United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 12, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-51184
THOMAS VAN ORDEN
Plaintiff-Appellant,
versus
RICK PERRY, in his official capacity as
Governor of Texas and Chairman,
State Preservation Board;
DAVID DEWHURST, in his official capacity
as Co-Vice Chairman, State Preservation Board
and President of the Senate of Texas;
TOM CRADDICK, in his official capacity
as Co-Vice Chairman, State Preservation Board
and Speaker of the House of Representatives of Texas;
CHRIS HARRIS, in his official capacity
as Member of the State Preservation Board;
PEGGY HAMRICK, in her official capacity
as Member of the State Preservation Board;
JOCELYN LEVI STRAUS, in her official capacity
as Member of the Texas Preservation Board;
CHARLYNN DOERING, in her official capacity
as Interim Executive Director, State Preservation Board,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Texas
Before HIGGINBOTHAM, STEWART, and PRADO, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
The plaintiff, Thomas Van Orden, asks the federal courts to
order the State of Texas to remove from the grounds of the State
Capitol a granite monument in which the Ten Commandments are
etched. In a bench trial, the district court considered documents,
testimony, and an extensive stipulation of facts filed by the
parties. In a careful opinion, the court rejected the claim of
First Amendment violations and entered judgment for the State. The
plaintiff appeals. We affirm.
I
The Capitol, with its surrounding twenty-two acres, was
dedicated on May 16, 1888. The first monument was erected on these
grounds three years later. It was “a bronze statue of a Texan
holding a muzzle-loading rifle atop a Texas Sunset Red granite
base.” Names of the Texans who died in the battle of the Alamo are
inscribed on its four granite supports. Sixteen additional
monuments have since been erected on the capitol grounds, a
protected National Historic Landmark maintained by the State
Preservation Board.1
The Visitor Services of the State provides tours of the
Capitol Building with its historic statuary, portraits, and
memorabilia, and it publishes a written guide for walking tours of
1
The parties stipulated that “the Capitol, together with its
grounds and the monuments erected and maintained there, constitute
a National Historic Landmark.” They also stipulated that “the Ten
Commandments monument is an element of a legally-protected National
Historic Landmark.”
2
the grounds for visitors who wish to continue with the outdoor
displays. The guided tour of the Capitol Building offers a wide
array of monuments, plaques, and seals depicting both the secular
and religious history of Texas. They include a tribute to African
American legislators, a Confederate plaque, a plaque commemorating
the donors of the granite for the building, and a plaque
commemorating the war with Mexico. There is a Six Flags Over Texas
display on the floor of the Capitol Rotunda featuring the Mexican
Eagle and serpent - which as visitors will learn, is a symbol of
Aztec prophecy - together with the Confederate Seal containing the
inscription “Deo Vindice” (God will judge). Should the tour
continue to the Supreme Court Building, visitors will find
inscribed above the bench the phrase “Sicut Patribus, Sit Deus
Nobis” (As God was to our fathers, may He also be to us). Before
reaching the Supreme Court building from the Capitol, visitors will
encounter four other monuments in the immediate vicinity: a tribute
to Texas children; a statue of a pioneer woman holding a child in
tribute to the role of women in Texas history; a replica of the
Statue of Liberty; and a tribute to the Texans lost at Pearl
Harbor.
The Ten Commandments monument was a gift of the Fraternal
Order of Eagles, accepted by a joint resolution of the House and
Senate in early 1961. It is a granite monument approximately six
feet high and three and a half feet wide. In the center of the
monument, a large panel displays a nonsectarian version of the text
3
of the Commandments. Above this text, the monument contains
depictions of two small tablets with ancient Hebrew script. There
are also several symbols etched into the monument: just above the
text, there is an American eagle grasping the American flag; higher
still, there is an eye inside a pyramid closely resembling the
symbol displayed on the one-dollar bill. Just below the text are
two small Stars of David, as well as a symbol representing Christ:
two Greek letters, Chi and Rho, superimposed on each other. Just
below the text of the commandments, offset in a decorative, scroll-
shaped box, the monument bears the inscription: “PRESENTED TO THE
PEOPLE AND YOUTH OF TEXAS BY THE FRATERNAL ORDER OF EAGLES OF TEXAS
1961.”
The parties stipulated that (1) the sparse legislative history
“contain[s] no record of any discussion about the monument, or the
reasons for its acceptance, and is comprised entirely of House and
Senate Journal entries”; (2) the State selected the site on the
recommendation of the Building Engineering and Management Division
of the State Board of Control; (3) the expenses “were borne
exclusively by the Eagles”; (4) the monument requires virtually no
maintenance; and (5) the dedication of the monument was presided
over by Senator Bruce Reagan and Representative Will Smith. There
is no official record that any other person participated.
