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

Annotate this Case




certiorari to the united states court of appeals for the fifth circuit

No. 03–1500.Argued March 2, 2005—Decided June 27, 2005

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 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.

Held: 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, 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. While the Court has sometimes pointed to Lemon v. Kurtzman, 403 U. S. 602, for the governing test, Lemon is not useful in dealing with the sort of passive monument that Texas has erected on 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. 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. 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. 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. 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, 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, 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 to violate the Establishment Clause. Pp. 3–12.

   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 (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. 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. 1–8.

   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.

Primary Holding

The Establishment Clause does not prohibit per se all forms of government action that may have religious content or a religious message.


The state of Texas placed 17 monuments and 21 historical markers on the grounds of its state capitol building to commemorate certain aspects of Texan identity. They included a monolith of the Ten Commandments, which offended Van Orden when he walked past it to reach the Texas Supreme Court Library. He brought a claim against the state on the grounds that the monument violated the Establishment Clause.



  • William Hubbs Rehnquist (Author)
  • Antonin Scalia
  • Anthony M. Kennedy
  • Clarence Thomas

While the Ten Commandments are a religious text, their author (Moses) is commonly perceived as a lawgiver. The display was presented in the context of the state's political and legal history, and it should be analyzed with regard to the relationship between them. In this setting, it does not violate the Establishment Clause, in part because the three-factor test used in Lemon v. Kurtzman (1971) does not apply.


  • Clarence Thomas (Author)

Under the original meaning of the Establishment Clause, it should apply only to the federal government rather than the states. Moreover, its applications should be limited to situations that involve actual legal coercion, according to the meaning of "establishment" at the time of the Constitution. The state has not legally compelled the plaintiff to take any action.


  • Stephen G. Breyer (Author)

The context of the monument is critical to this case, and it appears that the state used the Ten Commandments in a predominantly secular way. The monument had stood in this location for 40 years before anyone challenged it, which suggests that most visitors understand its secular purpose. Finding that it is unconstitutional on the basis merely that it is religious might cause the type of religious tension that the Establishment Clause is intended to prevent.


  • John Paul Stevens (Author)
  • Ruth Bader Ginsburg

The presence of the monument on state property suggests that the state endorses the Judeo-Christian God. Its original purpose of combating juvenile delinquency can be achieved through secular means, and the message is clearly connected to a particular religion. Many of the Constitution's Framers had contrasting views about the separation of church and state, so it is impossible to choose a certain historical interpretation as a guide. Moreover, the text of the Constitution rather than their apparent intent should control.


  • David H. Souter (Author)
  • John Paul Stevens
  • Ruth Bader Ginsburg

If the state chooses to display an inherently religious text, it must have a predominant purpose other than conveying its religious message. Other depictions of Moses and the Ten Commandments around the state supreme court reveal a predominantly secular purpose. This situation is different because there is no clear connection between this monument and the other displays on the grounds of the state capitol. The monument induces the improper conclusion that the state favors adherents of a certain religion over other citizens.


  • Antonin Scalia (Author)


  • Sandra Day O'Connor (Author)

Case Commentary

Historical depictions that have religious context will be acceptable under the First Amendment. For example, the painting of Moses in the Supreme Court is permissible because Moses is generally known as a lawmaker in addition to a religious figure.

Disclaimer: Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case law published on our site. Justia makes no guarantees or warranties that the annotations are accurate or reflect the current state of law, and no annotation is intended to be, nor should it be construed as, legal advice. Contacting Justia or any attorney through this site, via web form, email, or otherwise, does not create an attorney-client relationship.

Disclaimer: Official Supreme Court case law is only found in the print version of the United States Reports. Justia case law is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.