Van Orden v. Perry, 545 U.S. 677 (2005), is 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 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 oft-used Lemon test in its analysis, reasoning that the display at issue was a "passive monument." Instead, the Court looked to "the nature of the monument and ... our Nation's history."
Procedural background
thumb|Monument with State Capitol in background
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. Van Orden sued under claiming an Establishment Clause violation and seeking an injunction for the removal of the statue. The District Court held that the State had a "valid secular purpose" in accepting the statute from the Fraternal Order of Eagles in recognition of their civic "efforts to reduce juvenile delinquency", and that a reasonable person would not interpret the monument as an endorsement of religion. The Court of Appeals for the 5th Circuit upheld the District Court's about the secular purpose and non-endorsement effect of displaying the statue.
The appeal of the 5th Circuit's decision was argued by Erwin Chemerinsky, 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.
Plurality opinion
The plurality opinion by Chief Justice Rehnquist stated that the Establishment Clause allowed the monument to be displayed on the grounds of the Texas State Capitol. Although the Lemon Test has not been overruled the plurality did not think it was "useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds". Instead, they created a historic intent test: "There is an unbroken history of official acknowledgement by all three branches of government of the role of religion in American life from at least 1789".
This opinion, delivered on the final day of the court's 2004-2005 term, would prove to be Rehnquist's last opinion as Chief Justice. He would die of thyroid cancer two months later, on September 3, 2005.
Concurrences
Justice Stephen Breyer concurs in the judgment, but not the plurality analysis. He looks to the purpose of the Religion Clauses to avoid the harmful social conflict based on religious divisiveness. He does not interpret the Establishment Clause to require hostility to the religious: "Such absolutism is not only inconsistent with our national traditions...but would also tend to promote the kind of social conflict the Establishment Clause seeks to avoid." He states that the current case is a borderline case that requires a fact-intensive legal judgment for which there is "no mechanical formula that can accurately draw the constitutional line in every case". Breyer states that the case can not be resolved solely on the fact that the text of the Commandments is religious:
He concurs in the judgment based on his analysis of other facts, including the length of time the display of the monument went unchallenged. Breyer says that removal of a longstanding monument based on the religious significance of the Ten Commandments text could create religious divisiveness :
<blockquote>This display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one. At the same time to reach a contrary conclusion here, based primarily on the religious nature of the tablets' text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions. Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid. Zelman, 536 U.S. at 717-729 (Breyer, J., dissenting)</blockquote>
Scalia's concurrence calls for "adopting an Establishment Clause jurisprudence that is in accord with our Nation's past and present practices, and that can be consistently applied". Clarence Thomas argues that the Establishment Clause should not be incorporated and that a jurisprudence that adopted a coercion requirement would be easier for Courts to apply: "Courts would not act as theological commissions, judging the meaning of religious matters."
Stevens' dissent
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
- List of United States Supreme Court cases, volume 545
- Stone v. Graham (1980)
- Glassroth v. Moore (11th Cir. 2003)
- McCreary County v. American Civil Liberties Union (2005)
- Pleasant Grove City v. Summum (2009)
- Green v. Haskell County Board of Commissioners (10th Cir. 2009)