The main entry into the Capitol Building is on its south side
facing Congress Street. The monument displaying the Ten
Commandments is located on the north side of the Capitol Building
4
on a line drawn between the Supreme Court and the Capitol Rotunda,
about 75 feet from the Capitol Building, and 123 feet from the
Supreme Court Building.
II
The plaintiff argues that Texas “accepted” the monument “for
the purpose of promoting the Commandments as a personal code of
conduct for youths and [b]ecause the Commandments are a sectarian
religious code, their promotion and endorsement by the State as a
personal code contravenes the First Amendment.” He asserts that
the district court’s finding that the State had a secular purpose
for the display is not supported by the evidence and that a
reasonable viewer would perceive the display of the decalogue as a
State advancement and endorsement of religion favoring the Jewish
and Christian faiths.
The State replies that the display serves a secular purpose as
found by the district court and a reasonable observer would not
conclude that the State is seeking to advance, endorse, or promote
religion by its display. To the contrary, the State observes that
the display has been in place without legal attack for over forty-
two years and, viewed in context, is part of the state’s
commemorative display of significant events and strands of Texas
history. It argues that a reasonable person touring the Capitol
Building and its historical grounds would not see the display of
the decalogue as State endorsement of religion. Rather, with its
simple presentation and location between the Capitol Building and
5
the Texas Supreme Court Building, a reasonable viewer would see the
monument as a recognition of the large role of the decalogue in the
development of Texas law. Equally, with its proximity to the
pioneer woman holding a child and to the figures of children at
play, it would be seen as a fit location to express appreciation
for the work of the Eagles with American youth.
III
Through the Fourteenth Amendment, Texas is controlled by the
command of the First Amendment that it “shall make no law
respecting an establishment of religion.”2 In its thirty-two year
life, Lemon v. Kurtzman3 has been criticized but remains a required
starting point in deciding contentions that state displays of
symbols and writings with a religious message are contrary to the
First Amendment. Its three-part test requires that a court
consider (1) whether the government activity in question has a
secular purpose, (2) whether the activity’s primary effect advances
or inhibits religion, and (3) whether the government activity
fosters an excessive entanglement with religion.4 A challenged
activity must survive each prong to pass constitutional scrutiny.
The plaintiff here concedes that excessive entanglement, the third
inquiry, is not an issue in this case. We need only consider,
2
U.S. CONST. amend. I, cl. 1.
3
403 U.S. 602 (1971).
4
Edwards v. Aguillard, 482 U.S. 578, 583 (1987).
6
then, whether Texas lacked a secular purpose and whether the
primary effect of the display is to advance religion.
In refining these two tests, the Supreme Court has interpreted
the First Amendment to prohibit government action that has either
the purpose or effect of endorsing or disapproving of religion.5
A display has the purpose of endorsing religion when it “‘convey[s]
or attempt[s] to convey a message that religion or a particular
religious belief is favored or preferred.’”6 And to determine
whether it has the effect of endorsing religion we ask “what
viewers may fairly understand to be the purpose of the display.”7
This is the observation of a reasonable observer, not of the
uninformed, the casual passerby, the heckler, or the reaction of
a single individual. Rather, the reasonable observer standard
attempts to capture the “concern with the political community writ
large.”8
5
County of Allegheny v. Am. Civil Liberties Union, 492 U.S.
573, 600-01 (1989); Lynch v. Donnelly, 465 U.S. 668, 690 (1984)
(O’Connor, J., concurring).
6
Allegheny, 492 U.S. at 593 (quoting Wallace v. Jaffree, 472
U.S. 38, 70 (1985) (O'Connor, J., concurring)).
7
Allegheny, 492 U.S. at 595 (quoting Lynch, 465 U.S. at 692
(O’Connor, J., concurring)).
8
See Capitol Square Review and Advisory Bd. v. Pinette, 515
U.S. 753, 779-780 (1995) (O’Connor, J., concurring in part and
concurring in judgment) (“[B]ecause our concern is with the
political community writ large, the endorsement inquiry is not
about the perceptions of particular individuals or saving isolated
nonadherents from . . . discomfort. . . . It is for this reason
that the reasonable observer in the endorsement inquiry must be
deemed aware of the history and context of the community and forum
7
The guiding principle is government neutrality toward religion
in the sense that a state cannot favor religion over non-religion
or one religion over another. Yet neutrality is not self-defining.
