Van Orden v. Perry
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''Van Orden v. Perry'', 545 U.S. 677 (2005), was a
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
case involving whether a display of the
Ten Commandments The Ten Commandments (Biblical Hebrew עשרת הדברים \ עֲשֶׂרֶת הַדְּבָרִים, ''aséret ha-dvarím'', lit. The Decalogue, The Ten Words, cf. Mishnaic Hebrew עשרת הדיברות \ עֲשֶׂרֶת הַדִּבְ ...
on a monument given to the government at the
Texas State Capitol The Texas State Capitol is the capitol and seat of government of the American state of Texas. Located in downtown Austin, Texas, the structure houses the offices and chambers of the Texas Legislature and of the Governor of Texas. Designed in 1881 ...
in Austin violated the
Establishment Clause of the First Amendment In United States law, the Establishment Clause of the First Amendment to the United States Constitution, together with that Amendment's Free Exercise Clause, form the constitutional right of freedom of religion. The relevant constitutional text ...
. In a suit brought by Thomas Van Orden of Austin, the
United States Court of Appeals for the Fifth Circuit The United States Court of Appeals for the Fifth Circuit (in case citations, 5th Cir.) is a federal court with appellate jurisdiction over the district courts in the following federal judicial districts: * Eastern District of Louisiana * M ...
ruled in November 2003 that the displays were
constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princ ...
al, on the grounds that the
monument A monument is a type of structure that was explicitly created to commemorate a person or event, or which has become relevant to a social group as a part of their remembrance of historic times or cultural heritage, due to its artistic, hist ...
conveyed both a
religious Religion is usually defined as a social- cultural system of designated behaviors and practices, morals, beliefs, worldviews, texts, sanctified places, prophecies, ethics, or organizations, that generally relates humanity to supernatur ...
and
secular Secularity, also the secular or secularness (from Latin ''saeculum'', "worldly" or "of a generation"), is the state of being unrelated or neutral in regards to religion. Anything that does not have an explicit reference to religion, either negativ ...
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. American Civil Liberties Union of Kentucky'', 545 U.S. 844 (2005), was a case argued before the Supreme Court of the United States on March 2, 2005. At issue was whether the Court should continue to inquire into the purpose ...
'', a similar case challenging a display of the Ten Commandments at two county courthouses in
Kentucky Kentucky ( , ), officially the Commonwealth of Kentucky, is a state in the Southeastern region of the United States and one of the states of the Upper South. It borders Illinois, Indiana, and Ohio to the north; West Virginia and Virginia ...
. The appeal of the 5th Circuit's decision was argued by
Erwin Chemerinsky Erwin Chemerinsky (born May 14, 1953) is an American legal scholar known for his studies of United States constitutional law and federal civil procedure. Since 2017, Chemerinsky has been the dean of the UC Berkeley School of Law. Previously, he a ...
, a
constitutional law Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in fe ...
scholar A scholar is a person who pursues academic and intellectual activities, particularly academics who apply their intellectualism into expertise in an area of study. A scholar can also be an academic, who works as a professor, teacher, or researc ...
and the
Alston & Bird Alston & Bird LLP is an international law firm with over 800 lawyers in 13 offices throughout the United States, Europe, the UK, and Asia. The firm provides legal services to both domestic and international clients who conduct business worldwide ...
Professor of Law at
Duke University School of Law Duke University School of Law (Duke Law School or Duke Law) is the law school of Duke University, a private research university in Durham, North Carolina. One of Duke's 10 schools and colleges, the School of Law is a constituent academic unit t ...
, who represented Van Orden on a '' pro bono'' basis. Texas' case was argued by
Texas Attorney General The Texas attorney general is the chief legal officer
of the
Greg Abbott Gregory Wayne Abbott (born November 13, 1957) is an American politician, attorney, and former jurist serving as the 48th governor of Texas since 2015. A member of the Republican Party, he served as the 50th attorney general of Texas from 2002 ...
. An '' amicus curiae'' was presented on behalf of the respondents (the state of Texas) by then- Solicitor General
Paul Clement Paul Drew Clement (born June 24, 1966) is an American lawyer who served as U.S. Solicitor General from 2004 to 2008 and is known for his advocacy before the U.S. Supreme Court. He established his own law firm, Clement & Murphy, in 2022 after le ...
. 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 popular
Lemon test ''Lemon v. Kurtzman'', 403 U.S. 602 (1971), was a case argued before the Supreme Court of the United States.. The court ruled in an 8–0 decision that Pennsylvania's Nonpublic Elementary and Secondary Education Act (represented through David Kurtz ...
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." Chief Justice
William Rehnquist William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...
delivered the plurality opinion of the Court; Justice Stephen Breyer concurred in the judgment but wrote separately. The similar case of ''
McCreary County v. ACLU of Kentucky ''McCreary County v. American Civil Liberties Union of Kentucky'', 545 U.S. 844 (2005), was a case argued before the Supreme Court of the United States on March 2, 2005. At issue was whether the Court should continue to inquire into the purpose ...
'' was handed down the same day with the opposite result (also with a 5 to 4 decision). The " swing vote" in both cases was Breyer.


