(Slip Opinion) OCTOBER TERM, 2004 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
VAN ORDEN v. PERRY, IN HIS OFFICIAL CAPACITY AS
GOVERNOR OF TEXAS AND CHAIRMAN, STATE
PRESERVATION BOARD, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 03–1500. Argued March 2, 2005—Decided June 27, 2005
Among the 21 historical markers and 17 monuments surrounding the
Texas State Capitol is a 6-foot-high monolith inscribed with the Ten
Commandments. The legislative record illustrates that, after accept-
ing the monument from the Fraternal Order of Eagles—a national
social, civic, and patriotic organization—the State selected a site for
it based on the recommendation of the state organization that main-
tains the capitol grounds. Petitioner, an Austin resident who encoun-
ters the monument during his frequent visits to those grounds,
brought this 42 U. S. C. §1983 suit seeking a declaration that the
monument’s placement violates the First Amendment’s Establish-
ment Clause and an injunction requiring its removal. Holding that
the monument did not contravene the Clause, the District Court
found that the State had a valid secular purpose in recognizing and
commending the Eagles for their efforts to reduce juvenile delinquency,
and that a reasonable observer, mindful of history, purpose, and con-
text, would not conclude that this passive monument conveyed the mes-
sage that the State endorsed religion. The Fifth Circuit affirmed.
Held: The judgment is affirmed.
351 F. 3d 173, affirmed.
THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY,
and JUSTICE THOMAS, concluded that the Establishment Clause al-
lows the display of a monument inscribed with the Ten Command-
ments on the Texas State Capitol grounds. Reconciling the strong
role played by religion and religious traditions throughout our Na-
tion’s history, see School Dist. of Abington Township v. Schempp, 374
2 VAN ORDEN v. PERRY
Syllabus
U. S. 203, 212–213, with the principle that governmental interven-
tion in religious matters can itself endanger religious freedom re-
quires that the Court neither abdicate its responsibility to maintain a
division between church and state nor evince a hostility to religion,
e.g., Zorach v. Clauson, 343 U. S. 306, 313–314. While the Court has
sometimes pointed to Lemon v. Kurtzman, 403 U. S. 602, for the gov-
erning test, Lemon is not useful in dealing with the sort of passive
monument that Texas has erected on its capitol grounds. Instead,
the analysis should be driven by both the monument’s nature and the
Nation’s history. From at least 1789, there has been an unbroken
history of official acknowledgment by all three branches of govern-
ment of religion’s role in American life. Lynch v. Donnelly, 465 U. S.
668, 674. Texas’ display of the Commandments on government prop-
erty is typical of such acknowledgments. Representations of the
Commandments appear throughout this Court and its grounds, as
well as the Nation’s Capital. Moreover, the Court’s opinions, like its
building, have recognized the role the Decalogue plays in America’s
heritage. See, e.g., McGowan v. Maryland, 366 U. S. 420, 442, 462.
While the Commandments are religious, they have an undeniable
historical meaning. Simply having religious content or promoting a
message consistent with a religious doctrine does not run afoul of the
Establishment Clause. See, e.g., Lynch v. Donnelly, supra, at 680,
687. There are, of course, limits to the government’s display of reli-
gious messages or symbols. For example, this Court held unconstitu-
tional a Kentucky statute requiring the posting of the Ten Com-
mandments in every public schoolroom. Stone v. Graham, 449 U. S.
39, 41–42. However, neither Stone itself nor subsequent opinions
have indicated that Stone’s holding would extend beyond the context
of public schools to a legislative chamber, see Marsh v. Chambers,
463 U. S. 783, or to capitol grounds. Texas’ placement of the Com-
mandments monument on its capitol grounds is a far more passive
use of those texts than was the case in Stone, where the text con-
fronted elementary school students every day. Indeed, petitioner
here apparently walked by the monument for years before bringing
this suit. Schempp, supra, and Lee v. Weisman, 505 U. S. 577, dis-
tinguished. Texas has treated her capitol grounds monuments as
representing several strands in the State’s political and legal history.
The inclusion of the Commandments monument in this group has a
dual significance, partaking of both religion and government, that
cannot be said to violate the Establishment Clause. Pp. 3–12.
JUSTICE BREYER concluded that this is a difficult borderline case
where none of the Court’s various tests for evaluating Establishment
Clause questions can substitute for the exercise of legal judgment.
See, e.g., School Dist. of Abington Township v. Schempp, 374 U. S. 203,
Cite as: 545 U. S. ____ (2005) 3
Syllabus
305 (Goldberg, J., concurring). That judgment is not a personal
judgment. Rather, as in all constitutional cases, it must reflect and
remain faithful to the underlying purposes of the First Amendment’s
Religion Clauses—to assure the fullest possible scope of religious lib-
erty and tolerance for all, to avoid the religious divisiveness that
promotes social conflict, and to maintain the separation of church
and state. No exact formula can dictate a resolution to fact-intensive
cases such as this. Despite the Commandments’ religious message,
an inquiry into the context in which the text of the Commandments
is used demonstrates that the Commandments also convey a secular
moral message about proper standards of social conduct and a mes-
sage about the historic relation between those standards and the law.
The circumstances surrounding the monument’s placement on the
capitol grounds and its physical setting provide a strong, but not con-
clusive, indication that the Commandments’ text as used on this
monument conveys a predominantly secular message. The determi-
native factor here, however, is that 40 years passed in which the
monument’s presence, legally speaking, went unchallenged (until the
single legal objection raised by petitioner). Those 40 years suggest
more strongly than can any set of formulaic tests that few individu-
als, whatever their belief systems, are likely to have understood the
monument as amounting, in any significantly detrimental way, to a
government effort to establish religion. See ibid. The public visiting
the capitol grounds is more likely to have considered the religious as-
pect of the tablets’ message as part of what is a broader moral and
historical message reflective of a cultural heritage. For these reasons,
the Texas display falls on the permissible side of the constitutional
line. Pp. 1–8.
REHNQUIST, C. J., announced the judgment of the Court and delivered
an opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined.
SCALIA, J., and THOMAS, J., filed concurring opinions. BREYER, J., filed
an opinion concurring in the judgment. STEVENS, J., filed a dissenting
opinion, in which GINSBURG, J., joined. O’CONNOR, J., filed a dissenting
opinion. SOUTER, J., filed a dissenting opinion, in which STEVENS and
GINSBURG, JJ., joined.
Cite as: 545 U. S. ____ (2005) 1
Opinion of REHNQUIST, C. J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 03–1500
_________________
THOMAS VAN ORDEN, PETITIONER v. RICK PERRY,
IN HIS OFFICIAL CAPACITY AS GOVERNOR OF TEXAS
AND CHAIRMAN, STATE PRESERVATION
BOARD, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 27, 2005]
CHIEF JUSTICE REHNQUIST announced the judgment of
the Court and delivered an opinion, in which JUSTICE
SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join.
The question here is 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. We hold that it does.
The 22 acres surrounding the Texas State Capitol con-
tain 17 monuments and 21 historical markers commemo-
rating the “people, ideals, and events that compose Texan
identity.” Tex. H. Con. Res. 38, 77th Leg. (2001).1 The
monolith challenged here stands 6-feet high and 3½-feet
wide. It is located to the north of the Capitol building,
——————
1 The monuments are: Heroes of the Alamo, Hood’s Brigade, Confed-
erate Soldiers, Volunteer Fireman, Terry’s Texas Rangers, Texas
Cowboy, Spanish-American War, Texas National Guard, Ten Com-
mandments, Tribute to Texas School Children, Texas Pioneer Woman,
The Boy Scouts’ Statue of Liberty Replica, Pearl Harbor Veterans,
Korean War Veterans, Soldiers of World War I, Disabled Veterans, and
Texas Peace Officers.
2 VAN ORDEN v. PERRY
Opinion of REHNQUIST, C. J.
between the Capitol and the Supreme Court building. Its
primary content is the text of the Ten Commandments.
An eagle grasping the American flag, an eye 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 David
and the superimposed Greek letters Chi and Rho, 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.” App. to Pet. for Cert. 21.
The legislative record surrounding the State’s accep-
tance of the monument from the Eagles—a national social,
civic, and patriotic organization—is limited to legislative
journal entries. After the monument was accepted, the
State selected a site for the monument based on the rec-
ommendation of the state organization responsible for
maintaining the Capitol grounds. The Eagles paid the
cost of erecting the monument, the dedication of which
was presided over by two state legislators.
Petitioner Thomas Van Orden is a native Texan and a
resident of Austin. At one time he was a licensed lawyer,
having graduated from Southern Methodist Law School.
Van Orden testified that, since 1995, he has encountered
the Ten Commandments monument during his frequent
visits to the Capitol grounds. 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.
Forty years after the monument’s erection and six years
after Van Orden began to encounter the monument fre-
quently, he sued numerous state officials in their official
capacities under Rev. Stat. §1979, 42 U. S. C. §1983, seek-
ing both a declaration that the monument’s placement
violates the Establishment Clause and an injunction
requiring its removal. After a bench trial, the District
Cite as: 545 U. S. ____ (2005) 3
Opinion of REHNQUIST, C. J.
Court held that the monument did not contravene the
Establishment Clause. It found that the State had a valid
secular purpose in recognizing and commending the Eagles
for their efforts to reduce juvenile delinquency. The District
Court also determined that a reasonable observer, mindful
of the history, purpose, and context, would not conclude that
this passive monument conveyed the message that the State
was seeking to endorse religion. The Court of Appeals
affirmed the District Court’s holdings with respect to the
monument’s purpose and effect. 351 F. 3d 173 (CA5 2003).
We granted certiorari, 543 U. S. ___ (2004), and now affirm.
Our cases, Januslike, point in two directions in applying
the Establishment Clause. One face looks toward the
strong role played by religion and religious traditions
throughout our Nation’s history. As we observed in School
Dist. of Abington Township v. Schempp, 374 U. S. 203
(1963):
“It is true that religion has been closely identified
with our history and government. . . . The fact that
the Founding Fathers believed devotedly that there
was a God and that the unalienable rights of man
were rooted in Him is clearly evidenced in their writ-
ings, from the Mayflower Compact to the Constitution
itself. . . . It can be truly said, therefore, that today, as
in the beginning, our national life reflects a religious
people who, in the words of Madison, are ‘earnestly
praying, as . . . in duty bound, that the Supreme Law-
giver of the Universe . . . guide them into every meas-
ure which may be worthy of his [blessing . . . .]’ ” Id.,
at 212–213.2
The other face looks toward the principle that governmen-
——————
2 See also Engel v. Vitale, 370 U. S. 421, 434 (1962) (“The history of man
is inseparable from the history of religion”); Zorach v. Clauson, 343 U. S.
306, 313 (1952) (“We are a religious people whose institutions presup-
pose a Supreme Being”).
4 VAN ORDEN v. PERRY
Opinion of REHNQUIST, C. J.
tal intervention in religious matters can itself endanger
religious freedom.
This case, like all Establishment Clause challenges,
presents us with the difficulty of respecting both faces.
Our institutions presuppose a Supreme Being, yet these
institutions must not press religious observances upon
their citizens. One face looks to the past in acknowledg-
ment of our Nation’s heritage, while the other looks to the
present in demanding a separation between church and
state. Reconciling these two faces requires that we nei-
ther abdicate our responsibility to maintain a division
between church and state nor evince a hostility to religion
by disabling the government from in some ways recogniz-
ing our religious heritage:
“When the state encourages religious instruction or
cooperates with religious authorities by adjusting the
schedule of public events to sectarian needs, it follows
the best of our traditions. For it then respects the re-
ligious nature of our people and accommodates the
public service to their spiritual needs. To hold that it
may not would be to find in the Constitution a re-
quirement that the government show a callous indif-
ference to religious groups. . . . [W]e find no constitu-
tional requirement which makes it necessary for
government to be hostile to religion and to throw its
weight against efforts to widen the effective scope of
religious influence.” Zorach v. Clauson, 343 U. S. 306,
313–314 (1952).
See also Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U. S. 819, 845–846 (1995) (warning against the “risk [of]
fostering a pervasive bias or hostility to religion, which
could undermine the very neutrality the Establishment
Clause requires”).3
——————
3 Despite JUSTICE STEVENS’ recitation of occasional language to the
Cite as: 545 U. S. ____ (2005) 5
Opinion of REHNQUIST, C. J.
These two faces are evident in representative cases both
upholding4 and invalidating5 laws under the Establish-
——————
contrary, post, at 4–5, and n. 7 (dissenting opinion), we have not, and do
not, adhere to the principle that the Establishment Clause bars any
and all governmental preference for religion over irreligion. See, e.g.,
Cutter v. Wilkinson, 544 U. S. __ (2005); Corporation of Presiding Bishop
of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327
(1987); Lynch v. Donnelly, 465 U. S. 668 (1984); Marsh v. Chambers,
463 U. S. 783 (1983); Walz v. Tax Comm’n of City of New York, 397 U. S.
664 (1970). Even the dissenters do not claim that the First Amend-
ment’s Religion Clauses forbid all governmental acknowledgments,
preferences, or accommodations of religion. See post, at 6 (opinion of
STEVENS, J.) (recognizing that the Establishment Clause permits some
“recognition” or “acknowledgment” of religion); post, at 5, and n. 4
(opinion of SOUTER, J.) (discussing a number of permissible displays
with religious content).
4 Zelman v. Simmons-Harris, 536 U. S. 639 (2002) (upholding school
voucher program); Good News Club v. Milford Central School, 533 U. S.
98 (2001) (holding that allowing religious school groups to use school
facilities does not violate the Establishment Clause); Agostini v. Felton,
521 U. S. 203 (1997) (approving a program that provided public em-
ployees to teach remedial classes at religious and other private schools),
overruling Aguilar v. Felton, 473 U. S. 402 (1985) (barring public school
teachers from going to parochial schools to provide remedial education
to disadvantaged children), and School Dist. of Grand Rapids v. Ball, 473
U. S. 373 (1985) (striking down a program that provided classes to
religious school students at public expense in classrooms leased from
religious schools); Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U. S. 819 (1995) (holding that the Establishment Clause does not
bar disbursement of funds from student activity fees to religious or-
ganizations); Zobrest v. Catalina Foothills School Dist., 509 U. S. 1
(1993) (allowing a public school district to provide a sign-language
interpreter to a deaf student at a Catholic high school as part of a
federal program for the disabled); Lynch v. Donnelly, supra (upholding a
Christmas display including a crèche); Marsh v. Chambers, supra (up-
holding legislative prayer); Mueller v. Allen, 463 U. S. 388 (1983)
(upholding tax deduction for certain expenses incurred in sending one’s
child to a religious school).
5 Santa Fe Independent School Dist. v. Doe, 530 U. S. 290 (2000)
(holding unconstitutional student-initiated and student-led prayer at
school football games); Board of Ed. of Kiryas Joel Village School Dist.
v. Grumet, 512 U. S. 687 (1994) (invalidating a state law that created a
6 VAN ORDEN v. PERRY
Opinion of REHNQUIST, C. J.
ment Clause. Over the last 25 years, we have sometimes
pointed to Lemon v. Kurtzman, 403 U. S. 602 (1971), as
providing the governing test in Establishment Clause
challenges.6 Compare Wallace v. Jaffree, 472 U. S. 38
(1985) (applying Lemon), with Marsh v. Chambers, 463
U. S. 783 (1983) (not applying Lemon). Yet, just two years
after Lemon was decided, we noted that the factors identi-
fied in Lemon serve as “no more than helpful signposts.”
Hunt v. McNair, 413 U. S. 734, 741 (1973). Many of our
recent cases simply have not applied the Lemon test. See,
e.g., Zelman v. Simmons-Harris, 536 U. S. 639 (2002); Good
News Club v. Milford Central School, 533 U. S. 98 (2001).
Others have applied it only after concluding that the chal-
lenged practice was invalid under a different Establishment
Clause test.
Whatever may be the fate of the Lemon test in the
larger scheme of Establishment Clause jurisprudence, we
think it not useful in dealing with the sort of passive
monument that Texas has erected on its Capitol grounds.
——————
new school district for a single religious community); Lee v. Weisman,
505 U. S. 577 (1992) (prohibiting officially sponsored graduation
prayers); County of Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573 (1989) (holding the display of a crèche
in a courthouse unconstitutional but allowing the display of a menorah
outside a county building); Texas Monthly, Inc. v. Bullock, 489 U. S. 1
(1989) (plurality opinion) (invalidating a sales tax exemption for all
religious periodicals); Edwards v. Aguillard, 482 U. S. 578 (1987)
(invalidating a law mandating the teaching of creationism if evolution
was taught); Estate of Thornton v. Caldor, Inc., 472 U. S. 703 (1985)
(invalidating state law that gave employees an absolute right not to
work on their Sabbath); Wallace v. Jaffree, 472 U. S. 38 (1985) (invali-
dating law mandating a daily minute of silence for meditation or
voluntary prayer).
