Van Orden v. Perry

Following is the case brief for Van Orden v. Perry, 545 U.S. 677 (2005)

Case Summary of Van Orden v. Perry:

  • Thomas Van Orden sued the State of Texas in federal court, claiming that a monument of the Ten Commandments sitting on the grounds of the State capitol building violated the First Amendment’s Establishment Clause.
  • Both the federal district court and the Fifth Circuit Court of Appeals held that the monument did not violate the First Amendment.
  • Those courts found that the monument had a valid secular purpose and that a reasonable observer would not conclude that it was a State endorsement of one religion.
  • A plurality of the U.S. Supreme Court affirmed the lower courts’ decision, holding that the monument has both religious and government significance and is not so extreme as to violate the First Amendment’s Establishment Clause.

Van Orden v. Perry Case Brief

Statement of the Facts:

The land around the Texas State Capitol has many monuments and historical markers, including a six-foot Ten Commandments monument.  That particular Ten Commandments monument has been on the grounds for 40 years.

Thomas Van Orden frequently visited the Texas State Capitol grounds on his way to the law library in the Texas Supreme Court building.  After a few years, he filed sued in federal district court to have the statute removed, claiming that the Ten Commandments monument violated the Establishment Clause of the First Amendment.

Procedural History:

  • The federal district court denied Van Orden his requested relief, finding that the monument had a valid secular purpose, which was to acknowledge a civil organization’s efforts to reduce juvenile delinquency. It also found that a reasonable person, knowing the history, purpose, and context of the monument, would not believe that the State was endorsing religion.
  • The Fifth Circuit Court of Appeals affirmed the district court’s holdings.
  • The U.S. Supreme Court granted certiorari.

Issue and Holding:

Does a Ten Commandments monument on State grounds, that has been there for 40 years with no complaints, violate the Establishment Clause of the First Amendment?  No.


The decision of the Fifth Circuit Court of Appeals is affirmed.

Rule of Law or Legal Principle Applied:

The Establishment Clause tolerates some religious symbols in and around government property, provided the display does not have an improper and plainly religious purpose.


Four justices of the Court followed Chief Justice Rehnquist’s opinion, which stated as follows.

The Ten Commandments in the Nation’s heritage is common, it is depicted in the courtroom of the Supreme Court, in the Capitol rotunda, and inside the Department of Justice.  So, even though the Ten Commandments are religious, that does not necessarily mean it constitutes an endorsement of religion.

There are limits to a government’s display of religious symbols.  In Stone v. Graham, 449 U.S. 39 (1980), the Court struck down a statute requiring that the Ten Commandments be posted in every public school classroom.  Here, however, the display of the monument is more passive and does not force elementary school students to confront the Ten Commandments every day as in Stone.  Even Van Orden walked past the monument for a number of years before filing suit.

Accordingly, the monument has dual significance, involving both religious and government purposes, and does not violate the Establishment Clause.

Concurring and Dissenting Opinions:

Concurring Opinion (Breyer):

This is a borderline Establishment Clause case, and the Court’s jurisprudence on the Establishment Clause cannot be reduced to a formula.  Justices must exercise their legal judgment in determining when something crosses over into the establishment of religion.

Here, the Ten Commandments monument has a religious message.  But, it also has a secular moral message, and a message about the historic relation between those moral standards and the law.  What is most important is the context.  40 years have passed with no legal challenge to the monument’s existence.  Accordingly, the mix of messages in the monument means that the display falls on the permissible side of the Establishment Clause.

Concurring Opinion (Scalia):

There should be an Establishment Clause test that can be consistently applied, namely that there is nothing unconstitutional about a State favoring religion, or a particular religion.

Concurring Opinion (Thomas):

The First Amendment should not be incorporated to the States, and thus a State is free to endorse any religion it so wishes.  And the “original meaning” of the term “establishment” involves legal coercion.  Thus, even with incorporation, the monument does not violate the Establishment Clause.

Dissenting Opinion (Souter):

The Establishment Clause requires neutrality as a general rule.  The Ten Commandments – which are literally understood as commandments from God himself – are clearly a religious message of one particular religion.  In this case, there is no other purpose other than conveying its religious message.  Therefore, a government display of that religious text is not neutral towards religion.  The plurality’s attempt to distinguish Stone and other cases is not persuasive.

Dissenting Opinion (Stevens):

The monument on State property indicates that the State endorses a Judeo-Christian God.  The secular purpose of honoring an organization that helps with juvenile delinquency could be done through secular means.  Because the Framers had differing views on the separation of church and state, the text of the Establishment Clause should be our guide.  The plurality’s judgment that the Constitution permits government displays of sacred religious texts makes a mockery of the neutrality required by the Establishment Clause.

Dissenting Opinion (O’Connor):

Justice O’Connor agrees with Justice Souter’s dissent and cites to her own concurring opinion in McCreary County v. American Civil Liberties Union of Ky.


Van Orden v. Perry is significant case because of the lack of clarity in the plurality’s opinion.  The wavering, unclear reasoning seems to indicate the wavering and unclear understanding our country has for the notion of separation of church and state.  By contrast, Justice Steven’s dissent notes a clear rule of neutrality, which used to guide the Court in cases such as Abington Tp. v. Schempp, 374 U.S. 203 (1963).

Student Resources:

Read the Full Court Opinion

Listen to the Oral Arguments