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Van Orden v. Perry

Citation. 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005).
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Citation. 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005).

Brief Fact Summary.

Plaintiff brought suit challenging to constitutionality of a monument on the grounds of the Texas State Capitol that featured religious elements, arguing it violated the Establishment Clause of the First Amendment.

Synopsis of Rule of Law.

Displays of both religious and governmental significance do not violate the Establishment Clause of the First Amendment.


The 22 acres surrounding the Texas State Capitol contained 17 monuments and 21 historical markers commemorating the people, ideals, and events of Texan identity. The monument at issue was located between the Capitol and Texas Supreme Court building. It consisted of the Ten Commandments as well as two Stars of David, an eagle grasping the American flag, an eye inside a pyramid, the Greek letters Chi and Rho, representing Christ. Plaintiff brought suit 40 years after its erection and six years after encountering it frequently, arguing it violated the Establishment Clause of the First Amendment.


Whether the Texas monument violates the Establishment Clause of the First Amendment.


No. The Texas monument does not violate the Establishment Clause of the First Amendment.


Justice Stevens

It is our duty to interpret the Constitution not merely by asking what it meant to observers at the time of founding, but instead by deriving from the Clause’s text and history the broad principles that remain valid today.

The judgement of Court here stands for the proposition that the Constitution permits governmental displays of scared religious texts. This makes a mockery of the constitutional ideal that government must remain neutral between religion and irreligion.

Justice Souter

A governmental display of an obviously religious text cannot be squared with neutrality. Anyone strolling on the lawn around the capitol would surely take each memorial on its own terms.

Additionally, I do not see a persuasive argument in the Court’s observation that 40 years have passed. A slow walk to the court house, even if it took 40 years, is not much evidentiary help in applying the Establishment Clause.


Justice Scalia

There is nothing unconstitutional in a state’s favoring religion generally, honoring God through public prayer and acknowledgement, or venerating the Ten Commandments in a non-proselytizing manner.

Justice Thomas

This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing Establishment Clause challenges, and return to the original meaning of the Clause.

There is no question based on its original meaning that the Ten Commandments at issue here is constitutional. In no sense did Texas compel Plaintiff to do anything. He need not stop or even look at it, let alone express support for it or adopt the Commandments as guides for his life.

Justice Breyer

On one hand, the Commandments text undeniably has. religious message. On the other, to determine the message, we must examine also how the text is used.

Forty years passed before its presence was challenged. 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 cultural heritage. At the same time, I fear that to rule differently would create the very kind of religiously based divisiveness the Establishment Clause seeks to avoid.


The Lemon test 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. Such acknowledgement of the role played by the Ten Commandments in our nation’s heritage are common throughout America. We need only look within our own court room.

There are of course limits to the display of religious messages or symbols. But here, the monuments on the grounds are meant to acknowledge the state’s history. The inclusion of the Ten Commandments serves dual purposes, partaking of both religion and government. We cannot say Texas’ display of this monument violates the Establishment Clause of the First Amendment. Judgement affirmed.

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