6 Lemon sets out a three-prong test: “First, the statute must have a
secular legislative purpose; second, its principal or primary effect must
be one that neither advances nor inhibits religion; finally, the statute
must not foster ‘an excessive government entanglement with religion.’ ”
403 U. S., at 612–613 (citation omitted).
Cite as: 545 U. S. ____ (2005) 7
Opinion of REHNQUIST, C. J.
Instead, our analysis is driven both by the nature of the
monument and by our Nation’s history.
As we explained in Lynch v. Donnelly, 465 U. S. 668
(1984): “There is an unbroken history of official acknowl-
edgment by all three branches of government of the role of
religion in American life from at least 1789.” Id., at 674.
For example, both Houses passed resolutions in 1789
asking President George Washington to issue a Thanks-
giving Day Proclamation to “recommend to the people of
the United States a day of public thanksgiving and prayer,
to be observed by acknowledging, with grateful hearts, the
many and signal favors of Almighty God.” 1 Annals of
Cong. 90, 914. President Washington’s proclamation
directly attributed to the Supreme Being the foundations
and successes of our young Nation:
“Now, therefore, I do recommend and assign Thurs-
day, the 26th day of November next, to be devoted by
the people of these States to the service of that great
and glorious Being who is the beneficent author of all
the good that was, that is, or that will be; that we may
then all unite in rendering unto Him our sincere and
humble thanks for His kind care and protection of the
people of this country previous to their becoming a na-
tion; for the signal and manifold mercies and the fa-
vorable interpositions of His providence in the course
and conclusion of the late war; for the great degree of
tranquillity, union, and plenty which we have since
enjoyed; for the peaceable and rational manner in
which we have been enabled to establish constitutions
of government for our safety and happiness, and par-
ticularly the national one now lately instituted; for the
civil and religious liberty with which we are blessed,
and the means we have of acquiring and diffusing use-
ful knowledge; and, in general, for all the great and
various favors which He has been pleased to confer
8 VAN ORDEN v. PERRY
Opinion of REHNQUIST, C. J.
upon us.” 1 J. Richardson, Messages and Papers of
the Presidents, 1789–1897, p. 64 (1899).
Recognition of the role of God in our Nation’s heritage
has also been reflected in our decisions. We have ac-
knowledged, for example, that “religion has been closely
identified with our history and government,” School Dist.
of Abington Township v. Schempp, 374 U. S., at 212, and
that “[t]he history of man is inseparable from the history
of religion,” Engel v. Vitale, 370 U. S. 421, 434 (1962).7
This recognition has led us to hold that the Establishment
Clause permits a state legislature to open its daily ses-
sions with a prayer by a chaplain paid by the State.
Marsh v. Chambers, 463 U. S., at 792.8 Such a practice, we
thought, was “deeply embedded in the history and tradi-
tion of this country.” Id., at 786. As we observed there, “it
would be incongruous to interpret [the Establishment
Clause] as imposing more stringent First Amendment
limits on the states than the draftsmen imposed on the
Federal Government.” Id., at 790–791. With similar
reasoning, we have upheld laws, which originated from
one of the Ten Commandments, that prohibited the sale of
merchandise on Sunday. McGowan v. Maryland, 366 U. S.
420, 431–440 (1961); see id., at 470–488 (separate opinion
——————
7 Seealso Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 26
(2004) (REHNQUIST, C. J., concurring in judgment) (“Examples of patriotic
invocations of God and official acknowledgments of religion’s role in our
Nation’s history abound”); id., at 35–36 (O’CONNOR, J., concurring in
judgment) (“It is unsurprising that a Nation founded by religious refugees
and dedicated to religious freedom should find references to divinity in its
symbols, songs, mottoes, and oaths”); Lynch v. Donnelly, 465 U. S., at 675
(“Our history is replete with official references to the value and invocation
of Divine guidance”).
8 Indeed, we rejected the claim that an Establishment Clause viola-
tion was presented because the prayers had once been offered in the
Judeo-Christian tradition: In Marsh, the prayers were often explicitly
Christian, but the chaplain removed all references to Christ the year
after the suit was filed. 463 U. S., at 793–794, and n. 14.
Cite as: 545 U. S. ____ (2005) 9
Opinion of REHNQUIST, C. J.
of Frankfurter, J.).
In this case we are faced with a display of the Ten
Commandments on government property outside the
Texas State Capitol. Such acknowledgments of the role
played by the Ten Commandments in our Nation’s heri-
tage are common throughout America. We need only look
within our own Courtroom. Since 1935, Moses has stood,
holding two tablets that reveal portions of the Ten Com-
mandments written in Hebrew, among other lawgivers in
the south frieze. Representations of the Ten Command-
ments adorn the metal gates lining the north and south
sides of the Courtroom as well as the doors leading into
the Courtroom. Moses also sits on the exterior east facade
of the building holding the Ten Commandments tablets.
Similar acknowledgments can be seen throughout a
visitor’s tour of our Nation’s Capital. For example, a large
statue of Moses holding the Ten Commandments, along-
side a statue of the Apostle Paul, has overlooked the ro-
tunda of the Library of Congress’ Jefferson Building since
1897. And the Jefferson Building’s Great Reading Room
contains a sculpture of a woman beside the Ten Com-
mandments with a quote above her from the Old Testa-
ment (Micah 6:8). A medallion with two tablets depicting
the Ten Commandments decorates the floor of the Na-
tional Archives. Inside the Department of Justice, a
statue entitled “The Spirit of Law” has two tablets repre-
senting the Ten Commandments lying at its feet. In front
of the Ronald Reagan Building is another sculpture that
includes a depiction of the Ten Commandments. So too a
24-foot-tall sculpture, depicting, among other things, the
Ten Commandments and a cross, stands outside the fed-
eral courthouse that houses both the Court of Appeals and
the District Court for the District of Columbia. Moses is
also prominently featured in the Chamber of the United
10 VAN ORDEN v. PERRY
Opinion of REHNQUIST, C. J.
States House of Representatives.9
Our opinions, like our building, have recognized the role
the Decalogue plays in America’s heritage. See, e.g.,
McGowan v. Maryland, 366 U. S., at 442; id., at 462 (sepa-
rate opinion of Frankfurter, J.).10 The Executive and
Legislative Branches have also acknowledged the histori-
cal role of the Ten Commandments. See, e.g., Public Pa-
pers of the Presidents, Harry S. Truman, 1950, p. 157
(1965); S. Con. Res. 13, 105th Cong., 1st Sess. (1997); H.
Con. Res. 31, 105th Cong., 1st Sess. (1997). These dis-
plays and recognitions of the Ten Commandments bespeak
the rich American tradition of religious acknowledgments.
Of course, the Ten Commandments are religious—they
were so viewed at their inception and so remain. The
monument, therefore, has religious significance. Accord-
ing to Judeo-Christian belief, the Ten Commandments
were given to Moses by God on Mt. Sinai. But Moses was
a lawgiver as well as a religious leader. And the Ten
——————
9 Other examples of monuments and buildings reflecting the promi-
nent role of religion abound. For example, the Washington, Jefferson,
and Lincoln Memorials all contain explicit invocations of God’s impor-
tance. The apex of the Washington Monument is inscribed “Laus Deo,”
which is translated to mean “Praise be to God,” and multiple memorial
stones in the monument contain Biblical citations. The Jefferson
Memorial is engraved with three quotes from Jefferson that make God
a central theme. Inscribed on the wall of the Lincoln Memorial are two
of Lincoln’s most famous speeches, the Gettysburg Address and his
Second Inaugural Address. Both inscriptions include those speeches’
extensive acknowledgments of God. The first federal monument, which
was accepted by the United States in honor of sailors who died in
Tripoli, noted the dates of the fallen sailors as “the year of our Lord,
1804, and in the 28 year of the independence of the United States.”
10 See also Edwards v. Aguillard, 482 U. S., at 593–594; Lynch v.
Donnelly, 465 U. S., at 677–678; id., at 691 (O’CONNOR, J., concurring);
County of Allegheny v. American Civil Liberties Union, Greater Pitts-
burgh Chapter, 492 U. S., at 652–653 (STEVENS, J., concurring in part
and dissenting in part); Stone v. Graham, 449 U. S. 39, 45 (1980)
(REHNQUIST, J., dissenting).
Cite as: 545 U. S. ____ (2005) 11
Opinion of REHNQUIST, C. J.
Commandments have an undeniable historical meaning,
as the foregoing examples demonstrate. Simply having
religious content or promoting a message consistent with a
religious doctrine does not run afoul of the Establishment
Clause. See Lynch v. Donnelly, 465 U. S., at 680, 687;
Marsh v. Chambers, 463 U. S., at 792; McGowan v. Mary-
land, supra, at 437–440; Walz v. Tax Comm’n of City of
New York, 397 U. S. 664, 676–678 (1970).
There are, of course, limits to the display of religious
messages or symbols. For example, we held unconstitu-
tional a Kentucky statute requiring the posting of the Ten
Commandments in every public schoolroom. Stone v.
Graham, 449 U. S. 39 (1980) (per curiam). In the classroom
context, we found that the Kentucky statute had an im-
proper and plainly religious purpose. Id., at 41. As evi-
denced by Stone’s almost exclusive reliance upon two of
our school prayer cases, id., at 41–42 (citing School Dist. of
Abington Township v. Schempp, 374 U. S. 203 (1963), and
Engel v. Vitale, 370 U. S. 421 (1962)), it stands as an exam-
ple of the fact that we have “been particularly vigilant in
monitoring compliance with the Establishment Clause in
elementary and secondary schools,” Edwards v. Aguillard,
482 U. S. 578, 583–584 (1987). Compare Lee v. Weisman,
505 U. S. 577, 596–597 (1992) (holding unconstitutional a
prayer at a secondary school graduation), with Marsh v.
Chambers, supra (upholding a prayer in the state legisla-
ture). Indeed, Edwards v. Aguillard recognized that
Stone—along with Schempp and Engel—was a conse-
quence of the “particular concerns that arise in the context
of public elementary and secondary schools.” 482 U. S., at
584–585. Neither Stone itself nor subsequent opinions
have indicated that Stone’s holding would extend to a
legislative chamber, see Marsh v. Chambers, supra, or to
capitol grounds.11
——————
11 Nor does anything suggest that Stone would extend to displays of
12 VAN ORDEN v. PERRY
Opinion of REHNQUIST, C. J.
The placement of the Ten Commandments monument
on the Texas State 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.
Indeed, Van Orden, the petitioner here, apparently walked
by the monument for a number of years before bringing
this lawsuit. The monument is therefore also quite differ-
ent from the prayers involved in Schempp and Lee v.
Weisman. Texas has treated her Capitol grounds monu-
ments as representing the several strands in the State’s
political and legal history. The inclusion of the Ten Com-
mandments monument in this group has a dual signifi-
cance, partaking of both religion and government. We
cannot say that Texas’ display of this monument violates
the Establishment Clause of the First Amendment.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
——————
the Ten Commandments that lack a “plainly religious,” “pre-eminent
purpose,” id., at 41. See Edwards v. Aguillard, supra, at 593–594
(“[Stone] did not mean that no use could ever be made of the Ten Com-
mandments, or that the Ten Commandments played an exclusively
religious role in the history of Western Civilization”). Indeed, we need not
decide in this case the extent to which a primarily religious purpose would
affect our analysis because it is clear from the record that there is no
evidence of such a purpose in this case.
Cite as: 545 U. S. ____ (2005) 1
SCALIA, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 03–1500
_________________
THOMAS VAN ORDEN, PETITIONER v. RICK PERRY,
IN HIS OFFICIAL CAPACITY AS GOVERNOR OF TEXAS
AND CHAIRMAN, STATE PRESERVATION
BOARD, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 27, 2005]
JUSTICE SCALIA, concurring.
I join the opinion of THE CHIEF JUSTICE because I think
it accurately reflects our current Establishment Clause
jurisprudence—or at least the Establishment Clause
jurisprudence we currently apply some of the time. I
would prefer to reach the same result by adopting an
Establishment Clause jurisprudence that is in accord with
our Nation’s past and present practices, and that can be
consistently applied—the central relevant feature of which
is that there is nothing unconstitutional in a State’s favor-
ing religion generally, honoring God through public prayer
and acknowledgment, or, in a nonproselytizing manner,
venerating the Ten Commandments. See McCreary
County v. American Civil Liberties Union of Ky., post, at
1–11 (SCALIA, J., dissenting).
Cite as: 545 U. S. ____ (2005) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 03–1500
_________________
THOMAS VAN ORDEN, PETITIONER v. RICK PERRY,
IN HIS OFFICIAL CAPACITY AS GOVERNOR OF TEXAS
AND CHAIRMAN, STATE PRESERVATION
BOARD, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 27, 2005]
JUSTICE THOMAS, concurring.
The Court holds that the Ten Commandments monu-
ment found on the Texas State Capitol grounds does not
violate the Establishment Clause. Rather than trying to
suggest meaninglessness where there is meaning, THE
CHIEF JUSTICE rightly recognizes that the monument has
“religious significance.” Ante, at 10. He properly recog-
nizes the role of religion in this Nation’s history and the
permissibility of government displays acknowledging that
history. Ante, at 6–8. For those reasons, I join THE CHIEF
JUSTICE’s opinion in full.
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. I have previously
——————
* See, e.g., County of Allegheny v. American Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U. S. 573, 592–594 (1989) (employing
endorsement test); Lemon v. Kurtzman, 403 U. S. 602, 612–613 (1971)
(setting forth three-pronged test); Marsh v. Chambers, 463 U. S. 783,
790–792 (1983) (upholding legislative prayer due to its “unique history”);
see also Lynch v. Donnelly, 465 U. S. 668, 679–681 (1984) (“[W]e have
repeatedly emphasized our unwillingness to be confined to any single
test or criterion in this sensitive area”).
2 VAN ORDEN v. PERRY
THOMAS, J., concurring
suggested that the Clause’s text and history “resis[t]
incorporation” against the States. See Elk Grove Unified
School Dist. v. Newdow, 542 U. S. 1, 46, (2004) (opinion
concurring in judgment); see also Zelman v. Simmons-
Harris, 536 U. S. 639, 677–680, and n. 3 (2002) (opinion
concurring). If the Establishment Clause does not re-
strain the States, then it has no application here, where
only state action is at issue.
Even if the Clause is incorporated, or if the Free Exer-
cise Clause limits the power of States to establish relig-
ions, see Cutter v. Wilkinson, 544 U. S. ___ , ___, n. 3 (2005)
(slip op., at 3, n. 3) (THOMAS, J., concurring), our task would
be far simpler if we returned to the original meaning of
the word “establishment” than it is under the various
approaches this Court now uses. The Framers understood
an establishment “necessarily [to] involve actual legal
coercion.” Newdow, supra, at 52 (THOMAS, J., concurring
in judgment); Lee v. Weisman, 505 U. S. 577, 640 (1992)
(SCALIA, J., dissenting) (“The coercion that was a hallmark
of historical establishments of religion was coercion of
religious orthodoxy and of financial support by force of law
and threat of penalty”). “In other words, establishment at
the founding involved, for example, mandatory observance
or mandatory payment of taxes supporting ministers.”
Cutter, supra, at ___ (slip op., at 4) (THOMAS, J., concur-
ring). And “government practices that have nothing to do
with creating or maintaining . . . coercive state establish-
ments” simply do not “implicate the possible liberty inter-
est of being free from coercive state establishments.”
Newdow, supra, at 53 (THOMAS, J., concurring in
judgment).
There is no question that, based on the original meaning
of the Establishment Clause, the Ten Commandments
display at issue here is constitutional. In no sense does
Texas compel petitioner Van Orden to do anything. The
only injury to him is that he takes offense at seeing the
Cite as: 545 U. S. ____ (2005) 3
THOMAS, J., concurring
monument as he passes it on his way to the Texas Su-
preme Court Library. He need not stop to read it or even
to look at it, let alone to express support for it or adopt the
Commandments as guides for his life. The mere presence
of the monument along his path involves no coercion and
thus does not violate the Establishment Clause.
