Van Orden v. Perry
Encyclopedia
Ten Commandments
The Ten Commandments, also known as the Decalogue , are a set of biblical principles relating to ethics and worship, which play a fundamental role in Judaism and most forms of Christianity. They include instructions to worship only God and to keep the Sabbath, and prohibitions against idolatry,...
on a monument given to the government at the Texas
Texas
Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
State Capitol
Texas State Capitol
The Texas State Capitol is located in Austin, Texas, and is the fourth building to be the house of Texas government in Austin. It houses the chambers of the Texas Legislature and the office of the governor of Texas. It was designed originally during 1881 by architect Elijah E. Myers, and was...
in Austin
Austin, Texas
Austin is the capital city of the U.S. state of :Texas and the seat of Travis County. Located in Central Texas on the eastern edge of the American Southwest, it is the fourth-largest city in Texas and the 14th most populous city in the United States. It was the third-fastest-growing large city in...
violated the Establishment Clause of the First Amendment
Establishment Clause of the First Amendment
The Establishment Clause is the first of several pronouncements in the First Amendment to the United States Constitution, stating, Together with the Free Exercise Clause The Establishment Clause is the first of several pronouncements in the First Amendment to the United States Constitution,...
.
In a suit brought by Thomas Van Orden
Thomas Van Orden
Thomas David Van Orden born September 1, 1944 – died November 11, 2010 was an American lawyer who challenged the constitutionality of displaying the Ten Commandments on the grounds of the Texas Capitol under the Establishment Clause of the U.S. Constitution. Van Orden v Gov Perry et al, 125 S. Ct....
of Austin, the United States Court of Appeals for the Fifth Circuit
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...
ruled in November 2003 that the displays were constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
al, on the grounds that the monument
Monument
A monument is a type of structure either explicitly created to commemorate a person or important event or which has become important to a social group as a part of their remembrance of historic times or cultural heritage, or simply as an example of historic architecture...
conveyed both a religious
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
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
McCreary County v. ACLU of Kentucky
McCreary County v. ACLU of Kentucky, , is a case which was argued before the Supreme Court of the United States on March 2, 2005. At issue is whether government-sponsored displays of the Ten Commandments in county courthouses violate the Establishment Clause of the First Amendment.In a suit...
, a similar case challenging a display of the Ten Commandments at two county courthouses in Kentucky
Kentucky
The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...
.
The appeal of the 5th Circuit's decision was argued by Erwin Chemerinsky
Erwin Chemerinsky
Erwin Chemerinsky is an American lawyer and law professor. He is a prominent scholar in United States constitutional law and federal civil procedure...
, a constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
scholar and the Alston & Bird
Alston & Bird
Alston & Bird LLP, commonly abbreviated , is the largest law firm in Atlanta and the forty-third largest in the United States.-History:...
Professor of Law at Duke University
Duke University
Duke University is a private research university located in Durham, North Carolina, United States. Founded by Methodists and Quakers in the present day town of Trinity in 1838, the school moved to Durham in 1892. In 1924, tobacco industrialist James B...
School of Law, who represented Van Orden on a pro bono
Pro bono
Pro bono publico is a Latin phrase generally used to describe professional work undertaken voluntarily and without payment or at a reduced fee as a public service. It is common in the legal profession and is increasingly seen in marketing, technology, and strategy consulting firms...
basis. Texas' case was argued by Texas Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
Greg Abbott
Greg Abbott
Gregory Wayne "Greg" Abbott is the Texas Attorney General, and is the second Republican since Reconstruction to serve in that role. Abbott was sworn in on December 2, 2002, following John Cornyn's election to the U.S. Senate...
. An amicus curiae
Amicus curiae
An amicus curiae is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it...
was presented on behalf of the respondents (the state of Texas) by then-Solicitor General Paul Clement
Paul Clement
Paul Drew Clement is a former United States Solicitor General and current Georgetown University legal professor. He is also an adjunct professor at New York University School of Law. He was nominated by President George W...
.
The Supreme Court ruled on June 27, 2005, by a vote of 5 to 4, that the display was constitutional. Chief Justice William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
delivered the plurality opinion of the Court; Justice Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
concurred in the judgment but wrote separately. The similar case of McCreary County v. ACLU of Kentucky was handed down the same day with the opposite verdict (also with a 5 to 4 decision). The "swing vote
Swing vote
Swing vote is a term used to describe a vote that may go to any of a number of candidates in an election, or, in a two-party system, may go to either of the two dominant political parties...
" in both cases was Breyer.
Factual background
Fraternal Order of Eagles
Fraternal Order of Eagles International is a fraternal organization that was founded on February 6, 1898, in Seattle, Washington by a group of six theater owners including John Cort , brothers John W. and Tim J. Considine, Harry Leavitt , Mose Goldsmith and Arthur Williams...
