutional line in every case, but “the relation between government and religion is one of separation, but not of mutual hostility and suspicion.” This is a “borderline” case, but the physical setting “suggests little or nothing of the sacred,” and the case differs from more overt displays as in the companion McCreary County case.

J. Stevens, dissenting. “The sole function of the monument on the grounds of Texas’s State Capitol is to display the full text of one version of the Ten Commandments.” The establishment clause “has created a strong presumption against the display of religious symbols on public property.” Such displays lead to “divisiveness and exclusion,” and violate the principle of “neutrality.” The monument has a religious purpose, and it specifically points to the Judeo-Christian God. Its display on public property implies “official recognition.” The words of the Framers cannot answer questions related to a nation that is now religiously more diverse. Indeed, if the establishment clause were interpreted simply by the Framers, it would only limit federal establishments. The Court should interpret the First Amendment “with one eye towards our Nation’s history and the other fixed on its democratic aspirations.” “Fortunately, we are not bound by the Framers’ expectations—we are bound by the legal principles they enshrined in our Constitution.”

J. O’Connor, dissenting. Precedents require neutrality as a general rule. A monument with the full text of the Ten Commandments differs from most statutes that the court majority has referenced. The setting is not that of a museum, but “a state capitol building” which “is the civic home of every one of the State’s citizens.” The monument is not constitutional simply because it has been standing for forty years.

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