Background

The monument under challenge was 6-feet high and 3-feet wide which was installed in 1961. It was donated to the State of Texas by the
Fraternal Order of Eagles Fraternal Order of Eagles (F.O.E.) is a fraternal organization that was founded on February 6, 1898, in Seattle, Washington, by a group of six theater owners including John Cort (the first president), brothers John W. and Tim J. Considine, Harr ...
, a civic organization, which had received the support of
Cecil B. DeMille Cecil Blount DeMille (; August 12, 1881January 21, 1959) was an American film director, producer and actor. Between 1914 and 1958, he made 70 features, both silent and sound films. He is acknowledged as a founding father of the American cine ...
, who had directed the film ''
The Ten Commandments The Ten Commandments ( Biblical Hebrew עשרת הדברים \ עֲשֶׂרֶת הַדְּבָרִים, ''aséret ha-dvarím'', lit. The Decalogue, The Ten Words, cf. Mishnaic Hebrew עשרת הדיברות \ עֲשֶׂרֶת הַדִּבְ ...
'' (1956). 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 for its 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 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

The
plurality opinion A plurality opinion is in certain legal systems the opinion from one or more judges or justices of an appellate court which provides the rationale for the disposition of an appeal when no single opinion received the support of a majority of th ...
stated that the monument was constitutional, as it represented historical value and not purely religious value. The primary content is the text of the
Ten Commandments The Ten Commandments (Biblical Hebrew עשרת הדברים \ עֲשֶׂרֶת הַדְּבָרִים, ''aséret ha-dvarím'', lit. The Decalogue, The Ten Words, cf. Mishnaic Hebrew עשרת הדיברות \ עֲשֶׂרֶת הַדִּבְ ...
. An eagle grasping the American flag, an
Eye of Providence The Eye of Providence (or the All-Seeing Eye of God) is a symbol that depicts an eye, often enclosed in a triangle and surrounded by rays of light or glory, meant to represent divine providence, whereby the eye of God watches over humanity. ...
, 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 David The Star of David (). is a generally recognized symbol of both Jewish identity and Judaism. Its shape is that of a hexagram: the compound of two equilateral triangles. A derivation of the ''seal of Solomon'', which was used for decorative ...
and the superimposed
Greek letters The Greek alphabet has been used to write the Greek language since the late 9th or early 8th century BCE. It is derived from the earlier Phoenician alphabet, and was the earliest known alphabetic script to have distinct letters for vowels as we ...
Chi and Rho, which represent
Christ Jesus, likely from he, יֵשׁוּעַ, translit=Yēšūaʿ, label=Hebrew/Aramaic ( AD 30 or 33), also referred to as Jesus Christ or Jesus of Nazareth (among other names and titles), was a first-century Jewish preacher and religious ...
. The bottom of the monument bears the inscription in capitals "Presented to the People and Youth of Texas by The
Fraternal Order of Eagles Fraternal Order of Eagles (F.O.E.) is a fraternal organization that was founded on February 6, 1898, in Seattle, Washington, by a group of six theater owners including John Cort (the first president), brothers John W. and Tim J. Considine, Harr ...
of Texas 1961." Below the above matter, and the title "the Ten Commandments", the monument's text reads 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 ''
McCreary County v. ACLU of Kentucky ''McCreary County v. American Civil Liberties Union of Kentucky'', 545 U.S. 844 (2005), was a case argued before the Supreme Court of the United States on March 2, 2005. At issue was whether the Court should continue to inquire into the purpose ...