Returning to the original meaning would do more than
simplify our task. It also would avoid the pitfalls present
in the Court’s current approach to such challenges. This
Court’s precedent elevates the trivial to the proverbial
“federal case,” by making benign signs and postings sub-
ject to challenge. Yet even as it does so, the Court’s prece-
dent attempts to avoid declaring all religious symbols and
words of longstanding tradition unconstitutional, by coun-
terfactually declaring them of little religious significance.
Even when the Court’s cases recognize that such symbols
have religious meaning, they adopt an unhappy compro-
mise that fails fully to account for either the adherent’s or
the nonadherent’s beliefs, and provides no principled way
to choose between them. Even worse, the incoherence of
the Court’s decisions in this area renders the Establish-
ment Clause impenetrable and incapable of consistent
application. All told, this Court’s jurisprudence leaves
courts, governments, and believers and nonbelievers alike
confused—an observation that is hardly new. See New-
dow, supra, at 45, n. 1 (THOMAS, J., concurring in judg-
ment) (collecting cases).
First, this Court’s precedent permits even the slightest
public recognition of religion to constitute an establish-
ment of religion. For example, individuals frequenting a
county courthouse have successfully challenged as an
Establishment Clause violation a sign at the courthouse
alerting the public that the building was closed for Good
Friday and containing a 4-inch high crucifix. Granzeier v.
Middleton, 955 F. Supp. 741, 743, and n. 2, 746–747 (ED
Ky. 1997), aff’d on other grounds, 173 F. 3d 568, 576 (CA6
4 VAN ORDEN v. PERRY
THOMAS, J., concurring
1999). Similarly, a park ranger has claimed that a cross
erected to honor World War I veterans on a rock in the
Mojave Desert Preserve violated the Establishment
Clause, and won. See Buono v. Norton, 212 F. Supp. 2d
1202, 1204–1205, 1215–1217 (CD Cal. 2002). If a cross in
the middle of a desert establishes a religion, then no reli-
gious observance is safe from challenge. Still other suits
have charged that city seals containing religious symbols
violate the Establishment Clause. See, e.g., Robinson v.
Edmond, 68 F. 3d 1226 (CA10 1995); Murray v. Austin,
947 F. 2d 147 (CA5 1991); Friedman v. Board of Cty.
Comm’rs of Bernalillo Cty., 781 F. 2d 777 (CA10 1985) (en
banc). In every instance, the litigants are mere
“[p]assersby . . . free to ignore [such symbols or signs], or
even to turn their backs, just as they are free to do when
they disagree with any other form of government speech.”
County of Allegheny v. American Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U. S. 573, 664 (1989)
(KENNEDY, J., concurring in part and dissenting in part).
Second, in a seeming attempt to balance out its willing-
ness to consider almost any acknowledgment of religion an
establishment, in other cases Members of this Court have
concluded that the term or symbol at issue has no reli-
gious meaning by virtue of its ubiquity or rote ceremonial
invocation. See, e.g., id., at 630–631 (O’CONNOR, J., concur-
ring); Lynch v. Donnelly, 465 U. S. 668, 716–717 (1984)
(Brennan, J., dissenting). But words such as “God” have
religious significance. For example, just last Term this
Court had before it a challenge to the recitation of the
Pledge of Allegiance, which includes the phrase “one Na-
tion under God.” The declaration that our country is “ ‘one
Nation under God’ ” necessarily “entail[s] an affirmation
that God exists.” Newdow, supra, at 48 (THOMAS, J.,
concurring in judgment). This phrase is thus anathema to
those who reject God’s existence and a validation of His
existence to those who accept it. Telling either nonbe-
Cite as: 545 U. S. ____ (2005) 5
THOMAS, J., concurring
lievers or believers that the words “under God” have no
meaning contradicts what they know to be true. More-
over, repetition does not deprive religious words or sym-
bols of their traditional meaning. Words like “God” are
not vulgarities for which the shock value diminishes with
each successive utterance.
Even when this Court’s precedents recognize the reli-
gious meaning of symbols or words, that recognition fails
to respect fully religious belief or disbelief. This Court
looks for the meaning to an observer of indeterminate
religious affiliation who knows all the facts and circum-
stances surrounding a challenged display. See, e.g., Capi-
tol Square Review and Advisory Bd. v. Pinette, 515 U. S.
753, 780 (1995) (O’CONNOR, J., concurring) (presuming
that a reasonable observer is “aware of the history and
context of the community and forum in which the religious
display appears”). In looking to the view of this unusually
informed observer, this Court inquires whether the sign or
display “sends the ancillary message to . . . nonadherents
‘that they are outsiders, not full members of the political
community, and an accompanying message to adherents
that they are insiders, favored members of the political
community.’ ” Santa Fe Independent School Dist. v. Doe,
530 U. S. 290, 309–310 (2000) (quoting Lynch, supra, at 688
(O’CONNOR, J., concurring)).
This analysis is not fully satisfying to either nonadher-
ents or adherents. For the nonadherent, who may well be
more sensitive than the hypothetical “reasonable ob-
server,” or who may not know all the facts, this test fails to
capture completely the honest and deeply felt offense he
takes from the government conduct. For the adherent,
this analysis takes no account of the message sent by
removal of the sign or display, which may well appear to
him to be an act hostile to his religious faith. The Court’s
foray into religious meaning either gives insufficient
weight to the views of nonadherents and adherents alike,
6 VAN ORDEN v. PERRY
THOMAS, J., concurring
or it provides no principled way to choose between those
views. In sum, this Court’s effort to assess religious mean-
ing is fraught with futility.
Finally, the very “flexibility” of this Court’s Establish-
ment Clause precedent leaves it incapable of consistent
application. See Edwards v. Aguillard, 482 U. S. 578, 640
(1987) (SCALIA, J., dissenting) (criticizing the Lemon test’s
“flexibility” as “the absence of any principled rationale”
(internal quotation marks omitted)). The inconsistency
between the decisions the Court reaches today in this case
and in McCreary County v. American Civil Liberties Union
of Ky., post, p. —, only compounds the confusion.
The unintelligibility of this Court’s precedent raises the
further concern that, either in appearance or in fact, adju-
dication of Establishment Clause challenges turns on
judicial predilections. See, e.g., Harris v. Zion, Lake Cty.,
Ill., 927 F. 2d 1401, 1425 (CA7 1991) (Easterbrook, J.,
dissenting) (“Line drawing in this area will be erratic and
heavily influenced by the personal views of the judges”);
post, at 3 (BREYER, J., concurring in judgment) (“I see no
test-related substitute for the exercise of legal judgment”).
The outcome of constitutional cases ought to rest on firmer
grounds than the personal preferences of judges.
Much, if not all, of this would be avoided if the Court
would return to the views of the Framers and adopt coer-
cion as the touchstone for our Establishment Clause in-
quiry. Every acknowledgment of religion would not give
rise to an Establishment Clause claim. Courts would not
act as theological commissions, judging the meaning of
religious matters. Most important, our precedent would
be capable of consistent and coherent application. While
the Court correctly rejects the challenge to the Ten Com-
mandments monument on the Texas Capitol grounds, a
more fundamental rethinking of our Establishment Clause
jurisprudence remains in order.
Cite as: 545 U. S. ____ (2005) 1
BREYER, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 03–1500
_________________
THOMAS VAN ORDEN, PETITIONER v. RICK PERRY,
IN HIS OFFICIAL CAPACITY AS GOVERNOR OF TEXAS
AND CHAIRMAN, STATE PRESERVATION
BOARD, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 27, 2005]
JUSTICE BREYER, concurring in the judgment.
In School Dist. of Abington Township v. Schempp, 374
U. S. 203 (1963), Justice Goldberg, joined by Justice
Harlan, wrote, in respect to the First Amendment’s Relig-
ion Clauses, that there is “no simple and clear measure
which by precise application can readily and invariably
demark the permissible from the impermissible.” Id., at
306 (concurring opinion). One must refer instead to the
basic purposes of those Clauses. They seek to “assure the
fullest possible scope of religious liberty and tolerance for
all.” Id., at 305. They seek to avoid that divisiveness
based upon religion that promotes social conflict, sapping
the strength of government and religion alike. Zelman v.
Simmons-Harris, 536 U. S. 639, 717–729 (2002) (BREYER,
J., dissenting). They seek to maintain that “separation of
church and state” that has long been critical to the “peace-
ful dominion that religion exercises in [this] country,”
where the “spirit of religion” and the “spirit of freedom”
are productively “united,” “reign[ing] together” but in
separate spheres “on the same soil.” A. de Tocqueville,
Democracy in America 282–283 (1835) (H. Mansfield & D.
Winthrop transls. and eds. 2000). They seek to further the
basic principles set forth today by JUSTICE O’CONNOR in
2 VAN ORDEN v. PERRY
BREYER, J., concurring in judgment
her concurring opinion in McCreary County v. American
Civil Liberties Union of Ky., post, at 1.
The Court has made clear, as Justices Goldberg and
Harlan noted, that the realization of these goals means
that government must “neither engage in nor compel
religious practices,” that it must “effect no favoritism
among sects or between religion and nonreligion,” and
that it must “work deterrence of no religious belief.”
Schempp, supra, at 305 (concurring opinion); see also Lee v.
Weisman, 505 U. S. 577, 587 (1992); Everson v. Board of Ed.
of Ewing, 330 U. S. 1, 15–16 (1947). The government must
avoid excessive interference with, or promotion of, relig-
ion. See generally County of Allegheny v. American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573,
593–594 (1989); Zelman, supra, at 723–725 (BREYER, J.,
dissenting). But the Establishment Clause does not com-
pel the government to purge from the public sphere all
that in any way partakes of the religious. See, e.g., Marsh
v. Chambers, 463 U. S. 783 (1983). Such absolutism is not
only inconsistent with our national traditions, see, e.g.,
Lemon v. Kurtzman, 403 U. S. 602, 614 (1971); Lynch v.
Donnelly, 465 U. S. 668, 672–678 (1984), but would also
tend to promote the kind of social conflict the Establish-
ment Clause seeks to avoid.
Thus, as Justices Goldberg and Harlan pointed out, the
Court has found no single mechanical formula that can
accurately draw the constitutional line in every case. See
Schempp, 374 U. S., at 306 (concurring opinion). Where
the Establishment Clause is at issue, tests designed to
measure “neutrality” alone are insufficient, both because
it is sometimes difficult to determine when a legal rule is
“neutral,” and because
“untutored devotion to the concept of neutrality can
lead to invocation or approval of results which partake
not simply of that noninterference and noninvolve-
Cite as: 545 U. S. ____ (2005) 3
BREYER, J., concurring in judgment
ment with the religious which the Constitution com-
mands, but of a brooding and pervasive devotion to
the secular and a passive, or even active, hostility to
the religious.” Ibid.
Neither can this Court’s other tests readily explain the
Establishment Clause’s tolerance, for example, of the
prayers that open legislative meetings, see Marsh, supra;
certain references to, and invocations of, the Deity in the
public words of public officials; the public references to
God on coins, decrees, and buildings; or the attention paid
to the religious objectives of certain holidays, including
Thanksgiving. See, e.g., Lemon, supra, at 612–613 (setting
forth what has come to be known as the “Lemon test”);
Lynch, supra, at 687 (O’CONNOR, J., concurring) (setting
forth the “endorsement test”); Capitol Square Review and
Advisory Bd. v. Pinette, 515 U. S. 753, 800, n. 5 (1995)
(STEVENS, J., dissenting) (agreeing that an “endorsement
test” should apply but criticizing its “reasonable observer”
standard); Santa Fe Independent School Dist. v. Doe, 530
U. S. 290, 319 (2000) (REHNQUIST, C. J., dissenting) (not-
ing Lemon’s “checkered career in the decisional law of this
Court”); County of Allegheny, supra, at 655–656 (KENNEDY,
J., joined by REHNQUIST, C. J., and White and SCALIA, JJ.,
concurring in judgment in part and dissenting in part)
(criticizing the Lemon test).
If the relation between government and religion is one of
separation, but not of mutual hostility and suspicion, one
will inevitably find difficult borderline cases. And in such
cases, I see no test-related substitute for the exercise of
legal judgment. See Schempp, supra, at 305 (Goldberg, J.,
concurring); cf. Zelman, supra, at 726–728 (BREYER, J.,
dissenting) (need for similar exercise of judgment where
quantitative considerations matter). That judgment is not
a personal judgment. Rather, as in all constitutional
cases, it must reflect and remain faithful to the underlying
4 VAN ORDEN v. PERRY
BREYER, J., concurring in judgment
purposes of the Clauses, and it must take account of con-
text and consequences measured in light of those pur-
poses. While the Court’s prior tests provide useful guide-
posts—and might well lead to the same result the Court
reaches today, see, e.g., Lemon, supra, at 612–613; Capitol
Square, supra, at 773–783 (O’CONNOR, J., concurring in part
and concurring in judgment)—no exact formula can dictate
a resolution to such fact-intensive cases.
The case before us is a borderline case. It concerns a
large granite monument bearing the text of the Ten Com-
mandments located on the grounds of the Texas State
Capitol. On the one hand, the Commandments’ text un-
deniably has a religious message, invoking, indeed em-
phasizing, the Diety. 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.
In certain contexts, a display of the tablets of the Ten
Commandments can convey not simply a religious mes-
sage but also a secular moral message (about proper stan-
dards of social conduct). And in certain contexts, a display
of the tablets can also convey a historical message (about a
historic relation between those standards and the law)—a
fact that helps to explain the display of those tablets in
dozens of courthouses throughout the Nation, including
the Supreme Court of the United States. See generally
App. to Brief for United States as Amicus Curiae 1a–7a.
Here the tablets have been used as part of a display that
communicates not simply a religious message, but a secu-
lar message as well. The circumstances surrounding the
display’s placement on the capitol grounds and its physical
setting suggest that the State itself intended the latter,
nonreligious aspects of the tablets’ message to predomi-
nate. And the monument’s 40-year history on the Texas
Cite as: 545 U. S. ____ (2005) 5
BREYER, J., concurring in judgment
state grounds indicates that that has been its effect.
The group that donated the monument, the Fraternal
Order of Eagles, a private civic (and primarily secular)
organization, while interested in the religious aspect of the
Ten Commandments, sought to highlight the Command-
ments’ role in shaping civic morality as part of that organi-
zation’s efforts to combat juvenile delinquency. See 1961
Tex. Gen. Laws 1995. The Eagles’ consultation with a
committee composed of members of several faiths in order to
find a nonsectarian text underscores the group’s ethics-
based motives. See Brief for Respondents 5–6, and n. 9.
The tablets, as displayed on the monument, prominently
acknowledge that the Eagles donated the display, a factor
which, though not sufficient, thereby further distances the
State itself from the religious aspect of the Commandments’
message.
The physical setting of the monument, moreover, sug-
gests little or nothing of the sacred. See Appendix A,
infra. The monument sits in a large park containing 17
monuments and 21 historical markers, all designed to illus-
trate the “ideals” of those who settled in Texas and of those
who have lived there since that time. Tex. H. Con. Res. 38,
77th Leg. (2001); see Appendix B, infra. The setting does
not readily lend itself to meditation or any other religious
activity. But it does provide a context of history and moral
ideals. It (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 speak-
ing, 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.
If these factors provide a strong, but not conclusive,
indication that the Commandments’ text on this monu-
ment conveys a predominantly secular message, a further
6 VAN ORDEN v. PERRY
BREYER, J., concurring in judgment
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 objec-
tion 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 under-
stood the monument as amounting, in any significantly
detrimental way, to a government effort to favor a particu-
lar religious sect, primarily to promote religion over nonre-
ligion, 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 visit-
ing 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.
This case, moreover, is distinguishable from instances
where the Court has found Ten Commandments displays
impermissible. The display is not on the grounds of a
public school, where, given the impressionability of the
young, government must exercise particular care in sepa-
rating church and state. See, e.g., Weisman, 505 U. S., at
592; Stone v. Graham, 449 U. S. 39 (1980) (per curiam).
This case also differs from McCreary County, where the
short (and stormy) history of the courthouse Command-
ments’ displays demonstrates the substantially religious
objectives of those who mounted them, and the effect of
this readily apparent objective upon those who view them.
See, post, at 21–25 (opinion of the Court). That history
there indicates a governmental effort substantially to
promote religion, not simply an effort primarily to reflect,
historically, the secular impact of a religiously inspired
document. And, in today’s world, in a Nation of so many
different religious and comparable nonreligious funda-
Cite as: 545 U. S. ____ (2005) 7
BREYER, J., concurring in judgment
mental beliefs, a more contemporary state effort to focus
attention upon a religious text is certainly likely to prove
divisive in a way that this longstanding, pre-existing
monument has not.