, a civic organization, with the support of Cecil B. DeMille
Cecil B. DeMille
Cecil Blount DeMille was an American film director and Academy Award-winning film producer in both silent and sound films. He was renowned for the flamboyance and showmanship of his movies...
, who had directed the film The Ten Commandments
The Ten Commandments (1956 film)
The Ten Commandments is a 1956 American epic film that dramatized the biblical story of the Exodus, in which the Hebrew-born Moses, an adopted Egyptian prince, becomes the deliverer of the Hebrew slaves. The film, released by Paramount Pictures in VistaVision on October 5, 1956, was directed by...
. The State accepted the monument and selected a site for it based on the recommendation of the state agency responsible for maintaining the Capitol grounds. The donating organization paid the cost of erection. Two state legislators presided over the dedication of the monument.
The monument was erected on the Capitol grounds, behind the capitol building (between the Texas Capitol and Supreme Court
Texas Supreme Court
The Supreme Court of Texas is the court of last resort for non-criminal matters in the state of Texas. A different court, the Texas Court of Criminal Appeals, is the court of last resort for criminal matters.The Court is composed of a Chief Justice and eight Associate Justices...
buildings). The surrounding 22 acres (89,000 m²) contained 17 monuments and 21 historical markers commemorating the "people, ideals, and events that compose Texan identity."
Plurality opinion
According to the plurality opinionPlurality opinion
A plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
, the
- primary content is the text of the Ten CommandmentsTen CommandmentsThe Ten Commandments, also known as the Decalogue , are a set of biblical principles relating to ethics and worship, which play a fundamental role in Judaism and most forms of Christianity. They include instructions to worship only God and to keep the Sabbath, and prohibitions against idolatry,...
. An eagle grasping the American flag, an eyeEye of ProvidenceThe Eye of Providence is a symbol showing an eye often surrounded by rays of light or a glory and usually enclosed by a triangle...
inside of a pyramid, and two small tablets with what appears to be an ancient script are carved above the text of the Ten Commandments. Below the text are two Stars of DavidStar of DavidThe Star of David, known in Hebrew as the Shield of David or Magen David is a generally recognized symbol of Jewish identity and Judaism.Its shape is that of a hexagram, the compound of two equilateral triangles...
and the superimposed Greek lettersGreek alphabetThe Greek alphabet is the script that has been used to write the Greek language since at least 730 BC . The alphabet in its classical and modern form consists of 24 letters ordered in sequence from alpha to omega...
Chi and RhoLabarumThe labarum was a vexillum that displayed the "Chi-Rho" symbol ☧, formed from the first two Greek letters of the word "Christ" — Chi and Rho . It was used by the Roman emperor Constantine I...
, which represent Christ. The bottom of the monument bears the inscription "PRESENTED TO THE PEOPLE AND YOUTH OF TEXAS BY THE FRATERNAL ORDER OF EAGLES OF TEXAS 1961."
The monument's text read in full:
- I AM the LORD thy God.
- Thou shalt have no other gods before me.
- Thou shalt not make to thyself any graven images.
- Thou shalt not take the Name of the Lord thy God in vain.
- Remember the Sabbath day, to keep it holy.
- Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.
- Thou shalt not kill.
- Thou shalt not commit adultery.
- Thou shalt not steal.
- Thou shalt not bear false witness against thy neighbor.
- Thou shalt not covet thy neighbor's house.
- Thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor's.
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.
Breyer's concurrence
Breyer's concurrence in this case is made all the more interesting because on the surface it appears that he voted quite differently in the McCreary County v. ACLU of KentuckyMcCreary County v. ACLU of Kentucky
McCreary County v. ACLU of Kentucky, , is a case which was argued before the Supreme Court of the United States on March 2, 2005. At issue is whether government-sponsored displays of the Ten Commandments in county courthouses violate the Establishment Clause of the First Amendment.In a suit...
, a case which was heard and decided at the same time and seems, to the casual observer, virtually identical. However, in Van Orden v. Perry, Breyer submitted an opinion
Opinion
In general, an opinion is a subjective belief, and is the result of emotion or interpretation of facts. An opinion may be supported by an argument, although people may draw opposing opinions from the same set of facts. Opinions rarely change without new arguments being presented...
separate from that of the Court, while in McCreary he did not. As a result, the Van Orden case was decided by a plurality, not a majority
Majority
A majority is a subset of a group consisting of more than half of its members. This can be compared to a plurality, which is a subset larger than any other subset; i.e. a plurality is not necessarily a majority as the largest subset may consist of less than half the group's population...
as the other.
In opening his discussion of reasoning Breyer states:
- The case before us is a borderline case. It concerns a large granite monument bearing the text of the Ten Commandments located on the grounds of the Texas State Capitol. On the one hand, the Commandments' text undeniably has a religious message, invoking, indeed emphasizing, the Deity. On the other hand, focusing on the text of the Commandments alone cannot conclusively resolve this case. Rather, to determine the message that the text here conveys, we must examine how the text is used. And that inquiry requires us to consider the context of the display.