It does not demand that the state be blind to the pervasive
presence of strongly held views about religion with myriad faiths
and doctrines. Nor could it do so. Religion and government cannot
be ruthlessly separated without encountering other First Amendment
constraints, including its guaranty of the free exercise of
religion. Such hostility toward religion is not only not required;
it is proscribed.9 Justice Kennedy’s observation in Allegheny
bears emphasis: it is not the case that the Establishment Clause is
so inelastic as to not “permit government some latitude in
recognizing and accommodating the central role religion plays in
our society.”10 It is equally important to remember Justice
Goldberg’s famous observation:
Neither government nor this Court can or should ignore
the significance of the fact that a vast portion of our
people believe in and worship God and that many of our
legal, political and personal values derive historically
from religious teachings. Government must inevitably
take cognizance of the existence of religion. . . .11
in which the religious [speech takes place].”); Good News Club v.
Milford Cent. Sch., 533 U.S. 98, 119 (2001).
9
See Lynch, 465 U.S. at 673.
10
Allegheny, 492 U.S. at 657 (Kennedy, J., concurring in part
and dissenting in part).
11
School Dist. of Abington Township v. Schempp, 374 U.S. 203,
306 (1962) (Goldberg, J., concurring).
8
In sum, we recognize that proper application of First
Amendment principles demands a sense of proportion and that our
inquiry is fact-sensitive. Ultimately, we have the delicate task
of placing this display of the decalogue in its full setting. We
turn to that task, asking first if the Texas Legislature had a
valid secular purpose for authorizing the installation of the
monument. We will then examine whether the activity’s primary
effect advances or inhibits religion.
IV
A
The district court found that the purpose of the legislature
was “to recognize and commend a private organization for its
efforts to reduce juvenile delinquency.” It gleaned this purpose
from the reason stated in the Resolution granting the Eagles
permission to erect the monument. The plaintiff concedes that this
recited purpose is a valid secular purpose, but contends that it
was not the true purpose. Rather, he argues that monuments “are
not erected to honor donors and they are not erected to pay tribute
[to] their acts of donation. They are erected to pay tribute to
and honor the subject or ideal depicted.”
The Legislature, of course, cannot dictate the finding of
secular purpose by a bland recitation. The finding of the district
court here, however, rests on two powerful realities. First, there
is nothing in either the legislative record or the events attending
the monument’s installation to contradict the secular reasons laid
9
out in the legislative record, brief as it is; there is nothing to
suggest that the Legislature did not share the concern about
juvenile delinquency.12 Second, Texas has a record of honoring the
contributions of donors and those they represent, contrary to
plaintiff’s unsupported argument. For example, ten years before
its resolution accepting the Ten Commandments monument, the
Legislature authorized the Boy Scouts of America to install a
replica of the Statue of Liberty. The Legislature stated that it
did so “in honor of the Boy Scouts of America.” The resolution’s
preamble explained that “nothing has been done to honor the youth
of Texas who are members of the Boy Scouts.” Whether or not this
legislative history would support a finding that the Legislature
acted with only a secular purpose, the record supports the finding
of the district court that the Texas Legislature had a valid
secular purpose in authorizing the placement of the Ten
Commandments monument. There is nothing to suggest that the
recited reason was a sham, and the State’s treatment of other
monuments on the Capitol grounds belies any such suggestion.
Without more, then, the recited legislative purpose should be
accepted.13
12
For an example of the decalogue’s installation coupled with
religious ceremony, see Books v. City of Elkhart, Indiana, 235 F.3d
292, 306 (7th Cir. 2000), cert. denied, 532 U.S. 1058 (2001).
13
Wallace, 472 U.S. at 74-75; see also Mueller v. Allen, 463
U.S. 388, 394-395 (1983) (expressing “reluctance to attribute
unconstitutional motives to the states, particularly when a
plausible secular purpose for the state’s program may be discerned
10
The plaintiff here argues that there is more. It can hardly
be gainsaid, he contends, that in honoring the work of the Eagles
in curbing juvenile misconduct by its resolution, the Texas
Legislature endorsed the decalogue as a common code of conduct and
implicitly promoted its religious message. This is half right.
The plaintiff’s contention here forgets that the Commandments have
a secular dimension as well as a religious meaning. The plaintiff
presumes both that its use by the Eagles was religious and that
authorizing the installation of the monument itself endorsed that
religious message.
