Van Orden v. Perry

Notable Items:

Issue(s) Before the Court:

Plaintiff / Appellant / Petitioner's Claim(s):

Defendant / Appellee / Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• A full recounting of the facts is available below

Procedural History:

• Petitioner brought this 42 U. S. C. §1983 suit seeking a declaration that the monument’s placement violates the First Amendment’s Establishment Clause and an injunction requiring its removal.
• The District Court held that the monument did not contravene the Establishment of Religion Clause; the State had a valid secular purpose; and that a reasonable observer would not conclude that this passive monument conveyed the message that the State endorsed religion.
• The Fifth Circuit affirmed.

Rationale

Rehnquist Majority Opinion (Scalia, Kennedy, Thomas)

• A full description of the rationale is available below

Scalia Concurrance (??)

Thomas Concurrance (??)

Breyer Concurring in Judgement (??)

• [First Amendment’s Religion Clauses] seek to “assure the fullest possible scope of religious liberty and tolerance for all.” School Dist. of Abington Township v. Schempp (1963)
• the Court has found no single mechanical formula that can accurately draw the constitutional line in every case. Schempp
• government must “neither engage in nor compel religious practices,” Schempp
• “untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.” Schempp
• ... 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.
• The circumstances surrounding the display’s placement on the capitol grounds and its physical setting suggest that the State itself intended the latter [a secular message as well], nonreligious aspects of the tablets’ message to predominate.
• And the monument’s 40-year history on the Texas state grounds indicates that that has been its effect.

Stevens Dissent (Ginsburg)

O'Connor Dissent (none)

• 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.

Souter Dissent (Stevens, Ginsberg)

• ... the Establishment Clause requires neutrality as a general rule ....
• 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.
• ... 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.
• ... difficult to miss the point that the government of Texas is telling everyone who sees the monument to live up to a moral code because God requires it ....
• ... the State’s museum argument does nothing to blunt the religious message and manifestly religious purpose behind it ...
• ... plurality claims to find authority for limiting Stone’s [v. Graham] reach this way in the opinion’s citations of two school-prayer cases ...
• ... mere posting of the [Commandments] under the auspices of the legislature provides the official support of the State Government that the Establishment Clause prohibits” [Stone]
• Placing a monument on the ground is not more “passive” than hanging a sheet of paper on a wall when both contain the same text ....
• I agree that the crčche displayed on the Grand Staircase of the Allegheny County Courthouse, the seat of county government, conveys a message to nonadherents of Christianity that they are not full members of the political community … . County of Allegheny, 492 U. S., at 626 (O’Connor, J., concurring in part and concurring in judgment)

Full Recounting of Facts

• A list of the material facts is available above

Majority Full Argument

• ... we think it [Lemon Test] not useful in dealing with the sort of passive monument that Texas has erected ....
• Instead, our analysis is driven both by the nature of the monument and by our Nation’s history.
• ... [we] hold that the Establishment Clause permits a state legislature to open its daily sessions with a prayer by a chaplain paid by the State.
• 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)
• And the Ten 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. [promoting religious content not establishment?]
• The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government.
• We cannot say that Texas’ display of this monument violates the Establishment Clause of the First Amendment.
• The core of the rationale is available above