For these reasons, I believe that the Texas display—
serving a mixed but primarily nonreligious purpose, not
primarily “advanc[ing]” or “inhibit[ing] religion,” and not
creating an “excessive government entanglement with
religion,”—might satisfy this Court’s more formal Estab-
lishment Clause tests. Lemon, 403 U. S., at 612–613
(internal quotation marks omitted); see also Capitol
Square, 515 U. S., at 773–783 (O’CONNOR, J., concurring in
part and concurring in judgment). But, as I have said, in
reaching the conclusion that the Texas display falls on the
permissible side of the constitutional line, I rely less upon
a literal application of any particular test than upon con-
sideration of the basic purposes of the First Amendment’s
Religion Clauses themselves. This display has stood
apparently uncontested for nearly two generations. That
experience helps us understand that as a practical matter
of degree this display is unlikely to prove divisive. And
this matter of degree is, I believe, critical in a borderline
case such as this one.
At the same time, to reach a contrary conclusion here,
based primarily upon on the religious nature of the tab-
lets’ text would, I fear, lead the law to exhibit a hostility
toward religion that has no place in our Establishment
Clause traditions. Such a holding might well encourage
disputes concerning the removal of longstanding depic-
tions of the Ten Commandments from public buildings
across the Nation. And it could thereby create the very
kind of religiously based divisiveness that the Establish-
ment Clause seeks to avoid. Zelman, 536 U. S., at 717–
729 (BREYER, J., dissenting).
Justices Goldberg and Harlan concluded in Schempp
that
8 VAN ORDEN v. PERRY
BREYER, J., concurring in judgment
“[t]he First Amendment does not prohibit practices
which by any realistic measure create none of the
dangers which it is designed to prevent and which do
not so directly or substantially involve the state in re-
ligious exercise or in the favoring of religion as to have
meaningful and practical impact.” 374 U. S., at 308
(concurring opinion).
That kind of practice is what we have here. I recognize
the danger of the slippery slope. Still, where the Estab-
lishment Clause is at issue, we must “distinguish between
real threat and mere shadow.” Ibid. Here, we have only
the shadow.
In light of these considerations, I cannot agree with
today’s plurality’s analysis. See, e.g., ante, at 3–4, n. 3, 6–
9. Nor can I agree with JUSTICE SCALIA’s dissent in
McCreary County, post, at 1. I do agree with JUSTICE
O’CONNOR’s statement of principles in McCreary County,
post, at 1, though I disagree with her evaluation of the
evidence as it bears on the application of those principles
to this case.
I concur in the judgment of the Court.
APPENDIX A TO OPINION OF BREYER, J.
ß
Red Arrow = Ten Commandments Monument
APPENDIX B TO OPINION OF BREYER, J.
Cite as: 545 U. S. ____ (2005) 1
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 03–1500
_________________
THOMAS VAN ORDEN, PETITIONER v. RICK PERRY,
IN HIS OFFICIAL CAPACITY AS GOVERNOR OF TEXAS
AND CHAIRMAN, STATE PRESERVATION
BOARD, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 27, 2005]
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins,
dissenting.
The sole function of the monument on the grounds of
Texas’ State Capitol is to display the full text of one ver-
sion of the Ten Commandments. The monument is not a
work of art and does not refer to any event in the history
of the State. It is significant because, and only because, it
communicates the following message:
“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 manser-
vant, nor his maidservant, nor his cattle, nor anything
2 VAN ORDEN v. PERRY
STEVENS, J., dissenting
that is thy neighbor’s.” See Appendix, infra.1
Viewed on its face, Texas’ display has no purported
connection to God’s role in the formation of Texas or the
founding of our Nation; nor does it provide the reasonable
observer with any basis to guess that it was erected to
honor any individual or organization. The message
transmitted by Texas’ chosen display is quite plain: This
State endorses the divine code of the “Judeo-Christian”
God.
For those of us who learned to recite the King James
version of the text long before we understood the meaning
of some of its words, God’s Commandments may seem like
wise counsel. The question before this Court, however, is
whether it is counsel that the State of Texas may proclaim
without violating the Establishment Clause of the Consti-
tution. If any fragment of Jefferson’s metaphorical “wall
of separation between church and State”2 is to be pre-
served—if there remains any meaning to the “wholesome
‘neutrality’ of which this Court’s [Establishment Clause]
cases speak,” School Dist. of Abington Township v.
Schempp, 374 U. S. 203, 222 (1963)—a negative answer to
that question is mandatory.
I
In my judgment, at the very least, the Establishment
Clause has created a strong presumption against the
display of religious symbols on public property. See, e.g.,
County of Allegheny v. American Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U. S. 573, 650 (1989)
(STEVENS, J., concurring in part and dissenting in part);
Capitol Square Review and Advisory Bd. v. Pinette, 515
——————
1 At the bottom of the message, the observer learns that the display
was “[p]resented to the people and youth of Texas by the Fraternal
Order of Eagles of Texas” in 1961. See Appendix, infra.
2 Reynolds v. United States, 98 U. S. 145, 164 (1879); see also Everson
v. Board of Ed. of Ewing, 330 U. S. 1, 16 (1947).
Cite as: 545 U. S. ____ (2005) 3
STEVENS, J., dissenting
U. S. 753, 797 (1995) (STEVENS, J., dissenting). The
adornment of our public spaces with displays of religious
symbols and messages undoubtedly provides comfort, even
inspiration, to many individuals who subscribe to particu-
lar faiths. Unfortunately, the practice also runs the risk of
“offend[ing] nonmembers of the faith being advertised as
well as adherents who consider the particular advertise-
ment disrespectful.” Allegheny County, 492 U. S., at 651
(STEVENS, J., concurring in part and dissenting in part).3
Government’s obligation to avoid divisiveness and ex-
clusion in the religious sphere is compelled by the Estab-
lishment and Free Exercise Clauses, which together erect
a wall of separation between church and state.4 This
metaphorical wall protects principles long recognized and
often recited in this Court’s cases. The first and most
fundamental of these principles, one that a majority of this
Court today affirms, is that the Establishment Clause
demands religious neutrality—government may not exer-
cise a preference for one religious faith over another. See,
——————
3 As Senator Danforth recently reminded us, “efforts to haul refer-
ences of God into the public square, into schools and courthouses, are
far more apt to divide Americans than to advance faith.” Danforth,
Onward, Moderate Christian Soldiers, N. Y. Times, June 17, 2005,
p. A27.
4 The accuracy and utility of this metaphor have been called into
question. See, e.g., Wallace v. Jaffree, 472 U. S. 38, 106 (1985)
(REHNQUIST, J., dissenting); see generally P. Hamburger, Separation of
Church and State (2002). Whatever one may think of the merits of the
historical debate surrounding Jefferson and the “wall” metaphor, this
Court at a minimum has never questioned the concept of the “separa-
tion of church and state” in our First Amendment jurisprudence. THE
CHIEF JUSTICE’s opinion affirms that principle. Ante, at 4 (demanding a
“separation between church and state”). Indeed, even the Court that
famously opined that “[w]e are a religious people whose institutions
presuppose a Supreme Being,” Zorach v. Clauson, 343 U. S. 306, 313
(1952), acknowledged that “[t]here cannot be the slightest doubt that
the First Amendment reflects the philosophy that Church and State
should be separated,” id., at 312. The question we face is how to give
meaning to that concept of separation.
4 VAN ORDEN v. PERRY
STEVENS, J., dissenting
e.g., McCreary County v. American Civil Liberties Union,
Ky., post, at 27–29.5 This essential command, however, is
not merely a prohibition against the government’s differ-
entiation among religious sects. We have repeatedly
reaffirmed that neither a State nor the Federal Govern-
ment “can constitutionally pass laws or impose require-
ments which aid all religions as against non-believers, and
neither can aid those religions based on a belief in the
existence of God as against those religions founded on
different beliefs.” Torcaso v. Watkins, 367 U. S. 488, 495
(1961) (footnote omitted).6 This principle is based on the
straightforward notion that governmental promotion of
orthodoxy is not saved by the aggregation of several or-
thodoxies under the State’s banner. See Abington, 374
U. S., at 222.
——————
5 There is now widespread consensus on this principle. See Everson v.
Board of Ed. of Ewing, 330 U. S. 1, 15 (1947) (“Neither a state nor the
Federal Government . . . can pass laws which aid one religion, aid all
religions, or prefer one religion over another”); School District of Abing-
ton Township v. Schempp, 374 U. S. 203, 226 (1963) (“In the relation-
ship between man and religion, the State is firmly committed to a
position of neutrality”); Larson v. Valente, 456 U. S. 228, 244 (1982)
(“The clearest command of the Establishment Clause is that one
religious denomination cannot be officially preferred over another”); see
also Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S.
687, 748 (1994) (SCALIA, J., dissenting) (“I have always believed . . . that
the Establishment Clause prohibits the favoring of one religion over
others”); but see Church of Holy Trinity v. United States, 143 U. S. 457,
470–471 (1892).
6 In support of this proposition, the Torcaso Court quoted James Ire-
dell, who in the course of debating the adoption of the Federal Constitu-
tion in North Carolina, stated: “ ‘it is objected that the people of Amer-
ica may perhaps choose representatives who have no religion at all, and
that Pagans and Mahometans may be admitted into offices. But how is
it possible to exclude any set of men, without taking away that princi-
ple of religious freedom which we ourselves so warmly contend for?’ ”
367 U. S., at 495, n. 10 (quoting 4 J. Elliot, Debates in the Several State
Conventions on the Adoption of the Federal Constitution 197 (1836
ed.)).
Cite as: 545 U. S. ____ (2005) 5
STEVENS, J., dissenting
Acknowledgments of this broad understanding of the
neutrality principle are legion in our cases.7 Strong argu-
ments to the contrary have been raised from time to time,
perhaps the strongest in then-JUSTICE REHNQUIST’s schol-
arly dissent in Wallace v. Jaffree, 472 U. S. 38, 91–114
(1985).8 Powerful as his argument was, we squarely re-
jected it and thereby reaffirmed the principle that the
Establishment Clause requires the same respect for the
atheist as it does for the adherent of a Christian faith. As
we wrote, “the Court has unambiguously concluded that
the individual freedom of conscience protected by the First
Amendment embodies the right to select any religious
faith or none at all.” Id., at 52–53.
In restating this principle, I do not discount the impor-
tance of avoiding an overly strict interpretation of the
metaphor so often used to define the reach of the Estab-
lishment Clause. The plurality is correct to note that
“religion and religious traditions” have played a “strong
role . . . throughout our nation’s history.” Ante, at 3. This
Court has often recognized “an unbroken history of official
acknowledgment . . . of the role of religion in American
life.” Lynch v. Donnelly, 465 U. S. 668, 674 (1984); accord,
——————
7 See Everson, 330 U. S., at 18 (the Establishment Clause “requires
the state to be . . . neutral in its relations with groups of religious
believers and non-believers”); Abington, 374 U. S., at 216 (rejecting the
proposition that the Establishment Clause “forbids only governmental
preference of one religion over another”); Wallace, 472 U. S., at 52–55
(the interest in “forestalling intolerance extends beyond intolerance
among Christian sects—or even intolerance among ‘religions’—to
encompass intolerance of the disbeliever and the uncertain”); cf.
Zorach, 343 U. S., at 325 (Jackson, J., dissenting) (“The day that this
country ceases to be free for irreligion it will cease to be free for relig-
ion—except for the sect that can win political power”).
8 JUSTICE SCALIA’s dissent in the other Ten Commandments case we
decide today, see McCreary County v. American Civil Liberties Union of
Ky., post, at 1–11, raises similar objections. I address these objections
directly in Part III.
6 VAN ORDEN v. PERRY
STEVENS, J., dissenting
Edwards v. Aguillard, 482 U. S. 578, 606–608 (1987)
(Powell, J., concurring). Given this history, it is unsur-
prising that a religious symbol may at times become an
important feature of a familiar landscape or a reminder of
an important event in the history of a community. The
wall that separates the church from the State does not
prohibit the government from acknowledging the religious
beliefs and practices of the American people, nor does it
require governments to hide works of art or historic
memorabilia from public view just because they also have
religious significance.
This case, however, is not about historic preservation or
the mere recognition of religion. The issue is obfuscated
rather than clarified by simplistic commentary on the
various ways in which religion has played a role in Ameri-
can life, see ante, at 3–8 (plurality opinion), and by the
recitation of the many extant governmental “acknowledg-
ments” of the role the Ten Commandments played in our
Nation’s heritage.9 Ante, at 8–9, and n. 8. Surely, the
mere compilation of religious symbols, none of which
includes the full text of the Commandments and all of
——————
9 Though this Court has subscribed to the view that the Ten Com-
mandments influenced the development of Western legal thought, it
has not officially endorsed the far more specific claim that the Ten
Commandments played a significant role in the development of our
Nation’s foundational documents (and the subsidiary implication that it
has special relevance to Texas). Although it is perhaps an overstate-
ment to characterize this latter proposition as “idiotic,” see Tr. of Oral
Arg. 34, as one Member of the plurality has done, at the very least the
question is a matter of intense scholarly debate. Compare Brief for
Legal Historians and Law Scholars as Amicus Curiae in McCreary
County v. American Civil Liberties Union of Ky., O. T. 2004, No. 03–
1693, with Brief for American Center for Law and Justice as Amici
Curiae. Whatever the historical accuracy of the proposition, the Dis-
trict Court categorically rejected respondent’s suggestion that the
State’s actual purpose in displaying the Decalogue was to signify its
influence on secular law and Texas institutions. App. to Pet. for Cert.
A–32.
Cite as: 545 U. S. ____ (2005) 7
STEVENS, J., dissenting
which are exhibited in different settings, has only mar-
ginal relevance to the question presented in this case.
The monolith displayed on Texas Capitol grounds can-
not be discounted as a passive acknowledgment of religion,
nor can the State’s refusal to remove it upon objection be
explained as a simple desire to preserve a historic relic.
This Nation’s resolute commitment to neutrality with
respect to religion is flatly inconsistent with the plurality’s
wholehearted validation of an official state endorsement of
the message that there is one, and only one, God.
II
When the Ten Commandments monument was donated
to the State of Texas in 1961, it was not for the purpose of
commemorating a noteworthy event in Texas history,
signifying the Commandments’ influence on the develop-
ment of secular law, or even denoting the religious beliefs
of Texans at that time. To the contrary, the donation was
only one of over a hundred largely identical monoliths, and
of over a thousand paper replicas, distributed to state and
local governments throughout the Nation over the course
of several decades. This ambitious project was the work of
the Fraternal Order of Eagles, a well-respected benevolent
organization whose good works have earned the praise of
several Presidents.10
As the story goes, the program was initiated by the late
Judge E. J. Ruegemer, a Minnesota juvenile court judge
and then-Chairman of the Eagles National Commission on
Youth Guidance. Inspired by a juvenile offender who had
——————
10 See Brief for Fraternal Order of Eagles as Amicus Curiae 2–3. The
Order was formed in 1898 by six Seattle theater owners, promptly
joined by actors, playwrights, and stagehands, and rapidly expanded to
include a nationwide membership numbering over a million. Id., at 2;
see also Fraternal Order of Eagles v. Grand Aerie of Fraternal Order of
Eagles, 148 Wash. 2d 224, 229, 59 P. 3d 655, 657 (2002) (en banc);
Lahmann v. Grand Aerie of Fraternal Order of Eagles, 180 Ore. App.
420, 422, 43 P. 3d 1130, 1131 (2002).
8 VAN ORDEN v. PERRY
STEVENS, J., dissenting
never heard of the Ten Commandments, the judge ap-
proached the Minnesota Eagles with the idea of distribut-
ing paper copies of the Commandments to be posted in
courthouses nationwide. The State’s Aerie undertook this
project and its popularity spread. When Cecil B. DeMille,
who at that time was filming the movie The Ten Com-
mandments, heard of the judge’s endeavor, he teamed up
with the Eagles to produce the type of granite monolith
now displayed in front of the Texas Capitol and at court-
house squares, city halls, and public parks throughout the
Nation. Granite was reportedly chosen over DeMille’s
original suggestion of bronze plaques to better replicate
the original Ten Commandments.11
The donors were motivated by a desire to “inspire the
youth” and curb juvenile delinquency by providing chil-
dren with a “code of conduct or standards by which to
govern their actions.”12 It is the Eagles’ belief that dis-
seminating the message conveyed by the Ten Command-
ments will help to persuade young men and women to
observe civilized standards of behavior, and will lead to
more productive lives. Significantly, although the Eagles’
organization is nonsectarian, eligibility for membership is
premised on a belief in the existence of a “Supreme Be-
ing.”13 As described by the Eagles themselves:
——————
11 See Books v. Elkhart, 235 F. 3d 292, 294–295 (CA7 2000); State v.
Freedom from Religion Foundation, Inc., 898 P. 2d 1013, 1017 (Colo.