The plaintiff’s argument rests heavily upon the decision of
the Seventh Circuit in Books v. City of Elkhart, Indiana.14 In
Books, there was evidence, found significant by the majority of its
panel, that the purpose of the City of Elkhart was to promote the
decalogue as a religious statement. The court found the City’s
statement of secular purpose suspect because it was adopted on the
eve of litigation in an effort to escape scrutiny under the First
Amendment. The Texas Resolution came in 1961 and was supported by
statements honoring the efforts of the donor. Unlike Books, there
was no religious service attending the acceptance of the monument
in Texas. The record shows that only two state legislators
attended. There is no evidence of any religious invocations or
from the face of the statute.”).
14
235 F.3d 292, 306 (7th Cir. 2000), cert. denied, 532 U.S.
1058 (2001).
11
that any minister, rabbi, or priest were even present. Nor is the
context in which the Commandments is displayed here similar to the
display in Books.15 We are not persuaded that the Resolution of the
Texas Legislature in 1961 was a sham.
B
Our conclusion that the legislative authorization was
supported by a valid secular purpose is reinforced by the related
but distinct inquiry whether the primary effect of the display
advances or inhibits religion as seen from the eyes of a reasonable
observer, informed and aware of his surroundings.
The Ten Commandments have both a religious and secular
message. Given this duality, our effects inquiry must focus on
the specific facts and context of the display. As Justice Blackmun
explained in Allegheny:
[T]he effect of the display depends upon the message that
the government’s practice communicates: the question is
“what viewers may fairly understand to be the purpose of
the display.” That inquiry, of necessity, turns upon the
context in which the contested object appears: “[A]
typical museum setting, though not neutralizing the
religious content of a religious painting, negates any
message of endorsement of that content.”16
15
As we discuss in greater detail below, the context in which
the Ten Commandments is displayed on the Capitol grounds is
different from that at issue in Books, and this unique context
negates any sense that the state is endorsing or promoting the
decalogue’s religious, as opposed to its secular, aspects.
16
Allegheny, 492 U.S. at 595 (citing Lynch v. Donnelly, 465
U.S. at 687 (O’Connor, J., concurring, embracing Justice O’Connor’s
concurring opinion in Lynch)).
12
Returning to our earlier description of the Capitol, we note
first that the grounds are designated as a National Historic
Landmark that is dedicated to the display of “statues, memorials,
and commemorations of people, ideals and events that compose Texan
identity; these displays document the struggles and the successes
that Texans have experienced in the past and serve to inspire us as
we face the challenges of today.”17 The State points to the replica
of the Seal of Mexico displayed on the tour path of the Capitol,
reminding that it “acknowledges the mystical traditions of the
indigenous people of the Southwest, who were displaced by a
religious Catholic regime for some 300 years.”
Relatedly, the State suggests that the decalogue in Texas is
displayed in a museum setting. The State points out that the
Curator of the Capitol is a professional museum curator, with an
advanced degree in museum science and the Texas State Preservation
Board qualifies as a museum as defined by federal statute.18 The
State Preservation Board, created in 1983, is an agency of the
State of Texas and has broad authority over the Capitol Building
17
See H. Con. Res. 38, 77th Leg., R.S. (2001).
18
“Museum means a public or private nonprofit agency or
institution organized on a permanent basis for essentially
educational or aesthetic purposes that utilizes a professional
staff, owns or utilizes tangible objects, cares for the tangible
objects, and exhibits the tangible objects to the public on a
regular basis.” 20 U.S.C. § 9172 (2003).
13
and grounds.19 It employs, among others, three professional
curators with graduate degrees in history and museum science. They
maintain the historic artifacts of the Capitol Collection,
including an art collection with an estimated value of twenty to
thirty million dollars. This department oversees the monuments and
offers educational programs and brochures, including guided tours
of the Capitol Building.
We need not accept the State’s museum analogy in full measure
to acknowledge that, while short of the museum envisioned by
Justice O’Connor, a setting which would wholly negate endorsement,
the manner in which the seventeen monuments are presented on the
grounds portion of the Capitol tour supports the conclusion that a
reasonable viewer would not see this display either as a State
endorsement of the Commandment’s religious message or as excluding
those who would not subscribe to its religious statements.20
19
TEX. GOV’T CODE ANN. §§ 443.001-443.028 (Vernon 1998 & Supp.
2004).
20
A visitor to the Capitol would receive a brochure including
“A Self-Guided Tour” with a map showing the location of the
seventeen monuments. It includes a brief description of each
monument, starting with Hood’s Texas Brigade, which “was erected in
1910 by surviving comrades and friends.” Similar paragraphs follow
for each monument. Number 9 reads: “THE TEN COMMANDMENTS–Erected
1961 by the Fraternal Order of Eagles of Texas. Hewn from Texas
granite in the traditional shape of the biblical stones and
inscribed with the Ten Commandments, the monument was presented to
the people and youth of Texas.”
