Van Orden v. Perry, 545 U.S. 677 (2005) was a case decided by the Supreme Court of the United States of America, involving whether a government-sponsored display of the Ten Commandments 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 court houses 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.
The Supreme Court ruled on June 27, 2005, by a vote of 5 to 4, that the display was constitutional. Chief Justice Rehnquist delivered the plurality opinion of the Court; Justice 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 verdict (also with a 5 to 4 decision). The "swing vote" between these two cases was Justice Stephen Breyer.
The monument challenged was 6-feet high and 3-feet wide. It was donated to the State of Texas by the Fraternal Order of Eagles, a civic organization. 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 the cost of erection. Two state legislators presided over the dedication of the monument.
The monument was erected on the Capitol grounds, 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."
According to the plurality opinion, the
- 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 TO THE PEOPLE AND YOUTH OF TEXAS BY THE FRATERNAL ORDER OF EAGLES OF TEXAS 1961."
The monument's text read 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 in this case is made all the more interesting because on the surface it appears that he voted quite differently in the 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":
- The monument's 40-year history on the Texas state grounds indicates that nonreligious aspects of the tablets' message predominate.
- 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.
- The Eagles' consultated 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.
- The tablets, as displayed on the monument, prominently acknowledge that the Eagles donated the display.
- 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, but disagrees with her evaluation of the evidence as it bears on the applying those principles to Van Orden v. Perry.
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, the display violates the establishment clause. Stevens cites Professor Paul Finkelman in his dissent.
- List of United States Supreme Court cases, volume 545
- List of United States Supreme Court cases
- Separation of church and state in the United States
- Religion & Ethics Newsweekly (PBS), includes video coverage
- Van Orden v. Perry, opinion on Findlaw
- Supreme Court on a Shoestring, The Washington Post, February 21, 2005
- U.S. Supreme Court docket for 03-1500 Van Orden v. Perry
- "First Amendment Center online library"