Ten Commandments

Van Orden, Thomas v. Perry, Rick (Texas Gov.)
Docket: 03-1500

Term: 04-05

Appealed From: 5th Circuit Court of Appeals (Nov. 12, 2003)

Oral Argument: March 2, 2005


Questions presented: Whether a large monument, 6 feet high and 3 feet wide, presenting the Ten Commandments, located on government property between the Texas State Capitol and the Texas Supreme Court, is an impermissible establishment of religion in violation of the 1st Amendment?

On March 10, 1961, then Texas Governor Price Daniel signed a joint resolution to accept a gift from the Fraternal Order of Eagles.

The Eagles, a national organization more than a century old, promotes morality to help curb juvenile delinquency in cities across the United States. It pays all installation and maintenance expenses to give monuments shaped like traditional biblical stones an engraved version of the Ten Commandments.

Texas received a "sunset red" granite monolith that stands more than six feet high and three feet wide. Above the writing, there is Hebrew script, an American flag, an eagle and a human eye inside a pyramid. Under it, there are two stars of David and a symbol representing Jesus Christ. A scroll-shaped box dedicates the Decalogue to the people and youth of Texas on behalf of the Eagles.

Other than the title "the Ten Commandments," one line reads larger than all the rest: "I AM the LORD thy GOD."

The Decalogue monument adorns the Texas State Capitol grounds in Austin, also home to the state's Supreme Court and Capitol buildings. It was placed 75 feet from the north side of the Capitol Building and 123 feet from the Supreme Court Building.

The State Board of Control, now called the State Preservation Board, chose the original location for the Decalogue display. The board, which hires professional museum curators, is responsible for the maintenance and upkeep of the 22-acre Capitol grounds.

State legislators have worked for more than a century among portraits, plaques and monuments dedicated to preserving the history of the Lone Star State. The first monument was donated in 1891, and the grounds currently boast 17.

The first nine monuments on the self-guided tour pay tribute to confederate soldiers, Texas law enforcement, disabled veterans, Texans in the Korean War, World War I and Pearl Harbor, the Statue of Liberty, pioneer women of early Texas, and Texas youth. The Decalogue is the tenth monument, standing in the northwest section of the grounds. The last seven honor the Texas National Guard, the Spanish-American War, cowboys, Texas Rangers, the Alamo, volunteer firemen, and again, Confederate soldiers.

Almost three decades after it was installed, the Decalogue monolith was removed for a Capitol restoration project. When re-installed in 1993, the only change was that the monument now faced the southwest where a sidewalk had been paved.

Former criminal defense lawyer and lifelong Texas resident Thomas Van Orden has used the new sidewalk frequently for the past decade on his way to the Texas State Law Library in the Supreme Court building.

Van Orden is a self-described atheist who does not acknowledge the existence of any God. He wants the monument declared unconstitutional and removed from the grounds of the Capitol.

In December 2001, Van Orden filed suit on his own behalf in the U.S. District Court for the Western District of Texas. He represented himself and the suit listed the executive director of the State Preservation Board, Rick Crawford, and its six other members as defendants. Van Orden claimed that, under the board's watch, an illegal display has remained on government grounds for more than 40 years.

In order to prevail, Van Orden had to show that he personally suffered an actual or threatened injury due to the monument's placement. He argued that he finds frequent contact with the Ten Commandments unwelcome and offensive.

While he conceded that six of the commandments can be read as a secular moral code - for example, "Thou shall not steal" - Van Orden claims the other four are distinctly Judeo-Christian, like respecting the Sabbath and worshipping no other god, and specifically, "Thou shalt have no other Gods before me."

Building from his belief that Texas accepted the monument to endorse all ten of the commandments as a personal code of conduct for youth, Van Orden said Texas' government crossed the constitutional line separating church and state, in violation of the 1st Amendment's Establishment Clause.

Van Orden claimed in district court that the Ten Commandments monument sends "a clear message that, politically, there are ins and outs in Texas based on personal religious beliefs."

The state disagreed. While acknowledging that the Ten Commandments are religious, the state said the monument's purpose is not. Its simple presentation and location celebrate a secular, or non-religious, version of a moral code that greatly influenced Western law. When viewed in context with the other monuments, the state said, the Ten Commandments display is part of a national landmark celebrating Texas that includes references to God and Aztec prophets.

Additionally, the state claimed the monument requires almost no maintenance, was paid for entirely by the Eagles organization, and was selected for placement by professional curators. The monument's location close to the statues of six children on a field trip to the Capitol expresses appreciation for the Eagles' work with troubled youth.

In October 2002, U.S. District Judge Harry Lee Hudspeth ruled against Van Orden.

Hudspeth applied the three-pronged test established by the 1971 U.S. Supreme Court decision in Lemon v. Kurtzman. Used to resolve claims of Establishment Clause violations, the challenged state action has to survive each prong to pass constitutional muster.

The first prong asks whether the monument has a secular purpose. In finding that it did, the district court referred to the 1961 resolution signed by Gov. Daniel, in which the Eagles were given permission to erect a monument "to recognize and commend a private organization for its efforts to reduce juvenile delinquency."

"Senate concurrent resolution number 16, which formally accepted the Ten Commandments monument from the Fraternal Order of Eagles, makes no reference to religion," Hudspeth wrote. "The plaintiff has produced no convincing evidence that the stated purpose was a sham. The court finds that a bona fide and valid secular purpose has been shown."