14
Even those who would see the decalogue as wise counsel born of
man’s experience rather than as divinely inspired religious
teaching cannot deny its influence upon the civil and criminal laws
of this country. That extraordinary influence has been repeatedly
acknowledged by the Supreme Court and detailed by scholars.
Equally so is its influence upon ethics and the ideal of a just
society. A reasonable viewer must also be aware of the placement
of the monument at a point on the direct line between the
legislative chambers, the executive office of the governor, and the
Supreme Court Building. It is plainly linked with those houses of
the law while standing apart and not physically connected to any of
them. The decalogue is presented as relevant to these law-giving
instruments of State government, but from a distance.
In 1993, the State Preservation Board had to decide where to
locate the monument following a Capitol construction project that
had required the removal of many monuments. The Board’s executive
director, in uncontroverted testimony at trial, explained that the
decalogue’s location was carefully chosen by the Board’s
professional staff to reflect the role of the Commandments in the
making of law. The only change in where the monument had been
located since 1961 was to turn it to face a different direction.
The professional judgment of these trained museum curators, made
ten years before any litigation, is relevant to our question of
effect, as well as to our acceptance of the State’s secular purpose
in displaying the Commandments. But even if the evidence of the
15
efforts in 1993 were disregarded, it would not diminish the
explanatory power of the location where the monument was placed in
1961 and has since resided.
V
History matters here. For forty-two years, the monument has
stood in Austin without the filing of any legal complaint. This
quiescence is remarkable for Travis County, the seat of state
government and the home of the University of Texas, whose campus is
a stone’s throw away from the Capitol grounds. This Court is well
aware that Travis County is not lacking in persons willing and able
to seek judicial relief from perceived interferences with
constitutional rights.21 Had this monument been recently installed,
the inference of religious purpose would have been stronger. That
it has been in place for so long adds force to the contention that
the legislature had a secular purpose. As Judge Becker observed:
The reasonable observer would perceive an historic plaque
as less of an endorsement of religion than a more recent
religious display not because the Ten Commandments have
lost their religious significance, but because the
maintenance of this plaque sends a much different message
about the religious views of the County. . . . The
reasonable observer, knowing the age of the . . . plaque,
would regard the decision to leave it in place as
21
See e.g. O’Hair v. Murray, 588 F.2d 1144 (5th Cir. 1979)
(addressing a constitutional challenge to the motto “In God We
Trust”); Murray v. City of Austin, Texas, 947 F.2d 147 (5th. Cir
1991) (examining a claim that the inclusion of a Christian cross in
the insignia of the City of Austin violated the Establishment and
Free Exercise Clauses).
16
motivated, in significant part, by the desire to preserve
a longstanding plaque.22
In sum, we are persuaded that Texas does not violate the First
Amendment by retaining a forty-two-year-old display of the
decalogue. The Ten Commandments monument is part of a display of
seventeen monuments, all located on grounds registered as a
historical landmark, and it is carefully located between the
Supreme Court Building and the Capitol Building housing the
legislative and executive branches of government. We are not
persuaded that a reasonable viewer touring the Capitol and its
grounds, informed of its history and its placement, would conclude
that the State is endorsing the religious rather than the secular
message of the decalogue.
To say this is not to diminish the reality that it is a sacred
text to many, for it is also a powerful teacher of ethics, of wise
counsel urging a regiment of just governance among free people.
The power of that counsel is evidenced by its expression in the
civil and criminal laws of the free world. No judicial decree can
erase that history and its continuing influence on our laws – there
is no escape from its secular and religious character. There is no
constitutional right to be free of government endorsement of its
own laws. Certainly, we disserve no constitutional principle by
concluding that a State’s display of the decalogue in a manner that
22
Freethought Soc. of Greater Philadelphia v. Chester County,
334 F.3d 247, 265 (3rd Cir. 2003).
17
honors its secular strength is not inevitably an impermissible
endorsement of its religious message in the eyes of our reasonable
observer. To say otherwise retreats from the objective test of an
informed person to the heckler’s veto of the unreasonable or ill-
informed - replacing the sense of proportion and fit with
uncompromising rigidity at a costly price to the values of the
First Amendment. A display of Moses with the Ten Commandments such
as the one located in the United States Supreme Court building
makes a plain statement about the decalogue’s divine origin. Yet
in context even that message does not drown its secular message.
So it is here.
AFFIRMED.
18