1995) (en banc); see also U. S. Supreme Court will hear Ten Com-
mandments Case in Early 2005, http://www.foe.com/tencommandments/
index.html (all Internet materials as visited June 24, 2005, and avail-
able in Clerk of Court’s case file).
12 Freedom from Religion Foundation, 898 P. 2d, at 1017; accord, 1961
Tex. Gen. Laws 1995 (“These plaques and monoliths have been pre-
sented by the Eagles to promote youth morality and to help stop the
alarming increase in delinquency”); Brief for Fraternal Order of Eagles
as Amicus Curiae 4.
13 According to its articles of incorporation, the Eagles’ purpose is to:
“ ‘Unite fraternally for mutual benefit, protection, improvement, social
Cite as: 545 U. S. ____ (2005) 9
STEVENS, J., dissenting
“ ‘in searching for a youth guidance program, [we] rec-
ognized that there can be no better, no more defined
program of Youth Guidance, and adult guidance as
well, than the laws handed down by God Himself to
Moses more than 3000 years ago, which laws have
stood unchanged through the years. They are a fun-
damental part of our lives, the basis of all our laws for
living, the foundation of our relationship with our
Creator, with our families and with our fellow men.
All the concepts we live by—freedom, democracy, jus-
tice, honor—are rooted in the Ten Commandments.
. . . . .
“ ‘The erection of these monoliths is to inspire all who
pause to view them, with a renewed respect for the
law of God, which is our greatest strength against the
forces that threaten our way of life.’ ” Anderson v.
Salt Lake City Corp., 348 F. Supp. 1170, 1172 (Utah
1972), rev’d, 475 F. 2d 29 (CA10 1973).
The desire to combat juvenile delinquency by providing
guidance to youths is both admirable and unquestionably
secular. But achieving that goal through biblical teach-
ings injects a religious purpose into an otherwise secular
endeavor. By spreading the word of God and converting
heathens to Christianity, missionaries expect to enlighten
their converts, enhance their satisfaction with life, and
improve their behavior. Similarly, by disseminating the
“law of God”—directing fidelity to God and proscribing
murder, theft, and adultery—the Eagles hope that this
divine guidance will help wayward youths conform their
——————
enjoyment and association, all persons of good moral character who
believe in a Supreme Being to inculcate the principles of liberty, truth,
justice and equality . . .’ ” Fraternal Order of Eagles, 148 Wash. 2d, at
229, 59 P. 3d, at 657. See also Aerie Membership Application–Fraternal
Order of Eagles http://www.foe.com/membership/applications/aerie.html
(“I, being of sound body and mind, and believing in the existence of a
Supreme Being . . .”).
10 VAN ORDEN v. PERRY
STEVENS, J., dissenting
behavior and improve their lives. In my judgment, the
significant secular by-products that are intended conse-
quences of religious instruction—indeed, of the establish-
ment of most religions—are not the type of “secular” pur-
poses that justify government promulgation of sacred
religious messages.
Though the State of Texas may genuinely wish to com-
bat juvenile delinquency, and may rightly want to honor
the Eagles for their efforts, it cannot effectuate these
admirable purposes through an explicitly religious me-
dium. See Bowen v. Kendrick, 487 U. S. 589, 639–640
(1988) (Blackmun, J., dissenting) (“It should be undeniable
by now that religious dogma may not be employed by
government even to accomplish laudable secular pur-
poses”). The State may admonish its citizens not to lie,
cheat or steal, to honor their parents and to respect their
neighbors’ property; and it may do so by printed words, in
television commercials, or on granite monuments in front
of its public buildings. Moreover, the State may provide
its schoolchildren and adult citizens with educational
materials that explain the important role that our fore-
bears’ faith in God played in their decisions to select
America as a refuge from religious persecution, to declare
their independence from the British Crown, and to con-
ceive a new Nation. See Edwards, 482 U. S., at 606–608
(Powell, J., concurring). The message at issue in this case,
however, is fundamentally different from either a bland
admonition to observe generally accepted rules of behavior
or a general history lesson.
The reason this message stands apart is that the Deca-
logue is a venerable religious text.14 As we held 25 years
——————
14 In County of Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573 (1989), I noted that certain displays
of religious images may convey “an equivocal message, perhaps of
respect for Judaism, for religion in general, or for law.” Id., at 652
(opinion concurring in part and dissenting in part). It is rather mis-
Cite as: 545 U. S. ____ (2005) 11
STEVENS, J., dissenting
ago, it is beyond dispute that “[t]he Ten Commandments
are undeniably a sacred text in the Jewish and Christian
faiths.” Stone v. Graham, 449 U. S. 39, 41 (1980) (per
curiam) (footnote omitted). For many followers, the Com-
mandments represent the literal word of God as spoken to
Moses and repeated to his followers after descending from
Mount Sinai. The message conveyed by the Ten Com-
mandments thus cannot be analogized to an appendage to
a common article of commerce (“In God we Trust”) or an
incidental part of a familiar recital (“God save the United
States and this honorable Court”). Thankfully, the plural-
ity does not attempt to minimize the religious significance
of the Ten Commandments. Ante, at 10 (“Of course, the
Ten Commandments are religious—they were so viewed at
their inception and so remain”); ante, at 1 (THOMAS, J.,
concurring); see also McCreary County v. American Civil
Liberties Union of Ky., post, at 19 (SCALIA, J., dissenting).
Attempts to secularize what is unquestionably a sacred
text defy credibility and disserve people of faith.
The profoundly sacred message embodied by the text
inscribed on the Texas monument is emphasized by the
especially large letters that identify its author: “I AM
the LORD thy God.” See Appendix, infra. It com-
mands present worship of Him and no other deity. It
directs us to be guided by His teaching in the current and
future conduct of all of our affairs. It instructs us to follow
a code of divine law, some of which has informed and been
integrated into our secular legal code (“Thou shalt not
kill”), but much of which has not (“Thou shalt not make to
thyself any graven images. . . . Thou shalt not covet”).
Moreover, despite the Eagles’ best efforts to choose a
——————
leading, however, to quote my comment in that case to imply that I was
referring to the text of the Ten Commandments simpliciter. See
McCreary County, post, at 13–14.
12 VAN ORDEN v. PERRY
STEVENS, J., dissenting
benign nondenominational text,15 the Ten Commandments
display projects not just a religious, but an inherently
sectarian message. There are many distinctive versions of
the Decalogue, ascribed to by different religions and even
different denominations within a particular faith; to a
pious and learned observer, these differences may be of
enormous religious significance.16 See Lubet, The Ten
Commandments in Alabama, 15 Constitutional Commen-
tary 471, 474–476 (Fall 1998). In choosing to display this
——————
15 See ante, at 5 (BREYER, J., concurring in judgment). Despite the
Eagles’ efforts, not all of the monuments they donated in fact conform
to a “universally-accepted” text. Compare, e.g., Appendix, infra (includ-
ing the command that “Thou shalt not make to thyself any graven
images”), and Adland v. Russ, 307 F. 3d 471, 475 (CA6 2002) (same),
with Freedom from Religion Foundation, 898 P. 2d, at 1016 (omitting
that command altogether). The distinction represents a critical divide
between the Protestant and Catholic faiths. During the Reformation,
Protestants destroyed images of the Virgin Mary and of Jesus Christ
that were venerated in Catholic churches. Even today there is a notable
difference between the imagery in different churches, a difference that
may in part be attributable to differing understandings of the meaning
of what is the Second Commandment in the King James Bible transla-
tion and a portion of the First Commandment in the Catholic transla-
tion. See Finkelman, The Ten Commandments on the Courthouse
Lawn and Elsewhere, 73 Ford. L. Rev. 1477, 1493–1494 (2005).
16 For example, in the Jewish version of the Sixth Commandment God
commands: “You shall not murder”; whereas, the King James interpre-
tation of the same command is: “Thou shalt not kill.” Compare W.
Plaut, The Torah: A Modern Commentary 534 (1981), with Appendix,
infra. The difference between the two versions is not merely semantic;
rather, it is but one example of a deep theological dispute. See Finkel-
man, supra, at 1481–1500; P. Maier, Enumerating the Decalogue; Do
We Number the Ten Commandments Correctly? 16 Concordia J. 18,
18–26 (1990). Varying interpretations of this Commandment explain
the actions of vegetarians who refuse to eat meat, pacifists who refuse
to work for munitions makers, prison officials who refuse to administer
lethal injections to death row inmates, and pharmacists who refuse to
sell morning-after pills to women. See Finkelman, supra, at 1494–
1496; Brief for American Jewish Congress et al. as Amici Curiae 22–23.
Although the command is ambiguous, its power to motivate likeminded
interpreters of its message cannot be denied.
Cite as: 545 U. S. ____ (2005) 13
STEVENS, J., dissenting
version of the Commandments, Texas tells the observer
that the State supports this side of the doctrinal religious
debate. The reasonable observer, after all, has no way of
knowing that this text was the product of a compromise,
or that there is a rationale of any kind for the text’s
selection.17
The Establishment Clause, if nothing else, forbids gov-
ernment from “specifying details upon which men and
women who believe in a benevolent, omnipotent Creator
and Ruler of the world are known to differ.” Lee v. Weis-
man, 505 U. S. 577, 641 (1992) (SCALIA, J., dissenting).
Given that the chosen text inscribed on the Ten Com-
mandments monument invariably places the State at the
center of a serious sectarian dispute, the display is un-
questionably unconstitutional under our case law. See
Larson v. Valente, 456 U. S. 228, 244 (1982) (“The clearest
command of the Establishment Clause is that one reli-
gious denomination cannot be officially preferred over
another”).
Even if, however, the message of the monument, despite
the inscribed text, fairly could be said to represent the
belief system of all Judeo-Christians, it would still run
afoul of the Establishment Clause by prescribing a com-
pelled code of conduct from one God, namely a Judeo-
Christian God, that is rejected by prominent polytheistic
sects, such as Hinduism, as well as nontheistic religions,
such as Buddhism.18 See, e.g., Allegheny County, 492
——————
17 JUSTICE SCALIA’s willingness to dismiss the distinct textual versions
adhered to by different faiths in the name of generic “monotheism”
based on mere speculation regarding their significance, McCreary
County, post, at 19, is not only somewhat ironic, see A. Scalia, A Matter
of Interpretation 23–25 (1997), but also serves to reinforce the concern
that interjecting government into the religious sphere will offend
“adherents who consider the particular advertisement disrespectful.”
Allegheny County, 492 U. S., at 651 (STEVENS, J., concurring in part and
dissenting in part).
18 See Brief for Hindu American Foundation et al. as Amici Curiae.
14 VAN ORDEN v. PERRY
STEVENS, J., dissenting
U. S., at 615 (opinion of Blackmun, J.) (“The simultaneous
endorsement of Judaism and Christianity is no less consti-
tutionally infirm than the endorsement of Christianity
alone”). And, at the very least, the text of the Ten Com-
mandments impermissibly commands a preference for
religion over irreligion. See, e.g., id., at 590 (The Estab-
lishment Clause “guarantee[s] religious liberty and equal-
ity to the ‘infidel, the atheist, or the adherent of a non-
Christian faith such as Islam or Judaism’ ” (quoting Wal-
lace, 472 U. S., at 52)). Any of those bases, in my judg-
ment, would be sufficient to conclude that the message
should not be proclaimed by the State of Texas on a per-
manent monument at the seat of its government.
I do not doubt that some Texans, including those elected
to the Texas Legislature, may believe that the statues
displayed on the Texas Capitol grounds, including the Ten
Commandments monument, reflect the “ideals . . . that
compose Texan identity.” Tex. H. Con. Res. 38, 77th Leg.
6473 (2001). But Texas, like our entire country, is now a
much more diversified community than it was when it
became a part of the United States or even when the
monument was erected. Today there are many Texans
——————
Though JUSTICE SCALIA disagrees that these sentiments are consistent
with the Establishment Clause, he does not deny that our cases whole-
heartedly adopt this expression of neutrality. Instead, he suggests that
this Court simply discard what he terms the “say-so of earlier Courts,”
based in part on his own “say-so” that nonmonotheists make up a
statistically insignificant portion of this Nation’s religious community.
McCreary County, post, at 6. Besides marginalizing the belief systems
of more than 7 million Americans by deeming them unworthy of the
special protections he offers monotheists under the Establishment
Clause, JUSTICE SCALIA’s measure of analysis may be cause for concern
even for the self-proclaimed “popular” religions of Islam and Judaism.
The number of Buddhists alone is nearly equal to the number of Mus-
lims in this country, and while those of the Islamic and Jewish faiths
only account for 2.2% of all believers, Christianity accounts for 95.5%.
See U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of
the United States: 2004–2005, p. 55 (124th ed. 2004) (Table No. 67).
Cite as: 545 U. S. ____ (2005) 15
STEVENS, J., dissenting
who do not believe in the God whose Commandments are
displayed at their seat of government. Many of them
worship a different god or no god at all. Some may believe
that the account of the creation in the Book of Genesis is
less reliable than the views of men like Darwin and Ein-
stein. The monument is no more an expression of the
views of every true Texan than was the “Live Free or Die”
motto that the State of New Hampshire placed on its
license plates in 1969 an accurate expression of the views
of every citizen of New Hampshire. See Wooley v. May-
nard, 430 U. S. 705 (1977).
Recognizing the diversity of religious and secular beliefs
held by Texans and by all Americans, it seems beyond
peradventure that allowing the seat of government to serve
as a stage for the propagation of an unmistakably Judeo-
Christian message of piety would have the tendency to
make nonmonotheists and nonbelievers “feel like [outsid-
ers] in matters of faith, and [strangers] in the political
community.” Pinette, 515 U. S., at 799 (STEVENS, J., dis-
senting). “[D]isplays of this kind inevitably have a greater
tendency to emphasize sincere and deeply felt differences
among individuals than to achieve an ecumenical goal.”
Allegheny County, 492 U. S., at 651 (STEVENS, J., concur-
ring in part and dissenting in part).19
Even more than the display of a religious symbol on
government property, see Pinette, 515 U. S., at 797
(STEVENS, J., dissenting); Allegheny County, 492 U. S., at
——————
19 The fact that this particular display has stood unchallenged for
over forty years does not suggest otherwise. One need look no further
than the deluge of cases flooding lower courts to realize the discord
these displays have engendered. See, e.g., Mercier v. Fraternal Order of
Eagles, 395 F. 3d 693 (CA7 2005); ACLU Nebraska Foundation v.
Plattsmouth, 358 F. 3d 1020 (CA8 2004); Adland v. Russ, 307 F. 3d 471
(CA6 2002); Summum v. Ogden, 297 F. 3d 995 (CA10 2002); Books v.
Elkhart, 235 F. 3d 292 (CA7 2000); State v. Freedom From Religion
Foundation, Inc., 898 P. 2d 1013 (Colo. 1995); Anderson v. Salt Lake
City Corp., 475 F. 2d 29 (CA10 1973).
16 VAN ORDEN v. PERRY
STEVENS, J., dissenting
650–651 (STEVENS, J., concurring in part and dissenting
in part), displaying this sectarian text at the state capitol
should invoke a powerful presumption of invalidity. As
JUSTICE SOUTER’s opinion persuasively demonstrates, the
physical setting in which the Texas monument is dis-
played—far from rebutting that presumption—actually
enhances the religious content of its message. See post, at
6–8. The monument’s permanent fixture at the seat of
Texas government is of immense significance. The fact
that a monument:
“is installed on public property implies official recog-
nition and reinforcement of its message. That impli-
cation is especially strong when the sign stands in
front of the seat of government itself. The ‘reasonable
observer’ of any symbol placed unattended in front of
any capitol in the world will normally assume that
the sovereign—which is not only the owner of that
parcel of real estate but also the lawgiver for the sur-
rounding territory—has sponsored and facilitated its
message.” Pinette, 515 U. S., at 801–802 (STEVENS,
J., dissenting).
Critical examination of the Decalogue’s prominent
display at the seat of Texas government, rather than
generic citation to the role of religion in American life,
unmistakably reveals on which side of the “slippery slope,”
ante, at 8 (BREYER, J., concurring in judgment), this dis-
play must fall. God, as the author of its message, the
Eagles, as the donor of the monument, and the State of
Texas, as its proud owner, speak with one voice for a
common purpose—to encourage Texans to abide by the
divine code of a “Judeo-Christian” God. If this message is
permissible, then the shining principle of neutrality to
which we have long adhered is nothing more than mere
shadow.
