Van Orden v. Perry
545 U.S. 677 (2005)

  • Texas placed a monument of the Ten Commandments on the grounds of the State Capitol in Austin.
    • The monument had been donated by a civic group.
  • 40 years later, Van Orden sued for an injunction, claiming that the displays violated the Establishment Clause of the 1st Amendment.
  • The Trial Court found Texas. Van Orden appealed.
    • The Trial Court found that the monument served a valid secular purpose.
    • The Trial Court found that a reasonable observer would not interpret the monument as a government endorsement of religion.
  • The Appellate Court affirmed. Van Orden appealed.
  • The US Supreme Court affirmed.
    • The US Supreme Court found that “simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.”
    • The Court found that the monument, when considered in context, conveyed a historic and social meaning rather than an intrusive religious endorsement.
    • The Court found that since the monument had been around for 40 years without anyone having a problem with it, if the Court were to suddenly demand its removal, that wouldn’t seem neutral towards religion, it would seem more like a strike against religion.
  • Compare this case to McCreary County v. American Civil Liberties Union of Kentucky (545 U.S. 844 (2005)), which had very similar facts, but found that the display of the Ten Commandments was an unconstitutional infringement of the Establishment Clause.
    • Strangely, both cases were decided the same day.
    • Justice Breyer was the swing vote, and indicated that while he agreed with the logic of the majority in McCreary, slight differences in the facts made him decide that the display in Van Orden had primarily a secular message, not a religious one. In addition, the display in Van Orden had been there for 40 years with no problem before someone sued to get it removed, implying that people didn’t really have a problem with it.
      • You could argue that the purpose of the Establishment Clause is to prevent divisiveness due to religious differences. In this case, it was arguable that the consequences of removing the monument would be greater than the consequences of just leaving it there.