'', 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 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 as the other. In opening his discussion of reasoning Breyer states: 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": Breyer then goes on to state: Breyer continues to explain a position which seeks to balance between not "lead ngthe law to exhibit a
hostility Hostility is seen as form of emotionally charged aggressive behavior. In everyday speech it is more commonly used as a synonym for anger and aggression. It appears in several psychological theories. For instance it is a facet of neuroticism in ...
toward religion that has no place in our
Establishment Clause of the First Amendment In United States law, the Establishment Clause of the First Amendment to the United States Constitution, together with that Amendment's Free Exercise Clause, form the constitutional right of freedom of religion. The relevant constitutional text ...
traditions" and "recogniz ngthe danger of the
slippery slope A slippery slope argument (SSA), in logic, critical thinking, political rhetoric, and caselaw, is an argument in which a party asserts that a relatively small first step leads to a chain of related events culminating in some significant (usually ...
" and ultimately rests upon a "matter of degree
hich Ij ( fa, ايج, also Romanized as Īj; also known as Hich and Īch) is a village in Golabar Rural District, in the Central District of Ijrud County, Zanjan Province, Iran Iran, officially the Islamic Republic of Iran, and also ...
is, I believe, critical in a borderline case such as this one." Breyer concludes by stating he cannot agree with the plurality, nor with
Justice Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectua ...
's
dissent Dissent is an opinion, philosophy or sentiment of non-agreement or opposition to a prevailing idea or policy enforced under the authority of a government, political party or other entity or individual. A dissenting person may be referred to as ...
in ''
McCreary County v. ACLU of Kentucky ''McCreary County v. American Civil Liberties Union of Kentucky'', 545 U.S. 844 (2005), was a case argued before the Supreme Court of the United States on March 2, 2005. At issue was whether the Court should continue to inquire into the purpose ...
'', but while he does agree with Justice O'Connor's statement of principles in ''McCreary'', he 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 violates the establishment clause.


See also

*
List of United States Supreme Court cases, volume 545 This is a list of all the Supreme Court of the United States, United States Supreme Court cases from volume 545 of the ''United States Reports'': External links

{{SCOTUSCases, 545 2005 in United States case law ...
* ''
Stone v. Graham In ''Stone v. Graham'', 449 U.S. 39 (1980), the Supreme Court of the United States ruled that a Kentucky statute was unconstitutional and in violation of the Establishment Clause of the First Amendment, because it lacked a nonreligious, legislati ...
'' (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 ''Green v. Haskell County Board of Commissioners'', 568 F.3d 784 (10th Cir. 2009), was a First Amendment case concerning the placing of a Ten Commandments monument on public property, an alleged violation of the separation of church and state. Fa ...
'' (10th Cir. 2009)


References


Sources


''Van Orden v. Perry''
oral arguments and opinions on Oyez.org * U.S. Supreme Court docket for 03-1500 ''Van Orden v. Perry''
''Van Orden v. Perry''
First Amendment Center online library (archived) *

', Sylvia Moreno, ''The Washington Post'', February 21, 2005 *

', Warren Richey, ''Christian Science Monitor'', June 28, 2005


External links



includes video coverage {{Rick Perry United States Supreme Court cases Establishment Clause case law Ten Commandments United States Supreme Court cases of the Rehnquist Court 2005 in United States case law 2005 in religion United States lawsuits History of Austin, Texas Rick Perry Legal history of Texas