545 U.S. 677, 125 S. Ct. 2854, 162 L. Ed. 2d 607 (2005)
The Texas State Capitol grounds encompass 22 acres containing 17 monuments and 21 historical markers commemorating the people, ideals, and events that compose Texan identity.1 Among these stands a 6-foot-high and 3½-foot-wide granite monolith inscribed with the text of the Ten Commandments.2 The monument is positioned north of the Capitol building, between the Capitol and the Supreme Court building.3 Carved above the text are an eagle grasping the American flag, an eye inside a pyramid, and two small tablets with ancient script.4 Below the text appear two Stars of David and the superimposed Greek letters Chi and Rho.5 The base bears the inscription presented to the people and youth of Texas by the Fraternal Order of Eagles of Texas 1961.6
The monument was donated to the State by the Fraternal Order of Eagles, a national social, civic, and patriotic organization.7 After acceptance, the State selected the site based on the recommendation of the state organization responsible for maintaining the Capitol grounds.8 The Eagles paid the cost of erecting the monument, and its dedication was presided over by two state legislators.9 The legislative record of the acceptance is limited to journal entries.10
Thomas Van Orden, a native Texan and Austin resident who graduated from Southern Methodist Law School and was once a licensed lawyer, has encountered the monument during his frequent visits to the Capitol grounds since 1995.11 These visits are typically to use the law library in the Supreme Court building located northwest of the Capitol.12
Forty years after the monument's erection and six years after Van Orden began encountering it frequently, he filed suit against state officials under 42 U.S.C. §1983.13 He sought a declaration that the monument's placement violates the Establishment Clause and an injunction requiring its removal.14 Following a bench trial, the District Court ruled against him.15 The Court of Appeals for the Fifth Circuit affirmed those holdings.16 The Supreme Court granted certiorari to review the case.17
Whether the Establishment Clause of the First Amendment allows the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds?18
The Establishment Clause permits a passive monument displaying the Ten Commandments on state capitol grounds when the display acknowledges religion's historical role in American life, carries dual religious and secular significance as part of a broader collection of historical markers, and lacks any proselytizing purpose or effect, as the analysis focuses on the monument's nature and the Nation's unbroken history of official religious acknowledgments rather than the Lemon test.19
Yes. The Texas monument is a passive display of the Ten Commandments that fits within the Nation's long tradition of governmental acknowledgments of religion's role in American life.20
The 22 acres surrounding the Texas State Capitol contain 17 monuments and 21 historical markers commemorating the people, ideals, and events that compose Texan identity.21 The 6-foot-high granite monolith stands among them north of the Capitol between the Capitol and the Supreme Court building.22 The monument was donated by the Fraternal Order of Eagles, a national social, civic, and patriotic organization.23 After the monument was accepted, the State selected the site on the recommendation of the organization responsible for maintaining the Capitol grounds.24 The Eagles paid the cost of erecting the monument, and the dedication was presided over by two state legislators.25
Thomas Van Orden, a native Texan and Austin resident who graduated from Southern Methodist Law School and was once a licensed lawyer, has encountered the monument during his frequent visits to the Capitol grounds since 1995. His visits are typically for the purpose of using the law library in the Supreme Court building, which is located just northwest of the Capitol building.26 Forty years after the monument's erection and six years after Van Orden began to encounter the monument frequently, he sued numerous state officials in their official capacities under Rev. Stat. §1979, 42 U. S. C. §1983, seeking both a declaration that the monument’s placement violates the Establishment Clause and an injunction requiring its removal.27 After a bench trial, the District Court held that the monument did not contravene the Establishment Clause.28 The Court of Appeals affirmed the District Court’s holdings with respect to the monument’s purpose and effect.29
The Ten Commandments have an undeniable historical meaning in America's heritage.30 Representations of the Ten Commandments appear throughout this Court and its grounds as well as the Nation's Capital.31 The Court's opinions have recognized the Decalogue's role. The monument's placement on 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.32 Van Orden apparently walked by the monument for a number of years before bringing this lawsuit.33 Texas has treated her Capitol grounds monuments as representing the several strands in the State’s political and legal history.34 The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government.35 We cannot say that Texas’ display of this monument violates the Establishment Clause of the First Amendment.36
The judgment of the Court of Appeals is affirmed because the Texas display of the Ten Commandments monument on its capitol grounds does not violate the Establishment Clause of the First Amendment.
Related opinions on this issue
Justice Scalia joined the opinion of the Chief Justice because it accurately reflects current Establishment Clause jurisprudence as applied some of the time.37 He would have preferred to reach the same result by adopting an Establishment Clause jurisprudence that is in accord with our Nation’s past and present practices.38 The central relevant feature of that approach is that there is nothing unconstitutional in a State’s favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.
Justice Thomas joined the Chief Justice’s opinion in full because the Chief Justice rightly recognizes that the monument has religious significance.39 He properly recognizes the role of religion in this Nation’s history and the permissibility of government displays acknowledging that history. 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.40
There is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional.41 In no sense does Texas compel petitioner Van Orden to do anything.42 The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library.43
The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause.44
Justice Breyer concurred in the judgment because this is a difficult borderline case in which the exercise of legal judgment, faithful to the underlying purposes of the Religion Clauses, is required rather than any single mechanical formula.45 As far as he could tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged until the single legal objection raised by petitioner.46 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.47
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.48
Joined by Justice Ginsburg
Justice Stevens dissented because the sole function of the monument on the grounds of Texas’ State Capitol is to display the full text of one version of the Ten Commandments.49 The message transmitted by Texas’ chosen display is quite plain: This State endorses the divine code of the Judeo-Christian God.50 In his judgment, at the very least, the Establishment Clause has created a strong presumption against the display of religious symbols on public property.51
Even if the message of the monument could fairly be said to represent the belief system of all Judeo-Christians, it would still run afoul of the Establishment Clause by prescribing a compelled code of conduct from one God that is rejected by prominent polytheistic sects and nontheistic religions.52
Joined by Justice Stevens, Justice Ginsburg
Justice Souter dissented because a governmental display of an obviously religious text cannot be squared with neutrality, except in a setting that plausibly indicates that the statement is not placed in view with a predominant purpose on the part of government either to adopt the religious message or to urge its acceptance by others.55 To ensure that the religious nature of the monument is clear to even the most casual passerby, the word Lord appears in all capital letters, so that the most eye-catching segment of the quotation is the declaration I AM the LORD thy God.56 But 17 monuments with no common appearance, history, or esthetic role scattered over 22 acres is not a museum, and anyone strolling around the lawn would surely take each memorial on its own terms without any dawning sense that some purpose held the miscellany together more coherently than fortuity and the edge of the grass.57