Van Orden v. Perry, No. 03-1500 (U.S. June 27, 2005)
The U.S. Supreme Court has ruled that a Ten Commandments display on the grounds of the Texas state capitol does not violate the Establishment Clause. Chief Justice Rehnquist delivered a plurality opinion, joined by Justices Scalia, Kennedy, and Thomas. Justice Breyer filed a separate opinion concurring in the judgment but disagreeing with the plurality's reasoning. Justice Stevens filed a dissenting opinion in which he was joined by Justice Ginsburg. Justice O'Connor also filed a dissenting opinion. Justice Souter filed a dissent in which Justices Stevens and Ginsburg joined. The plurality opinion, while conceding that Ten Commandments convey a religious message, argued that the context in which the Ten Commandments are used demonstrates that the display also conveys a secular moral message about proper standards of social conduct and a message about the historical significance those standards and the law. Chief Justice Rehnquist concluded that the test established in
Lemon v. Kurtzman, 403 U.S. 602 (1971), is not useful for evaluating the kind of passive display at issue in the case and that the Texas display, amid numerous other nearby monuments and considering similar representations throughout the country, reflects the Decalogue's historical and cultural significance. The Chief Justice distinguished the Court's holding in
Stone v. Graham, 449 U.S. 39 (1980), which disallowed a classroom Ten Commandments display, as the "consequence of the 'particular concerns that arise in the context of public elementary and secondary schools.'" Nothing in
Stone, he argued, would extend its holding "beyond the context of public schools." Justice Scalia's concurrence emphasized his belief that "there is nothing unconstitutional in a State's favoring religion generally." Justice Thomas's concurrence called for the scrapping of all Establishment Clause tests save the coercion test. Justice Breyer's concurrence in the judgment agreed with the plurality's conclusion that the Texas display serves a "mixed but primarily nonreligious purpose" that satisfies the purpose, advancement, and entanglement prongs of the
Lemon test, but he argued that, in such fact-specific cases, none of the various Establishment Clause tests can substitute for the "exercise of legal judgment." Justice Stevens' dissent took issue with what he characterized as the plurality's notion that the Establishment Clause principle of religious neutrality compels government to favor religion in general. He argued that the display's clear Judeo-Christian religious message oversteps the principle of neutrality by favoring religion. Justice Souter's dissent also emphasized that the Ten Commandments "constitute a religious statement, that their message is inherently religious, and that the purpose of singling them out in a display is clearly the same." Like Justice Stevens, he concluded that 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."
Van Orden v. Perry, No. 03-1500 (U.S. June 27, 2005)
[Link to full opinion]