Cite as: 545 U. S. ____ (2005) 17
STEVENS, J., dissenting
III
The plurality relies heavily on the fact that our Republic
was founded, and has been governed since its nascence, by
leaders who spoke then (and speak still) in plainly reli-
gious rhetoric. THE CHIEF JUSTICE cites, for instance,
George Washington’s 1789 Thanksgiving Proclamation in
support of the proposition that the Establishment Clause
does not proscribe official recognition of God’s role in our
Nation’s heritage, ante, at 7–8.20 Further, the plurality
emphatically endorses the seemingly timeless recognition
that our “institutions presuppose a Supreme Being,” ante,
at 4. Many of the submissions made to this Court by the
parties and amici, in accord with the plurality’s opinion,
have relied on the ubiquity of references to God through-
out our history.
The speeches and rhetoric characteristic of the founding
era, however, do not answer the question before us. I have
already explained why Texas’ display of the full text of the
Ten Commandments, given the content of the actual
display and the context in which it is situated, sets this
case apart from the countless examples of benign govern-
ment recognitions of religion. But there is another crucial
difference. Our leaders, when delivering public addresses,
often express their blessings simultaneously in the service
of God and their constituents. Thus, when public officials
deliver public speeches, we recognize that their words are
not exclusively a transmission from the government be-
cause those oratories have embedded within them the
——————
20 This is, of course, a rhetorical approach not unique to the plurality’s
opinion today. Appeals to such religious speeches have frequently been
used in support of governmental transmission of religious messages.
See, e.g., Wallace, 472 U. S., at 98–104 (REHNQUIST, J., dissenting); Lee
v. Weisman, 505 U. S. 577, 633–636 (1992) (SCALIA, J., dissenting);
Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 318 (2000)
(REHNQUIST, C. J., dissenting); cf. Lynch v. Donnelly, 465 U. S. 668,
675–676 (1984).
18 VAN ORDEN v. PERRY
STEVENS, J., dissenting
inherently personal views of the speaker as an individual
member of the polity.21 The permanent placement of a
textual religious display on state property is different in
kind; it amalgamates otherwise discordant individual
views into a collective statement of government approval.
Moreover, the message never ceases to transmit itself to
objecting viewers whose only choices are to accept the
message or to ignore the offense by averting their gaze.
Cf. Allegheny County, 492 U. S., at 664 (KENNEDY, J.,
concurring in judgment in part and dissenting in part);
ante, at 4 (THOMAS, J., concurring). In this sense, al-
though Thanksgiving Day proclamations and inaugural
speeches undoubtedly seem official, in most circumstances
they will not constitute the sort of governmental endorse-
ment of religion at which the separation of church and
state is aimed.22
The plurality’s reliance on early religious statements
and proclamations made by the Founders is also problem-
atic because those views were not espoused at the Consti-
tutional Convention in 178723 nor enshrined in the Consti-
——————
21 Itgoes without saying that the analysis differs when a listener is
coerced into listening to a prayer. See, e.g., Santa Fe Independent
School Dist., 530 U. S., at 308–312.
22 With respect to the “legislative prayers” cited approvingly by THE
CHIEF JUSTICE, ante, at 8, I reiterate my view that “the designation of a
member of one religious faith to serve as the sole official chaplain of a
state legislature for a period of 16 years constitutes the preference of
one faith over another in violation of the Establishment Clause.”
Marsh v. Chambers, 463 U. S. 783, 823 (1983) (STEVENS, J., dissenting).
Thus, JUSTICE SCALIA and I are in agreement with respect to at least
one point—this Court’s decision in Marsh “ignor[ed] the neutrality
principle” at the heart of the Establishment Clause. McCreary County,
post, at 8 (SCALIA, J., dissenting).
23 See, e.g., J. Hutson, Religion and the Founding of the American
Republic 75 (1998) (noting the dearth of references to God at the
Philadelphia Convention and that many contemporaneous observers of
the Convention complained that “the Framers had unaccountably
turned their backs on the Almighty” because they “ ‘found the Constitu-
Cite as: 545 U. S. ____ (2005) 19
STEVENS, J., dissenting
tution’s text. Thus, the presentation of these religious
statements as a unified historical narrative is bound to
paint a misleading picture. It does so here. In according
deference to the statements of George Washington and
John Adams, THE CHIEF JUSTICE and JUSTICE SCALIA, see
ante, at 7 (plurality opinion); McCreary County, post, at 3–
4 (dissenting opinion), fail to account for the acts and
publicly espoused views of other influential leaders of that
time. Notably absent from their historical snapshot is the
fact that Thomas Jefferson refused to issue the Thanksgiv-
ing proclamations that Washington had so readily em-
braced based on the argument that to do so would violate
the Establishment Clause.24 THE CHIEF JUSTICE and
JUSTICE SCALIA disregard the substantial debates that
took place regarding the constitutionality of the early
proclamations and acts they cite, see, e.g., Letter from
James Madison to Edward Livingston (July 10, 1822), in 5
The Founders’ Constitution 105–106 (P. Kurland & R.
Lerner eds. 1987) (hereinafter Founders’ Constitution)
(arguing that Congress’ appointment of Chaplains to be
paid from the National Treasury was “not with my appro-
bation” and was a “deviation” from the principle of “im-
munity of Religion from civil jurisdiction”),25 and paper
——————
tion without any acknowledgement of God’ ”).
24 See Letter from Thomas Jefferson to Rev. S. Miller (Jan. 23, 1808),
in 5 Founders’ Constitution 98; 11 Jefferson’s Writings 428–430 (1905);
see also Lee, 505 U. S., at 623–625 (SOUTER, J., concurring) (document-
ing history); Lynch, 465 U. S., at 716, n. 23 (Brennan, J., dissenting)
(same).
25 See also James Madison, Detached Memoranda, in 5 Founders’
Constitution 103–104. Madison’s letter to Livingston further argued
that: “There has been another deviation from the strict principle in the
Executive Proclamations of fasts & festivals, so far, at least, as they
have spoken the language of injunction, or have lost sight of the equal-
ity of all religious sects in the eve of the Constitution. . . . Notwith-
standing the general progress made within the last two centuries in
favour of this branch of liberty, & the full establishment of it, in some
20 VAN ORDEN v. PERRY
STEVENS, J., dissenting
over the fact that Madison more than once repudiated the
views attributed to him by many, stating unequivocally
that with respect to government’s involvement with relig-
ion, the “ ‘tendency to a usurpation on one side, or the
other, or to a corrupting coalition or alliance between
them, will be best guarded against by an entire abstinence
of the Government from interference, in any way what-
ever, beyond the necessity of preserving public order, &
protecting each sect against trespasses on its legal rights
by others.’ ”26
These seemingly nonconforming sentiments should
come as no surprise. Not insignificant numbers of colo-
nists came to this country with memories of religious
persecution by monarchs on the other side of the Atlantic.
See A. Stokes & L. Pfeffer, Church and State in the United
States 3–23 (rev. ed. 1964). Others experienced religious
intolerance at the hands of colonial Puritans, who regret-
tably failed to practice the tolerance that some of their
contemporaries preached. Engel v. Vitale, 370 U. S. 421,
——————
parts of our Country, there remains in others a strong bias towards old
error, that without some sort of alliance or coalition between [Govern-
ment] & Religion neither can be duly supported. Such indeed is the
tendency to such a coalition, and such its corrupting influence on both
the parties, that the danger cannot be too carefully guarded
[against]. . . . Every new & successful example therefore of a perfect
separation between ecclesiastical and civil matters, is of importance.
And I have no doubt that every new example, will succeed, as every
past one has done, in shewing that religion & [Government] will both
exist in greater purity, the less they are mixed together.” Id., at 105–
106.
26 Religion and Politics in the Early Republic 20–21 (D. Dreisbach ed.
1996) (hereinafter Dreisbach) (quoting Letter from James Madison to
Jasper Adams (1833)). See also Letter from James Madison to Edward
Livingston (July 10, 1822), in 5 Founders’ Constitution 106 (“We are
teaching the world the great truth that [Governments] do better with-
out Kings & Nobles than with them. The merit will be doubled by the
other lesson that Religion flourishes in greater purity, without than
with the aid of [Government]”).
Cite as: 545 U. S. ____ (2005) 21
STEVENS, J., dissenting
427–429 (1962). THE CHIEF JUSTICE and JUSTICE SCALIA
ignore the separationist impulses—in accord with the
principle of “neutrality”—that these individuals brought to
the debates surrounding the adoption of the Establish-
ment Clause.27
Ardent separationists aside, there is another critical
nuance lost in the plurality’s portrayal of history. Simply
put, many of the Founders who are often cited as authori-
tative expositors of the Constitution’s original meaning
understood the Establishment Clause to stand for a nar-
rower proposition than the plurality, for whatever reason,
is willing to accept. Namely, many of the Framers under-
stood the word “religion” in the Establishment Clause to
encompass only the various sects of Christianity.
The evidence is compelling. Prior to the Philadelphia
Convention, the States had begun to protect “religious
freedom” in their various constitutions. Many of those
provisions, however, restricted “equal protection” and “free
exercise” to Christians, and invocations of the divine were
commonly understood to refer to Christ.28 That historical
background likely informed the Framers’ understanding of
——————
27 The contrary evidence cited by THE CHIEF JUSTICE and JUSTICE
SCALIA only underscores the obvious fact that leaders who have drafted
and voted for a text are eminently capable of violating their own rules.
The first Congress was—just as the present Congress is—capable of
passing unconstitutional legislation. Thus, it is no answer to say that
the Founders’ separationist impulses were “plainly rejected” simply
because the first Congress enacted laws that acknowledged God. See
McCreary County, post, at 13 (SCALIA, J., dissenting). To adopt such an
interpretive approach would misguidedly give authoritative weight to
the fact that the Congress that passed the Fourteenth Amendment also
enacted laws that tolerated segregation, and the fact that the Congress
that passed the First Amendment also enacted laws, such as the Alien
and Sedition Act, that indisputably violated our present understanding
of the First Amendment. See n. 36, infra; Lee, 505 U. S., at 626
(SOUTER, J., concurring).
28 See, e.g., Strang, The Meaning of “Religion” in the First Amend-
ment, 40 Duquesne L. Rev. 181, 220–223 (2002).
22 VAN ORDEN v. PERRY
STEVENS, J., dissenting
the First Amendment. Accordingly, one influential thinker
wrote of the First Amendment that “ ‘[t]he meaning of the
term “establishment” in this amendment unquestionably
is, the preference and establishment given by law to one
sect of Christians over every other.’ ” Jasper Adams, The
Relation of Christianity to Civil Government in the United
States (Feb. 13, 1833) (quoted in Dreisbach 16). That
definition tracked the understanding of the text Justice
Story adopted in his famous Commentaries, in which he
wrote that the “real object” of the Clause was:
“not to countenance, much less to advance Mahomet-
anism, or Judaism, or infidelity, by prostrating Chris-
tianity; but to exclude all rivalry among Christian
sects, and to prevent any national ecclesiastical estab-
lishment, which should give to an hierarchy the exclu-
sive patronage of the national government. It thus
sought to cut off the means of religious persecution,
(the vice and pest of former ages,) and the power of
subverting the rights of conscience in matters of relig-
ion, which had been trampled upon almost from the
days of the Apostles to the present age.” 2 J. Story,
Commentaries on the Constitution of the United
States §991, p. 701 (R. Rotunda & J. Nowak eds.
1987) (hereinafter Story); see also Wallace, 472 U. S.,
at 52–55, and n. 36.29
Along these lines, for nearly a century after the Founding,
many accepted the idea that America was not just a reli-
——————
29 Justice Story wrote elsewhere that “ ‘Christianity is indispensable
to the true interests & solid foundations of all free governments. I
distinguish . . . between the establishment of a particular sect, as the
Religion of the State, & the Establishment of Christianity itself, with-
out any preference of any particular form of it. I know not, indeed, how
any deep sense of moral obligation or accountableness can be expected
to prevail in the community without a firm persuasion of the great
Christian Truths.” Letter to Jasper Adams (May 14, 1833) Dreisbach
19.
Cite as: 545 U. S. ____ (2005) 23
STEVENS, J., dissenting
gious nation, but “a Christian nation.” Church of Holy
Trinity v. United States, 143 U. S. 457, 471 (1892).30
The original understanding of the type of “religion” that
qualified for constitutional protection under the Estab-
lishment Clause likely did not include those followers of
Judaism and Islam who are among the preferred “mono-
theistic” religions JUSTICE SCALIA has embraced in his
McCreary County opinion. See post, at 10–11 (dissenting
opinion).31 The inclusion of Jews and Muslims inside the
——————
30 See 143 U. S., at 471 (“ ‘[W]e are a Christian people, and the moral-
ity of the country is deeply ingrafted upon Christianity, and not upon
the doctrines or worship of . . . imposters’ ” (quoting People v. Ruggles, 8
Johns. 290, 295 (N. Y. Sup. Ct. 1811))); see also Vidal v. Philadelphia, 2
How. 127, 198–199 (1844). These views should not be read as those of
religious zealots. Chief Justice Marshall himself penned the historical
genesis of the Court’s assertion that our “ ‘institutions presuppose a
Supreme Being,’ ” see Zorach, 343 U. S., at 313, writing that the
“American population is entirely Christian, & with us, Christianity &
Religion are identified. It would be strange, indeed, if with such a
people, our institutions did not presuppose Christianity, & did not often
refer to it, & exhibit relations with it.” Letter from John Marshall to
Jasper Adams (May 9, 1833) (quoted in Dreisbach 18–19). Accord,
Story §988, p. 700 (“[A]t the time of the adoption of the constitution, . . .
the general, if not the universal, sentiment in America was, that
Christianity ought to receive encouragement from the state . . .” (foot-
note omitted)).
31 JUSTICE SCALIA’s characterization of this conclusion as nothing
more than my own personal “assurance” is misleading to say the least.
McCreary County, post, at 13. Reliance on our Nation’s early constitu-
tional scholars is common in this Court’s opinions. In particular, the
author of the plurality once noted that “Joseph Story, a Member of this
Court from 1811 to 1845, and during much of that time a professor at
the Harvard Law School, published by far the most comprehensive
treatise on the United States Constitution that had then appeared.”
Wallace, 472 U. S., at 104 (REHNQUIST, J., dissenting). And numerous
opinions of this Court, including two notable opinions authored by
JUSTICE SCALIA, have seen it fit to give authoritative weight to Joseph
Story’s treatise when interpreting other constitutional provisions. See,
e.g., United States v. Gaudin, 515 U. S. 506, 510–511 (1995) (Fifth
Amendment); Harmelin v. Michigan, 501 U. S. 957, 981–982 (1991)
(Eighth Amendment).
24 VAN ORDEN v. PERRY
STEVENS, J., dissenting
category of constitutionally favored religions surely would
have shocked Chief Justice Marshall and Justice Story.
Indeed, JUSTICE SCALIA is unable to point to any persua-
sive historical evidence or entrenched traditions in sup-
port of his decision to give specially preferred constitu-
tional status to all monotheistic religions. Perhaps this is
because the history of the Establishment Clause’s original
meaning just as strongly supports a preference for Chris-
tianity as it does a preference for monotheism. Generic
references to “God” hardly constitute evidence that those
who spoke the word meant to be inclusive of all monothe-
istic believers; nor do such references demonstrate that
those who heard the word spoken understood it broadly to
include all monotheistic faiths. See supra, at 21. JUSTICE
SCALIA’s inclusion of Judaism and Islam is a laudable act
of religious tolerance, but it is one that is unmoored from
the Constitution’s history and text, and moreover one that
is patently arbitrary in its inclusion of some, but exclusion
of other (e.g., Buddhism), widely practiced non-Christian
religions. See supra, at 12, 13–14, and n. 16 (noting that
followers of Buddhism nearly equal the number of Ameri-
cans who follow Islam). Given the original understanding
of the men who championed our “Christian nation”—men
who had no cause to view anti-Semitism or contempt for
atheists as problems worthy of civic concern—one must
ask whether JUSTICE SCALIA “has not had the courage (or
the foolhardiness) to apply [his originalism] principle
consistently.” McCreary County, post, at 7.
