Van Orden v. Perry
The Supreme Court allowed a Ten Commandments monument to remain on the grounds of the Texas State Capitol, ruling that its long history and its place among dozens of other historical markers meant it did not amount to a government endorsement of religion.
The 5-4 decision, with no single opinion commanding a majority rationale, means outdoor displays with a mix of historical and religious content can survive Establishment Clause challenges, even as the Court left open how it would treat newer or more overtly religious displays.
“Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.”
The plurality's core reasoning for why religious content alone does not make a display unconstitutional.
How it got here: A federal trial court ruled for the State after a bench trial; the Fifth Circuit affirmed; the Supreme Court agreed to hear Van Orden's appeal.
The Case in Depth
What happened
A six-foot Ten Commandments monument, donated by the Fraternal Order of Eagles in 1961 to help combat juvenile delinquency, sits among 17 monuments and 21 historical markers on the Texas Capitol grounds. Thomas Van Orden, an Austin resident who passed the monument on his way to the state law library, sued Texas officials, arguing the display's presence violated the separation of church and state.
The question before the Court
Could Texas keep a six-foot granite monument of the Ten Commandments among the statues and markers on its state capitol grounds?
The Court's answer
Yes — the Court ruled that Texas could keep the Ten Commandments monument on its capitol grounds. A four-justice plurality reasoned that the monument's religious content alone did not make it unconstitutional, pointing to the country's long history of official acknowledgments of religion and distinguishing this passive outdoor display from mandatory postings in school classrooms, which the Court had struck down decades earlier.
Justice Breyer supplied the decisive fifth vote but wrote separately, refusing to apply any fixed legal test. He stressed that the monument conveyed a mixed religious and secular message, was placed among dozens of other historical markers, and had stood for 40 years without legal objection — facts that, in his judgment, made it unlikely to provoke the kind of religious divisiveness the Establishment Clause aims to prevent.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Cities, states, and courthouses across the country display similar Ten Commandments monuments; this ruling means many of them can stay in place without violating the Constitution. But because the Court split badly on its reasoning, lower courts have less clear guidance for evaluating other religious displays, and similar disputes are likely to keep surfacing case by case.
What changes now
The judgment affirming the monument's permissibility is final, so the Fifth Circuit's ruling for Texas stands and the monument remains on the capitol grounds. Because no opinion commanded a majority rationale, lower courts must continue deciding future Ten Commandments and religious-display cases without a single controlling test, weighing factors like context, age of the display, and evidence of religious purpose on a case-by-case basis.
What this does not decide
The Court did not adopt a single test for all religious displays, and Justice Breyer's decisive opinion stressed this was a "borderline case" decided on its specific facts, especially the display's 40-year history without challenge. The ruling does not mean all Ten Commandments displays, including newer ones or those in schools, are constitutional.
Concurrences and dissents
Concurrence — Justice Scalia
Justice Scalia joined the plurality opinion but said he would prefer a clearer rule: that nothing in the Constitution bars a state from favoring religion generally, honoring God through public prayer, or venerating the Ten Commandments in a nonproselytizing way.
Concurrence — Justice Thomas
Justice Thomas joined the plurality in full but argued the Court should return to the original meaning of the Establishment Clause, which he says required actual legal coercion to violate, not mere acknowledgment or offense. He also questioned whether the Clause even applies to the states at all.
Concurrence — Justice Breyer
Justice Breyer supplied the decisive fifth vote but rejected the plurality's reasoning, saying no formula could resolve this fact-intensive, borderline case. He found the monument's mixed secular-religious purpose and, above all, its 40 years without legal challenge showed it was unlikely to cause religious divisiveness.
Dissent — Justice Stevens
Justice Stevens argued the monument's sole function is to proclaim a religious message -- that Texans should obey a Judeo-Christian God -- and that this amounts to an unconstitutional government endorsement of one religious viewpoint over others, including nonbelievers.
Dissent — Justice O'Connor
Justice O'Connor dissented for the reasons given in Justice Souter's dissent and her own concurrence in the companion McCreary County case, without writing extensively of her own.
Dissent — Justice Souter
Justice Souter argued the monument's text, religious symbols, and prominent placement at the seat of government unmistakably convey a religious endorsement, not a secular historical message, and that the 40-year absence of a lawsuit says nothing about whether the display is constitutional.
How the Court got there
The legal reasoning, step by step
- The plurality opinion found that the standard three-part test from Lemon v. Kurtzman -- asking whether a law has a secular purpose, has a primary effect that neither advances nor inhibits religion, and avoids excessive government entanglement with religion -- was not useful for judging a passive, long-standing monument like this one.
- Instead, the plurality looked to the Nation's history of official acknowledgments of religion, from Thanksgiving proclamations to religious imagery on the Supreme Court building itself, concluding that displaying religious content alone does not violate the Establishment Clause.
- The plurality distinguished this case from Stone v. Graham, where the Court struck down mandatory Ten Commandments postings in public school classrooms, reasoning that a passive outdoor monument confronting adults who choose to walk by is different from a display that confronts young students daily.
- Justice Breyer, providing the decisive fifth vote, rejected any single formal test and instead exercised case-specific legal judgment, weighing the monument's mixed religious and secular message, its context among other historical markers, and especially the fact that it went unchallenged for 40 years as evidence it was unlikely to provoke religious divisiveness.
- Because a majority could not agree on the Ten Commandments' placement being predominantly secular under a shared legal rationale, the plurality and concurrence separately concluded the display fell on the permissible side of the constitutional line.
Doctrinal impact
Cases affected by this decision
Distinguishes Stone v. Graham (449 U. S. 39)
The Court said its ban on Ten Commandments postings in school classrooms does not extend to passive capitol grounds displays.