Van Orden v. Perry - Wikipedia

Van Orden v. Perry
Argued March 2, 2005
Decided June 27, 2005
Full case nameThomas Van Orden v. Rick Perry, in his official capacity as Governor of Texas and Chairman, State Preservation Board, et al.
Docket no.03-1500
Citations545 U.S. 677 (more)
125 S. Ct. 2854; 162 L. Ed. 2d 607; 2005 U.S. LEXIS 5215; 18 Fla. L. Weekly Fed. S 494
Case history
PriorJudgment for defendant, 2002 U.S. Dist. LEXIS 26709 (W.D. Tex. Oct. 2, 2002); affirmed, 351 F.3d 173 (5th Cir. 2003); rehearing denied, 89 Fed. Appx. 905 (5th Cir. 2004); cert. granted, 543 U.S. 923 (2004).
A Ten Commandments monument erected on the grounds of the Texas State Capitol did not violate the Establishment Clause, because the monument, when considered in context, conveyed a historic and social meaning rather than an intrusive religious endorsement.
Court membership
Chief Justice
William Rehnquist
Associate Justices
John P. Stevens · Sandra Day O'Connor
Antonin Scalia · Anthony Kennedy
David Souter · Clarence Thomas
Ruth Bader Ginsburg · Stephen Breyer
Case opinions
PluralityRehnquist, joined by Scalia, Kennedy, Thomas
ConcurrenceBreyer (in judgment)
DissentStevens, joined by Ginsburg
DissentSouter, joined by Stevens, Ginsburg
Laws applied
U.S. Const. amend. I

Van Orden v. Perry, 545 U.S. 677 (2005), was a United States Supreme Court case involving whether a display of the Ten Commandments on a monument given to the government at the Texas State Capitol in Austin violated the Establishment Clause of the First Amendment.

In a suit brought by Thomas Van Orden of Austin, the United States Court of Appeals for the Fifth Circuit ruled in November 2003 that the displays were constitutional, on the grounds that the monument conveyed both a religious and secular message. Van Orden appealed, and in October 2004 the high court agreed to hear the case at the same time as it heard McCreary County v. ACLU of Kentucky, a similar case challenging a display of the Ten Commandments at two county courthouses in Kentucky.

The appeal of the 5th Circuit's decision was argued by Erwin Chemerinsky, a constitutional law scholar and the Alston & Bird Professor of Law at Duke University School of Law, who represented Van Orden on a pro bono basis. Texas' case was argued by Texas Attorney General Greg Abbott. An amicus curiae was presented on behalf of the respondents (the state of Texas) by then-Solicitor General Paul Clement.

The Supreme Court ruled on June 27, 2005, by a vote of 5 to 4, that the display was constitutional. The Court chose not to employ the popular Lemon test in its analysis, reasoning that the display at issue was a "passive monument."[1] Instead, the Court looked to "the nature of the monument and ... our Nation's history."[1] Chief Justice William Rehnquist delivered the plurality opinion of the Court; Justice Stephen Breyer concurred in the judgment but wrote separately. The similar case of McCreary County v. ACLU of Kentucky was handed down the same day with the opposite result (also with a 5 to 4 decision). The "swing vote" in both cases was Breyer.


Ten Commandments Monument at the Texas State Capitol

The monument under challenge was 6-feet high and 3-feet wide which was installed in 1961. It was donated to the State of Texas by the Fraternal Order of Eagles, a civic organization, which had received the support of Cecil B. DeMille, who had directed the film The Ten Commandments (1956).[2] The State accepted the monument and selected a site for it based on the recommendation of the state agency responsible for maintaining the Capitol grounds. The donating organization paid for its erection. Two state legislators presided over the dedication of the monument.

The monument was erected on the Capitol grounds, behind the capitol building (between the Texas Capitol and Supreme Court buildings). The surrounding 22 acres (89,000 m2) contained 17 monuments and 21 historical markers commemorating the "people, ideals, and events that compose Texan identity."

Plurality opinion[edit]

The plurality opinion stated that the monument was constitutional, as it represented historical value and not purely religious value. The primary content is the text of the Ten Commandments. An eagle grasping the American flag, an Eye of Providence, 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 in capitals "Presented to the People and Youth of Texas by The Fraternal Order of Eagles of Texas 1961."

Below the above matter, and the title "the Ten Commandments", the monument's text reads in full:

I AM the LORD thy God. Thou shalt have no other gods before me. Thou shalt not make to thyself any graven images. Thou shalt not take the Name of the Lord thy God in vain. Remember the Sabbath day, to keep it holy. Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee. Thou shalt not kill. Thou shalt not commit adultery. Thou shalt not steal. Thou shalt not bear false witness against thy neighbor. Thou shalt not covet thy neighbor's house. Thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor's. 