Indeed, to constrict narrowly the reach of the Estab-
lishment Clause to the views of the Founders would lead
to more than this unpalatable result; it would also leave
us with an unincorporated constitutional provision—in
other words, one that limits only the federal establishment
of “a national religion.” See Elk Grove Unified School
Dist. v. Newdow, 542 U. S. 1, 45 (2004) (THOMAS, J., con-
curring in judgment); cf. A. Amar, The Bill of Rights 36–39
Cite as: 545 U. S. ____ (2005) 25
STEVENS, J., dissenting
(1998). Under this view, not only could a State constitu-
tionally adorn all of its public spaces with crucifixes or
passages from the New Testament, it would also have full
authority to prescribe the teachings of Martin Luther or
Joseph Smith as the official state religion. Only the Fed-
eral Government would be prohibited from taking sides,
(and only then as between Christian sects).
A reading of the First Amendment dependent on either of
the purported original meanings expressed above would
eviscerate the heart of the Establishment Clause. It would
replace Jefferson’s “wall of separation” with a perverse wall
of exclusion—Christians inside, non-Christians out. It
would permit States to construct walls of their own choos-
ing—Baptists inside, Mormons out; Jewish Orthodox in-
side, Jewish Reform out. A Clause so understood might be
faithful to the expectations of some of our Founders, but it
is plainly not worthy of a society whose enviable hallmark
over the course of two centuries has been the continuing
expansion of religious pluralism and tolerance. Cf. Abing-
ton, 374 U. S., at 214; Zelman v. Simmons-Harris, 536 U. S.
639, 720, 723 (2002) (BREYER, J., dissenting).
Unless one is willing to renounce over 65 years of Estab-
lishment Clause jurisprudence and cross back over the
incorporation bridge, see Cantwell v. Connecticut, 310
U. S. 296, 303 (1940), appeals to the religiosity of the
Framers ring hollow.32 But even if there were a coherent
——————
32 JUSTICE SCALIA’s answer—that incorporation does not empty “the
incorporated provisions of their original meaning,” McCreary County,
post, at 15—ignores the fact that the Establishment Clause has its own
unique history. There is no evidence, for example, that incorporation of
the Confrontation Clause ran contrary to the core of the Clause’s
original understanding. There is, however, some persuasive evidence to
this effect regarding the Establishment Clause. See Elk Grove Unified
School Dist. v. Newdow, 542 U. S. 1, 49 (2004) (THOMAS, J., concurring
in judgment) (arguing that the Clause was originally understood to be a
“federalism provision” intended to prevent “Congress from interfering
with state establishments”). It is this unique history, not incorporation
26 VAN ORDEN v. PERRY
STEVENS, J., dissenting
way to embrace incorporation with one hand while stead-
fastly abiding by the Founders’ purported religious views
on the other, the problem of the selective use of history
remains. As the widely divergent views espoused by the
leaders of our founding era plainly reveal, the historical
record of the preincorporation Establishment Clause is too
indeterminate to serve as an interpretive North Star.33
It is our duty, therefore, to interpret the First Amend-
ment’s command that “Congress shall make no law re-
specting an establishment of religion” not by merely ask-
ing what those words meant to observers at the time of the
founding, but instead by deriving from the Clause’s text
and history the broad principles that remain valid today.
As we have said in the context of statutory interpretation,
legislation “often [goes] beyond the principal evil [at which
the statute was aimed] to cover reasonably comparable
evils, and it is ultimately the provisions of our laws rather
than the principal concerns of our legislators by which we
——————
writ large, that renders incoherent the postincorporation reliance on
the Establishment Clause’s original understanding.
JUSTICE THOMAS, at least, has faced this problem head-on. See id., at
45 (opinion concurring in judgment). But even if the decision to incor-
porate the Establishment Clause was misguided, it is at this point
unwise to reverse course given the weight of precedent that would have
to be cast aside to reach the intended result. See Cardozo, The Nature
of the Judicial Process 149 (1937) (“The labor of judges would be in-
creased almost to the breaking point if every past decision could be
reopened in every case”).
33 See Lee, 505 U. S., at 626 (SOUTER, J., concurring) (“[A]t best, . . .
the Framers simply did not share a common understanding of the
Establishment Clause,” and at worst, their overtly religious proclama-
tions show “that they . . . could raise constitutional ideals one day and
turn their backs on them the next”); Lynch v. Donnelly, 465 U. S. 668,
716 (1984) (Brennan, J., dissenting) (same); cf. Feldman, Intellectual
Origins of the Establishment Clause, 77 N. Y. U. L. Rev. 346, 404–405
(2002) (noting that, for the Framers, “the term ‘establishment’ was a
contested one” and that the word “was used in both narrow and expan-
sive ways in the debates of the time”).
Cite as: 545 U. S. ____ (2005) 27
STEVENS, J., dissenting
are governed.” Oncale v. Sundowner Offshore Services,
Inc., 523 U. S. 75, 79 (1998). In similar fashion, we have
construed the Equal Protection Clause of the Fourteenth
Amendment to prohibit segregated schools, see Brown v.
Board of Education, 349 U. S. 294 (1955), even though
those who drafted that Amendment evidently thought that
separate was not unequal.34 We have held that the same
Amendment prohibits discrimination against individuals
on account of their gender, Frontiero v. Richardson, 411
U. S. 677 (1973), despite the fact that the contemporaries
of the Amendment “doubt[ed] very much whether any
action of a State not directed by way of discrimination
against the negroes as a class, or on account of their race,
will ever be held to come within the purview of this provi-
sion,” Slaughter-House Cases, 16 Wall. 36, 81 (1873). And
we have construed “evolving standards of decency” to
make impermissible practices that were not considered
“cruel and unusual” at the founding. See Roper v. Sim-
mons, 543 U. S. ___, ___ (2005) (slip op., at 1) (STEVENS, J.,
concurring).
To reason from the broad principles contained in the
Constitution does not, as JUSTICE SCALIA suggests, re-
quire us to abandon our heritage in favor of unprincipled
expressions of personal preference. The task of applying
the broad principles that the Framers wrote into the text
of the First Amendment is, in any event, no more a matter
of personal preference than is one’s selection between two
(or more) sides in a heated historical debate. We serve our
constitutional mandate by expounding the meaning of
——————
34 See Hovenkamp, The Cultural Crises of the Fuller Court, 104 Yale
L. J. 2309, 2337–2342 (1995) (“Equal protection had not been identified
with social integration when the Fourteenth Amendment was drafted
in 1866, nor when it was ratified in 1868, nor when Plessy [v. Ferguson,
163 U. S. 537] was decided in 1896”); see also 1 L. Tribe, American
Constitutional Law §1–14, pp. 54–55, and n. 19 (3d ed. 2000) (collecting
scholarship).
28 VAN ORDEN v. PERRY
STEVENS, J., dissenting
constitutional provisions with one eye towards our Na-
tion’s history and the other fixed on its democratic aspira-
tions. See McCulloch v. Maryland, 4 Wheat. 316, 407, 415
(1819) (“[W]e must never forget, that it is a constitution we
are expounding” that is intended to “endure for ages to
come, and, consequently, to be adapted to the various
crises of human affairs”). Constitutions, after all,
“are not ephemeral enactments, designed to meet
passing occasions. They are, to use the words of Chief
Justice Marshall, ‘designed to approach immortality
as nearly as human institutions can approach it.’ The
future is their care and provision for events of good
and bad tendencies of which no prophecy can be made.
In the application of a constitution, therefore, our con-
templation cannot be only of what has been but of
what may be. Under any other rule a constitution
would indeed be as easy of application as it would be
deficient in efficacy and power. Its general principles
would have little value and be converted by precedent
into impotent and lifeless formulas.” Weems v. United
States, 217 U. S. 349, 373 (1910).
The principle that guides my analysis is neutrality.35
——————
35 JUSTICE THOMAS contends that the Establishment Clause cannot
include such a neutrality principle because the Clause reaches only the
governmental coercion of individual belief or disbelief. Ante, at 4
(concurring opinion). In my view, although actual religious coercion is
undoubtedly forbidden by the Establishment Clause, that cannot be the
full extent of the provision’s reach. Jefferson’s “wall” metaphor and his
refusal to issue Thanksgiving proclamations, see supra, at 19, would
have been nonsensical if the Clause reached only direct coercion.
Further, under the “coercion” view, the Establishment Clause would
amount to little more than a replica of our compelled speech doctrine,
see, e.g., West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 639 (1943),
with a religious flavor. A Clause so interpreted would not prohibit
explicit state endorsements of religious orthodoxies of particular sects,
actions that lie at the heart of what the Clause was meant to regulate.
The government could, for example, take out television advertisements
Cite as: 545 U. S. ____ (2005) 29
STEVENS, J., dissenting
The basis for that principle is firmly rooted in our Nation’s
history and our Constitution’s text. I recognize that the
requirement that government must remain neutral be-
tween religion and irreligion would have seemed foreign to
some of the Framers; so too would a requirement of neu-
trality between Jews and Christians. But cf. Letter from
George Washington to the Hebrew Congregation in New-
port, R. I. (Aug. 18, 1790), in 6 Papers of George Washing-
ton 284, 285 (D. Twohig ed. 1996). Fortunately, we are
not bound by the Framers’ expectations—we are bound by
the legal principles they enshrined in our Constitution.
Story’s vision that States should not discriminate between
Christian sects has as its foundation the principle that
government must remain neutral between valid systems of
belief. As religious pluralism has expanded, so has our
acceptance of what constitutes valid belief systems. The
evil of discriminating today against atheists, “polytheists[,]
——————
lauding Catholicism as the only pure religion. Under the reasoning
endorsed by JUSTICE THOMAS, those programs would not be coercive
because the viewer could simply turn off the television or ignore the ad.
See ante, at 3 (“[T]he mere presence of the monument . . . involves no
coercion” because the passerby “need not stop to read it or even to look
at it”).
Further, the notion that the application of a “coercion” principle
would somehow lead to a more consistent jurisprudence is dubious.
Enshrining coercion as the Establishment Clause touchstone fails to
eliminate the difficult judgment calls regarding “the form that coercion
must take.” McCreary County, post, at 25 (SCALIA, J., dissenting).
Coercion may seem obvious to some, while appearing nonexistent to
others. Compare Santa Fe Independent School Dist., 530 U. S., at 312,
with Lee, 505 U. S., at 642 (SCALIA, J., dissenting). It may be a legal
requirement or an effect that is indirectly inferred from a variety of
factors. See, e.g., Engel v. Vitale, 370 U. S. 421, 431 (1962) (“When the
power, prestige and financial support of government is placed behind a
particular religious belief, the indirect coercive pressure upon religious
minorities to conform to the prevailing officially approved religion is
plain”). In short, “reasonable people could, and no doubt would, argue
about whether coercion existed in a particular situation.” Feldman,
The Intellectual Origins of the Establishment Clause, 77 N. Y. U.
L. Rev. 346, 415 (2002).
30 VAN ORDEN v. PERRY
STEVENS, J., dissenting
and believers in unconcerned deities,” McCreary County,
post, at 10 (SCALIA, J., dissenting), is in my view a direct
descendent of the evil of discriminating among Christian
sects. The Establishment Clause thus forbids it and, in
turn, forbids Texas from displaying the Ten Command-
ments monument the plurality so casually affirms.
IV
The Eagles may donate as many monuments as they
choose to be displayed in front of Protestant churches,
benevolent organizations’ meeting places, or on the front
lawns of private citizens. The expurgated text of the King
James version of the Ten Commandments that they have
crafted is unlikely to be accepted by Catholic parishes,
Jewish synagogues, or even some Protestant denomina-
tions, but the message they seek to convey is surely more
compatible with church property than with property that
is located on the government side of the metaphorical wall.
The judgment of the Court in this case stands for the
proposition that the Constitution permits governmental
displays of sacred religious texts. This makes a mockery
of the constitutional ideal that government must remain
neutral between religion and irreligion. If a State may
endorse a particular deity’s command to “have no other
gods before me,” it is difficult to conceive of any textual
display that would run afoul of the Establishment Clause.
The disconnect between this Court’s approval of Texas’s
monument and the constitutional prohibition against
preferring religion to irreligion cannot be reduced to the
exercise of plotting two adjacent locations on a slippery
slope. Cf. ante, at 8 (BREYER, J., concurring in judgment).
Rather, it is the difference between the shelter of a for-
tress and exposure to “the winds that would blow” if the
wall were allowed to crumble. See TVA v. Hill, 437 U. S.
153, 195 (1978) (internal quotation marks omitted). That
wall, however imperfect, remains worth preserving.
I respectfully dissent.
Cite as: 545 U. S. ____ (2005) 1
O’CONNOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 03–1500
_________________
THOMAS VAN ORDEN, PETITIONER v. RICK PERRY,
IN HIS OFFICIAL CAPACITY AS GOVERNOR OF TEXAS
AND CHAIRMAN, STATE PRESERVATION
BOARD, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 27, 2005]
JUSTICE O’CONNOR, dissenting.
For essentially the reasons given by JUSTICE SOUTER,
post, p.___ (dissenting opinion), as well as the reasons
given in my concurrence in McCreary County v. American
Civil Liberties Union of Ky., post, at ___, I respectfully
dissent.
Cite as: 545 U. S. ____ (2005) 1
SOUTER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 03–1500
_________________
THOMAS VAN ORDEN, PETITIONER v. RICK PERRY,
IN HIS OFFICIAL CAPACITY AS GOVERNOR OF TEXAS
AND CHAIRMAN, STATE PRESERVATION
BOARD, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 27, 2005]
JUSTICE SOUTER, with whom JUSTICE STEVENS and
JUSTICE GINSBURG join, dissenting.
Although the First Amendment’s Religion Clauses have
not been read to mandate absolute governmental neutral-
ity toward religion, cf. Sherbert v. Verner, 374 U. S. 398
(1963), the Establishment Clause requires neutrality as a
general rule, e.g., Everson v. Board of Ed. of Ewing, 330
U. S. 1, 18 (1947), and thus expresses Madison’s condem-
nation of “employ[ing] Religion as an engine of Civil pol-
icy,” Memorial and Remonstrance Against Religious As-
sessments, 2 Writings of James Madison 183, 187 (G.
Hunt ed. 1901). 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.
Until today, only one of our cases addressed the consti-
tutionality of posting the Ten Commandments, Stone v.
Graham, 449 U. S. 39, 41–42 (1980) (per curiam). A Ken-
tucky statute required posting the Commandments on the
walls of public school classrooms, and the Court described
the State’s purpose (relevant under the tripartite test laid
2 VAN ORDEN v. PERRY
SOUTER, J., dissenting
out in Lemon v. Kurtzman, 403 U. S. 602 (1971)) as being
at odds with the obligation of religious neutrality.
“The pre-eminent purpose for posting the Ten Com-
mandments on schoolroom walls is plainly religious in
nature. The Ten Commandments are undeniably a
sacred text in the Jewish and Christian faiths, and no
legislative recitation of a supposed secular purpose
can blind us to that fact. The Commandments do not
confine themselves to arguably secular matters, such
as honoring one’s parents, killing or murder, adul-
tery, stealing, false witness, and covetousness.
Rather, the first part of the Commandments con-
cerns the religious duties of believers: worshipping
the Lord God alone, avoiding idolatry, not using the
Lord’s name in vain, and observing the Sabbath
Day.” 449 U. S, at 41–42 (footnote and citations
omitted).
What these observations underscore are the simple reali-
ties 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.1
——————
1 The clarity of the religious manifestation in Stone was unaffected by
the State’s effort to obscure it: the Kentucky statute that mandated
posting the Commandments in classrooms also required the addition to
every posting of a notation reading, “[t]he secular application of the Ten
Commandments is clearly seen in its adoption as the fundamental legal
code of Western Civilization and the Common Law of the United
States.” 449 U. S., at 39–40, n. 1.
In the present case, the religious purpose was evident on the part
of the donating organization. When the Fraternal Order of Eagles, the
group that gave the monument to the State of Texas, donated identical
monuments to other jurisdictions, it was seeking to impart a religious
message. See Adland v. Russ, 307 F. 3d 471, 475 (CA6 2002) (quoting
the Eagles’ statement in a letter written to Kentucky when a monu-
ment was donated to that Commonwealth: “Most of today’s younger
generation either have not seen the Ten Commandments or have not
Cite as: 545 U. S. ____ (2005) 3
SOUTER, J., dissenting
Thus, a pedestrian happening upon the monument at
issue here needs no training in religious doctrine to realize
that the statement of the Commandments, quoting God
himself, proclaims that the will of the divine being is the
source of obligation to obey the rules, including the facially
secular ones. In this case, moreover, the text is presented
to give particular prominence to the Commandments’
first sectarian reference, “I am the Lord thy God.”
