Van Orden v. Perry

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Van Orden v. Perry

Van Orden v. Perry

Text of U.S. Supreme court decision: Van Orden v. Perry, in his official capacity as Governor of Texas and Chairman, State Preservation Board, et al. Certiorari to the United States Court of Appeals For the Fifth Circuit No. 03-1500 Argued March 2, 2005—Decided June 27, 2005


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545 U.S. 677 (2005), argued 2 March 2005, decided 27 June 2005 by vote of 5 to 4; Rehnquist for the Court; Scalia, Thomas, and Breyer concurring; Stevens, O’Connor, Souter, and Ginsburg in dissent. On the grounds of the Texas State Capitol there are seventeen monuments and twenty-one memorials; among them is a six-foot tall monument inscribed with the Ten Commandments. The monument also includes several nonreligious symbols, such as an eagle with an American flag. At the bottom, the monument has an inscription indicating that it was a gift in 1961 from the Fraternal Order of Eagles of Texas, a civic organization. A citizen challenged the monument's placement on the capitol grounds under the Establishment Clause of the First Amendment.

The Supreme Court held that the monument did not violate the Establishment Clause. Finding the test from Lemon v. Kurtzman (1971) unhelpful in analyzing this sort of passive monument, the Court instead examined the nature of the monument and the history of the nation. It observed that acknowledgements of the role of religion, including the Ten Commandments, are common in our nation's tradition. The Court did not discount the religious message of the Ten Commandments, but it found that the existence of a religious message is insufficient to violate the Establishment Clause. The Ten Commandments also has a historical significance, and the monument serves both a religious and historical function. Furthermore, the monument did not violate other Establishment Clause principles. In particular, it had no improper religious purpose; it was not in a location that raises special concerns, such as a public elementary or secondary school; and it manifested a relatively passive use of the religious text, which passers-by confronted only occasionally.

Justice Antonin Scalia concurred, maintaining that the Establishment Clause should allow a state to favor religion generally, through public prayer and an acknowledgement of God. Also concurring, Justice Clarence Thomas insisted that the Establishment Clause should not apply to the states and, in any event, should not prohibit government actions unless they coerce individual religious belief or practice.

Justice Stephen Breyer concurred, arguing against rigid reliance on doctrinal tests and in favor of the exercise of legal judgment according to the basic purposes of the Establishment Clause. Finding this to be a borderline case, Justice Breyer nevertheless concluded that the text of the Ten Commandments was not used in a manner that suggested government endorsement of its religious message, given its physical setting, the circumstances surrounding its placement, and its forty-year history on the capitol grounds. Justice Breyer distinguished the Ten Commandments display that the Court held unconstitutional in a case decided the same day, McCreary Country v. ACLU of Kentucky. He joined the majority, comprised of the dissenters in this case, to reject the McCreary County display because, in his view, the history of that display revealed the religious objectives of those who mounted it. It was therefore an effort to promote religion not to reflect the secular impact of a religiously inspired document.

Justices John Paul Stevens, Sandra Day O’Connor, David H. Souter, and Ruth Bader Ginsburg dissented in various combinations, finding, for different reasons, that the monument conveyed a religious message.


Subjects: Law.

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