He then goes on to list points which are stated to be insufficient individually, but together seem to provide a reasonable basis for "secular purpose
Secularity
Secularity is the state of being separate from religion.For instance, eating and bathing may be regarded as examples of secular activities, because there may not be anything inherently religious about them...
":
- The monument's 40-year history on the Texas state grounds indicates that nonreligious aspects of the tablets' message predominate.
- The group that donated the monument, the Fraternal Order of EaglesFraternal Order of EaglesFraternal Order of Eagles International is a fraternal organization that was founded on February 6, 1898, in Seattle, Washington by a group of six theater owners including John Cort , brothers John W. and Tim J. Considine, Harry Leavitt , Mose Goldsmith and Arthur Williams...
, is a private civic (and primarily secular) organization. Who, while interested in the religious aspect of the Ten Commandments, sought to highlight the Commandments' role in shaping civic morality as part of that organization's efforts to combat juvenile delinquencyJuvenile delinquencyJuvenile delinquency is participation in illegal behavior by minors who fall under a statutory age limit. Most legal systems prescribe specific procedures for dealing with juveniles, such as juvenile detention centers. There are a multitude of different theories on the causes of crime, most if not...
. - The Eagles' consultated with a committee composed of members of several faiths in order to find a nonsectarian text — an act which underscores the group's ethics-based motives.
- The tablets, as displayed on the monument, prominently acknowledge that the Eagles donated the display.
- The physical setting of the monument suggests little or nothing of the sacred.
- The monument sits in a large park containing 17 monuments and 21 historical markers, all designed to illustrate the "ideals" of those who settled in Texas and of those who have lived there since that time.
- The setting does not readily lend itself to meditation or any other religious activity.
- The setting does provide a context of history and moral ideals.
- The larger display (together with the display's inscription about its origin) communicates to visitors that the State sought to reflect moral principles, illustrating a relation between ethics and law that the State's citizens, historically speaking, have endorsed. That is to say, the context suggests that the State intended the display's moral message — an illustrative message reflecting the historical "ideals" of Texans — to predominate.
Breyer then goes on to state:
- If these factors provide a strong, but not conclusive, indication that the Commandments' text on this monument conveys a predominantly secular message, a further factor is determinative here. As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, 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, primarily to promote religion over nonreligion, to "engage in" any "religious practic[e]," to "compel" any "religious practic[e]," or to "work deterrence" of any "religious belief." Schempp, 374 U. S., at 305 (Goldberg, J., concurring). 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.
Breyer continues to explain a position which seeks to balance between not "lead[ing] the law to exhibit a hostility
Hostility
Hostility is a form of angry internal rejection or denial in psychology. It is a part of personal construct psychology, developed by George Kelly...
toward religion that has no place in our Establishment Clause of the First Amendment traditions" and "recogniz[ing] the danger of the slippery slope
Slippery slope
In debate or rhetoric, a slippery slope is a classic form of argument, arguably an informal fallacy...
" and ultimately rests upon a "matter of degree [which] is, I believe, critical in a borderline case such as this one."
Breyer concludes by stating he cannot agree with the plurality
Plurality opinion
A plurality opinion is the opinion from a group of justices, often in an appellate court, in which no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but received more support than any other...
, nor with Justice Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
's dissent
Dissent
Dissent is a sentiment or philosophy of non-agreement or opposition to a prevailing idea or an entity...
in McCreary County v. ACLU of Kentucky
McCreary County v. ACLU of Kentucky
McCreary County v. ACLU of Kentucky, , is a case which was argued before the Supreme Court of the United States on March 2, 2005. At issue is whether government-sponsored displays of the Ten Commandments in county courthouses violate the Establishment Clause of the First Amendment.In a suit...
, but while he does agree with Justice O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
's statement of principles in McCreary, but disagrees with her evaluation of the evidence as it bears on the applying those principles to Van Orden v. Perry.
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, the display violates the establishment clause.See also
- List of United States Supreme Court cases, volume 545
- List of United States Supreme Court cases
- Separation of church and state in the United StatesSeparation of church and state in the United StatesThe phrase "separation of church and state" , attributed to Thomas Jefferson and others, and since quoted by the Supreme Court of the United States, expresses an understanding of the intent and function of the Establishment Clause of the First Amendment to the Constitution of the United States...
External links
- Religion & Ethics Newsweekly (PBS), includes video coverage
Sources
- Van Orden v. Perry, opinion on Findlaw
- Supreme Court on a Shoestring, The Washington Post, February 21, 2005
- [ U.S. Supreme Court docket for 03-1500 Van Orden v. Perry]
- "First Amendment Center online library"