Thomas Van Orden challenged the constitutionality of the monument. A native Texan, Van Orden passed by the monument frequently when he would go to the Texas Supreme Court building to use its law library.

Breyer's concurrence[edit]

Monument with State Capitol in background

Breyer's concurrence in this case is made all the more interesting because on the surface it appears that he voted quite differently in McCreary County v. ACLU of Kentucky, a case which was heard and decided at the same time and seems, to the casual observer, virtually identical. However, in Van Orden v. Perry, Breyer submitted an opinion separate from that of the Court, while in McCreary he did not. As a result, the Van Orden case was decided by a plurality, not a majority as the other.

In opening his discussion of reasoning Breyer states:

The case before us is a borderline case. It concerns a large granite monument bearing the text of the Ten Commandments located on the grounds of the Texas State Capitol. On the one hand, the Commandments' text undeniably has a religious message, invoking, indeed emphasizing, the Deity. On the other hand, focusing on the text of the Commandments alone cannot conclusively resolve this case. Rather, to determine the message that the text here conveys, we must examine how the text is used. And that inquiry requires us to consider the context of the display.

He then goes on to list points which are stated to be insufficient individually, but together seem to provide a reasonable basis for "secular purpose":

  1. The monument's 40-year history on the Texas state grounds indicates that nonreligious aspects of the tablets' message predominate.
  2. The group that donated the monument, the Fraternal Order of Eagles, is a private civic (and primarily secular) organization. Who, while interested in the religious aspect of the Ten Commandments, sought to highlight the Commandments' role in shaping civic morality as part of that organization's efforts to combat juvenile delinquency.
  3. The Eagles' consulted with a committee composed of members of several faiths in order to find a nonsectarian text — an act which underscores the group's ethics-based motives.
  4. The tablets, as displayed on the monument, prominently acknowledge that the Eagles donated the display.
  5. The physical setting of the monument suggests little or nothing of the sacred.
    • The monument sits in a large park containing 17 monuments and 21 historical markers, all designed to illustrate the "ideals" of those who settled in Texas and of those who have lived there since that time.
    • The setting does not readily lend itself to meditation or any other religious activity.
    • The setting does provide a context of history and moral ideals.
    • The larger display (together with the display's inscription about its origin) communicates to visitors that the State sought to reflect moral principles, illustrating a relation between ethics and law that the State's citizens, historically speaking, have endorsed. That is to say, the context suggests that the State intended the display's moral message — an illustrative message reflecting the historical "ideals" of Texans — to predominate.

Breyer then goes on to state:

If these factors provide a strong, but not conclusive, indication that the Commandments' text on this monument conveys a predominantly secular message, a further factor is determinative here. As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect, primarily to promote religion over nonreligion, to "engage in" any "religious practic[e]," to "compel" any "religious practic[e]," or to "work deterrence" of any "religious belief." Schempp, 374 U. S., at 305 (Goldberg, J., concurring). Those 40 years suggest that the public visiting the capitol grounds has considered the religious aspect of the tablets' message as part of what is a broader moral and historical message reflective of a cultural heritage.

Breyer continues to explain a position which seeks to balance between not "lead[ing] the law to exhibit a hostility toward religion that has no place in our Establishment Clause of the First Amendment traditions" and "recogniz[ing] the danger of the slippery slope" and ultimately rests upon a "matter of degree [which] is, I believe, critical in a borderline case such as this one."

Breyer concludes by stating he cannot agree with the plurality, nor with Justice Scalia's dissent in McCreary County v. ACLU of Kentucky, but while he does agree with Justice O'Connor's statement of principles in McCreary, he disagrees with her evaluation of the evidence as it bears on the applying those principles to Van Orden v. Perry.

Stevens' dissent[edit]

Stevens' dissenting opinion essentially stated that, in formulating a ruling for this case, the court had to consider whether the display had any significant relation to the specific and secular history of the state of Texas or the United States as a whole. Ultimately, Stevens asserted that the display "has no purported connection to God's role in the formation of Texas or the founding of our Nation" and therefore could not be protected on the basis that it was a display dealing with secular ideals. In fact, Stevens says that the display transmits the message that Texas specifically endorses the Judeo-Christian values of the display and thus violates the establishment clause.

See also[edit]


  1. ^ a b "Van Orden v. Perry 545 U.S. 677 (2005)". Justia Law. Retrieved 2016-03-12.
  2. ^ Greenhouse, Linda (February 28, 2005). "The Ten Commandments Reach the Supreme Court". The New York Times. Retrieved 2010-02-10.


External links[edit]