That proclamation is centered on the stone and written
in slightly larger letters than the subsequent recita-
tion. To ensure that the religious nature of the monu-
ment is clear to even the most casual passerby, the
word “Lord” appears in all capital letters (as does the
word “am”), so that the most eye-catching segment of
the quotation is the declaration “I AM the LORD thy
God.” App. to Pet. for Cert. 21. What follows, of
course, are the rules against other gods, graven im-
ages, vain swearing, and Sabbath breaking. And the
full text of the fifth Commandment puts forward filial
respect as a condition of long life in the land “which the
Lord thy God giveth thee.” See ibid. These “[w]ords
. . . make [the] . . . religious meaning unmistakably
clear.” County of Allegheny v. American Civil Liberties
Union, Greater Pittsburgh Chapter, 492 U. S. 573, 598
(1989).
To drive the religious point home, and identify the
message as religious to any viewer who failed to read the
text, the engraved quotation is framed by religious sym-
bols: two tablets with what appears to be ancient script on
them, two Stars of David, and the superimposed Greek
——————
been taught them. In our opinion the youth of today is in dire need of
learning the simple laws of God . . .”). Accordingly, it was not just the
terms of the moral code, but the proclamation that the terms of the code
were enjoined by God, that the Eagles put forward in the monuments
they donated.
4 VAN ORDEN v. PERRY
SOUTER, J., dissenting
letters Chi and Rho as the familiar monogram of Christ.
Nothing on the monument, in fact, detracts from its
religious nature,2 see ibid. (“Here, unlike in Lynch [v.
Donnelly, 465 U. S. 668 (1984)], nothing in the context
of the display detracts from the crèche’s religious mes-
sage”), and the plurality does not suggest otherwise. It
would therefore be difficult to miss the point that the
government of Texas3 is telling everyone who sees the
monument to live up to a moral code because God re-
quires it, with both code and conception of God being
rightly understood as the inheritances specifically of
Jews and Christians. And it is likewise unsurprising
that the District Court expressly rejected Texas’s argu-
ment that the State’s purpose in placing the monument
on the capitol grounds was related to the Command-
ments’ role as “part of the foundation of modern secular
law in Texas and elsewhere.” App. to Pet. for Cert. 32.
The monument’s presentation of the Commandments
with religious text emphasized and enhanced stands in
contrast to any number of perfectly constitutional depic-
——————
2 Thatthe monument also surrounds the text of the Commandments
with various American symbols (notably the U. S. flag and a bald eagle)
only underscores the impermissibility of Texas’s actions: by juxtaposing
these patriotic symbols with the Commandments and other religious
signs, the monument sends the message that being American means
being religious (and not just being religious but also subscribing to the
Commandments, i.e., practicing a monotheistic religion).
3 There is no question that the State in its own right is broadcasting
the religious message. When Texas accepted the monument from the
Eagles, the state legislature, aware that the Eagles “for the past
several years have placed across the country . . . parchment plaques
and granite monoliths of the Ten Commandments . . . [in order] to
promote youth morality and help stop the alarming increase in delin-
quency,” resolved “that the Fraternal Order of the Eagles of the State of
Texas be commended and congratulated for its efforts and contributions
in combating juvenile delinquency throughout our nation.” App. 97.
The State, then, expressly approved of the Eagles’ proselytizing, which
it made on its own.
Cite as: 545 U. S. ____ (2005) 5
SOUTER, J., dissenting
tions of them, the frieze of our own Courtroom providing a
good example, where the figure of Moses stands among
history’s great lawgivers. While Moses holds the tablets of
the Commandments showing some Hebrew text, no one
looking at the lines of figures in marble relief is likely to
see a religious purpose behind the assemblage or take
away a religious message from it. Only one other depic-
tion represents a religious leader, and the historical per-
sonages are mixed with symbols of moral and intellectual
abstractions like Equity and Authority. See County of
Allegheny, supra, at 652 (STEVENS, J., concurring in part
and dissenting in part). Since Moses enjoys no especial
prominence on the frieze, viewers can readily take him to
be there as a lawgiver in the company of other lawgivers;
and the viewers may just as naturally see the tablets of
the Commandments (showing the later ones, forbidding
things like killing and theft, but without the divine pref-
ace) as background from which the concept of law
emerged, ultimately having a secular influence in the
history of the Nation. Government may, of course, consti-
tutionally call attention to this influence, and may post
displays or erect monuments recounting this aspect of our
history no less than any other, so long as there is a context
and that context is historical. Hence, a display of the
Commandments accompanied by an exposition of how they
have influenced modern law would most likely be constitu-
tionally unobjectionable.4 And the Decalogue could, as
——————
4 For similar reasons, the other displays of the Commandments that
the plurality mentions, ante, at 9, do not run afoul of the Establishment
Clause. The statues of Moses and St. Paul in the Main Reading Room
of the Library of Congress are 2 of 16 set in close proximity, statues
that “represent men illustrious in the various forms of thought and
activity . . . .” The Library of Congress: The Art and Architecture of the
Thomas Jefferson Building 127 (J. Cole and H. Reeds eds. 1997). Moses
and St. Paul represent religion, while the other 14 (a group that in-
cludes Beethoven, Shakespeare, Michelangelo, Columbus, and Plato)
represent the nonreligious categories of philosophy, art, history, com-
6 VAN ORDEN v. PERRY
SOUTER, J., dissenting
Stone suggested, be integrated constitutionally into a
course of study in public schools. Stone, 449 U. S., at 42.5
Texas seeks to take advantage of the recognition that
visual symbol and written text can manifest a secular
purpose in secular company, when it argues that its
monument (like Moses in the frieze) is not alone and ought
to be viewed as only 1 among 17 placed on the 22 acres
surrounding the state capitol. Texas, indeed, says that the
Capitol grounds are like a museum for a collection of
——————
merce, science, law, and poetry. Ibid. Similarly, the sculpture of the
woman beside the Decalogue in the Main Reading Room is one of 8
such figures “represent[ing] eight characteristic features of civilized life
and thought,” the same 8 features (7 of them nonreligious) that Moses,
St. Paul, and the rest of the 16 statues represent. Id., at 125.
The inlay on the floor of the National Archives Building is one of four
such discs, the collective theme of which is not religious. Rather, the
discs “symbolize the various types of Government records that were to
come into the National Archive.” Letter from Judith A. Koucky, Archi-
vist, Records Control Section to Catherine Millard, Oct. 1, 2003 (on file
with Clerk of the Court). (The four categories are war and defense,
history, justice, and legislation. Each disc is paired with a winged
figure; the disc containing the depiction of the Commandments, a
depiction that, notably, omits the Commandments’ text, is paired with
a figure representing legislation. Ibid.)
As for Moses’s “prominen[t] featur[ing] in the Chamber of the United
States House of Representatives,” ante, at 9 (plurality opinion), Moses
is actually 1 of 23 portraits encircling the House Chamber, each ap-
proximately the same size, having no religious theme. The portraits
depict “men noted in history for the part they played in the evolution of
what has become American law.” Art in the United States Capitol 282;
House Doc. No. 94–660 (1978). More importantly for purposes of this
case, each portrait consists only of the subject’s face; the Ten Com-
mandments appear nowhere in Moses’s portrait.
5 Similarly permissible, though obviously of a different character, are
laws that can be traced back to the Commandments (even the more
religious ones) but are currently supported by nonreligious considera-
tions. See McCreary County v. American Civil Liberties Union of Ky.,
post, at 10 (opinion of the Court) (noting that in McGowan v. Maryland,
366 U. S. 420 (1961), the Court “upheld Sunday closing laws on practi-
cal secular grounds after finding that the government had forsaken the
religious purposes motivating centuries-old predecessor laws”).
Cite as: 545 U. S. ____ (2005) 7
SOUTER, J., dissenting
exhibits, the kind of setting that several Members of the
Court have said can render the exhibition of religious
artifacts permissible, even though in other circumstances
their display would be seen as meant to convey a religious
message forbidden to the State. County of Allegheny, 492
U. S., at 595 (opinion of Blackmun, J., joined by S TEVENS ,
J.); Lynch v. Donnelly, 465 U. S. 668, 692 (1984)
(O’CONNOR, J., concurring). So, for example, the Govern-
ment of the United States does not violate the Establish-
ment Clause by hanging Giotto’s Madonna on the wall of
the National Gallery.
But 17 monuments with no common appearance, his-
tory, or esthetic role scattered over 22 acres is not a mu-
seum, 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.
One monument expresses admiration for pioneer women.
One pays respect to the fighters of World War II. And one
quotes the God of Abraham whose command is the sanc-
tion for moral law. The themes are individual grit, patri-
otic courage, and God as the source of Jewish and Chris-
tian morality; there is no common denominator. In like
circumstances, we rejected an argument similar to the
State’s, noting in County of Allegheny that “[t]he presence
of Santas or other Christmas decorations elsewhere in the
. . . [c]ourthouse, and of the nearby gallery forum, fail to
negate the [crèche’s] endorsement effect. . . . The record
demonstrates . . . that the crèche, with its floral frame,
was its own display distinct from any other decorations or
exhibitions in the building.” 492 U. S., at 598–599, n. 48.6
——————
6 It is true that the Commandments monument is unlike the display
of the Commandments considered in the other Ten Commandments
case we decide today, McCreary County. There the Commandments
were posted at the behest of the county in the first instance, whereas
the State of Texas received the monument as a gift from the Eagles,
8 VAN ORDEN v. PERRY
SOUTER, J., dissenting
If the State’s museum argument does nothing to blunt
the religious message and manifestly religious purpose
behind it, neither does the plurality’s reliance on generali-
ties culled from cases factually different from this one.
E.g., ante, at 8 (“We have acknowledged, for example, that
‘religion has been closely identified with our history and
government,’ School Dist. of Abington Township v.
Schempp, 374 U. S., at 212, and that ‘[t]he history of man
is inseparable from the history of religion,’ Engel v. Vitale,
370 U. S. 421, 434 (1962)”). In fact, it is not until the end
of its opinion that the plurality turns to the relevant
precedent of Stone, a case actually dealing with a display
of the Decalogue.
When the plurality finally does confront Stone, it tries to
avoid the case’s obvious applicability by limiting its hold-
ing to the classroom setting. The plurality claims to find
authority for limiting Stone’s reach this way in the opin-
ion’s citations of two school-prayer cases, School Dist. of
Abington Township v. Schempp, 374 U. S. 203 (1963), and
Engel v. Vitale, 370 U. S. 421 (1962). But Stone relied on
those cases for widely applicable notions, not for any
concept specific to schools. The opinion quoted Schempp’s
statements that “it is no defense to urge that the religious
practices here may be relatively minor encroachments on
the First Amendment,” Schempp, supra, at 225, quoted in
Stone, 449 U. S., at 42; and that “the place of the Bible as
——————
which apparently conceived of the donation at the suggestion of a movie
producer bent on promoting his commercial film on the Ten Com-
mandments, Books v. Elkhart, 235 F. 3d 292, 294–295 (CA7 2000), cert.
denied, 532 U. S. 1058 (2001). But this distinction fails to neutralize
the apparent expression of governmental intent to promote a religious
message: although the nativity scene in Allegheny County was donated
by the Holy Name Society, we concluded that “[n]o viewer could rea-
sonably think that [the scene] occupies [its] location [at the seat of
county government] without the support and approval of the govern-
ment.” County of Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573, 599–600 (1989).
Cite as: 545 U. S. ____ (2005) 9
SOUTER, J., dissenting
an instrument of religion cannot be gainsaid,” Schempp,
supra, at 224, quoted in Stone, supra, at 41, n. 3. And
Engel was cited to support the proposition that the State
was responsible for displaying the Commandments, even
though their framed, printed texts were bought with
private subscriptions. Stone, supra, at 42 (“[T]he mere
posting of the [Commandments] under the auspices of the
legislature provides the official support of the State Gov-
ernment that the Establishment Clause prohibits” (omis-
sion and internal quotation marks omitted)). Thus, the
schoolroom was beside the point of the citations, and that
is presumably why the Stone Court failed to discuss the
educational setting, as other opinions had done when
school was significant. E.g., Edwards v. Aguillard, 482
U. S. 578, 584 (1987). Stone did not, for example, speak of
children’s impressionability or their captivity as an audi-
ence in a school class. In fact, Stone’s reasoning reached
the classroom only in noting the lack of support for the
claim that the State had brought the Commandments into
schools in order to “integrat[e] [them] into the school
curriculum.” 449 U. S., at 42. Accordingly, our numerous
prior discussions of Stone have never treated its holding as
restricted to the classroom.7
Nor can the plurality deflect Stone by calling the Texas
monument “a far more passive use of [the Decalogue] than
was the case in Stone, where the text confronted elemen-
tary school students every day.” Ante, at 12. Placing a
monument on the ground is not more “passive” than hang-
——————
7 In any event, the fact that we have been, as the plurality says, “par-
ticularly vigilant in monitoring compliance with the Establishment
Clause in elementary and secondary schools,” ante, at 11, does not of
course mean that anything goes outside the schoolhouse. As cases like
County of Allegheny and Lynch v. Donnelly, 465 U. S. 668 (1984),
illustrate, we have also closely scrutinized government displays of
religious symbols. And for reasons discussed in the text, the Texas
monument cannot survive even a relaxed level of scrutiny.
10 VAN ORDEN v. PERRY
SOUTER, J., dissenting
ing a sheet of paper on a wall when both contain the same
text to be read by anyone who looks at it. The problem in
Stone was simply that the State was putting the Com-
mandments there to be seen, just as the monument’s
inscription is there for those who walk by it.
To be sure, Kentucky’s compulsory-education law meant
that the schoolchildren were forced to see the display
every day, whereas many see the monument by choice,
and those who customarily walk the Capitol grounds can
presumably avoid it if they choose. But in my judgment
(and under our often inexact Establishment Clause juris-
prudence, such matters often boil down to judgment, see
ante, at 3–4 (BREYER, J., concurring in judgment)), this
distinction should make no difference. The monument in
this case sits on the grounds of the Texas State Capitol.
There is something significant in the common term “state-
house” to refer to a state capitol building: it is the civic
home of every one of the State’s citizens. If neutrality in
religion means something, any citizen should be able to
visit that civic home without having to confront religious
expressions clearly meant to convey an official religious
position that may be at odds with his own religion, or with
rejection of religion. See County of Allegheny, 492 U. S., at
626 (O’CONNOR, J., concurring in part and concurring in
judgment) (“I agree that the crèche displayed on the
Grand Staircase of the Allegheny County Courthouse, the
seat of county government, conveys a message to nonad-
herents of Christianity that they are not full members of
the political community . . . . The display of religious
symbols in public areas of core government buildings runs
a special risk of making religion relevant, in reality or
public perception, to status in the political community”
(alteration and internal quotation marks omitted)).
Finally, though this too is a point on which judgment
will vary, I do not see a persuasive argument for constitu-
tionality in the plurality’s observation that Van Orden’s
Cite as: 545 U. S. ____ (2005) 11
SOUTER, J., dissenting
lawsuit comes “[f]orty years after the monument’s erection
. . . ,” ante, at 2, an observation that echoes the State’s
contention that one fact cutting in its favor is that “the
monument stood . . . in Austin . . . for some forty years
without generating any controversy or litigation,” Brief for
Respondents 25. It is not that I think the passage of
time is necessarily irrelevant in Establishment Clause
analysis. We have approved framing-era practices
because they must originally have been understood as
constitutionally permissible, e.g., Marsh v. Chambers,
463 U. S. 783 (1983) (legislative prayer), and we have
recognized that Sunday laws have grown recognizably
secular over time, McGowan v. Maryland, 366 U. S. 420
(1961). There is also an analogous argument, not yet
evaluated, that ritualistic religious expression can
become so numbing over time that its initial Estab-
lishment Clause violation becomes at some point too
diminished for notice. But I do not understand any of
these to be the State’s argument, which rather seems
to be that 40 years without a challenge shows that as a
factual matter the religious expression is too tepid to
provoke a serious reaction and constitute a violation.
Perhaps, but the writer of Exodus chapter 20 was not
lukewarm, and other explanations may do better in
accounting for the late resort to the courts. Suing a
State over religion puts nothing in a plaintiff’s pocket
and can take a great deal out, and even with volunteer
litigators to supply time and energy, the risk of social
ostracism can be powerfully deterrent. I doubt that a
slow walk to the courthouse, even one that took 40
years, is much evidentiary help in applying the Estab-
lishment Clause.
I would reverse the judgment of the Court of Appeals.