The second prong questions whether the monument's primary effect promotes or inhibits religion. The prong prompted the court to view the monolith within the context of all 17 monuments displayed on the Texas State Capitol grounds.

The district court noted that the monument has been in place for more than 40 years without any legal complaints and that Van Orden also waited six years to file suit. In light of its historical context, the district court ruled that no evidence proves it necessary to remove the monument from the Capitol grounds.

"Neither the location nor the physical characteristics of the Ten Commandments monument would lead a reasonable observer to conclude that the state is seeking to advance, endorse or promote religion by permitting the display," Hudspeth wrote.

As for the third prong, which asks whether the monument leads to excessive government entanglement with religion, Van Orden conceded it doesn't.

In the 5th Circuit Court of Appeals, Van Orden argued that the evidence did not support the district court ruling that the monument had a secular purpose. For its part, the state suggested that the Decalogue is displayed in a museum setting whose educational purpose trumps any religious endorsement claim.

On Nov. 12, 2003, a unanimous three-judge panel affirmed, concluding that no judicial ruling could erase the history of the Ten Commandments in Western law.

"Even those who would see the Decalogue as wise counsel born of man's experience rather than divinely inspired religious teaching cannot deny its influence upon the civil and criminal laws of this country," Judge Patrick Higginbotham wrote.

The 5th Circuit also applied the Lemon v. Kurtzman test and disagreed with Van Orden's claim that the state is masking religious intent with a secular purpose.

"There is nothing in either legislative record or the events attending the monument's installation to contradict the secular reasons," Higginbotham wrote. "There is nothing to suggest that the Legislature did not share the concern about juvenile delinquency."

While the court rejected the state's museum context, it did rule that the 17 monuments are presented on the Capitol grounds in such a fashion that a reasonable viewer would see the Ten Commandments in a historical context.

"Certainly we disserve no constitutional principle by concluding that a State's display of the Decalogue in a manner that honors its secular strength is not inevitably an impermissible endorsement of its religious message in the eyes of our reasonable viewer," Higginbotham wrote. "A reasonable viewer must be aware of the placement of the monument… It is plainly linked with the law while standing apart...The Decalogue is presented as relevant to these law-giving instruments of State government, but from a distance."

The 5th Circuit's decision, however, was not made on a clean slate. Other circuits are wrestling with similar cases concerning the Eagles monuments and the rulings are far from unanimous. In 1976 the 10th Circuit ruled to let its Decalogue monolith stand. The 7th Circuit, on the other hand, ruled in 2000 that the same monument had to be removed from the lawn of a municipal building in Elkhart, Indiana.

After unsuccessfully trying to get his case reheard in the 5th Circuit, Van Orden appealed to the U.S. Supreme Court. He also decided to hand his case over to Erwin Chemerinsky, a law professor at Duke University.

McCreary County, KY, et al. v. ACLU of KY, et al.
Docket: 03-1693

Term: 04-05

Appealed From: 6th Circuit Court of Appeals (Dec. 18, 2003)

Oral Argument: March 2, 2005


Questions presented: (1) Whether the Establishment Clause is violated by a privately-donated display on government property that includes eleven equal-size frames containing an explanation of the display along with nine historical documents and symbols that played a role in the development of American law and government where only one of the framed documents is the Ten Commandments and the remaining documents and symbols are secular? (2) Whether a prior display by the government in a courthouse containing the Ten Commandments that was enjoined by a court permanently taints and thereby precludes any future display by the same government when the subsequent display articulates a secular purpose and where the Ten Commandments is a minority among numerous other secular historical documents and symbols? (3) Whether the Lemon test should be overruled since the test is unworkable and has fostered excessive confusion in Establishment Clause jurisprudence? (4) Whether a new test for Establishment Clause purposes should be set forth by this Court when the government displays or recognizes historical expressions of religion?


When Judge Executive Jimmie Greene signed an order accepting a privately-donated frame displaying the Ten Commandments and put it in the hallway of the courthouse in McCreary County, KY, he didn't think he was violating the U.S. Constitution.

Neither did Darrell Beshears, the Judge Executive in Pulaski County, KY, or the school board in Harlan County, Kentucky, that also posted framed copies of the Ten Commandments in their lobbies.

But on Nov. 18, 1999, seven people in McCreary, Harlan and Pulaski counties along with the ACLU of Kentucky filed three separate lawsuits in U.S. District Court, saying the display was in violation of the Establishment Clause of the 1st Amendment.

They asked for a preliminary injunction to prohibit the displays. Soon after the complaint was filed, the courthouses and school district modified the displays to include other historical and legal documents, such as the Declaration of Independence, the Magna Carta and the Bill of Rights, among others. Nonetheless, the court issued a preliminary injunction, ordering that the displays be removed.

The courthouses modified the displays once again, this time including a framed explanation entitled, "Foundations of American Law and Government Display." The School Board displays added a School Board Resolution explaining the documents' significance.

When the new displays were erected, the plaintiffs in the case moved to hold the defendants in contempt for violating the injunction. The defendants argued that the new displays were not similar to the ones that were enjoined, and said, "the purpose for the display is to educate citizens of the country regarding some of the documents that played a significant role in the foundation of our system of law and government."

Mathew Staver, who represents the Kentucky counties and school district, said the displays aren't about religion, but rather the history of American law.

"One of the eleven frames deals with the discussion of foundations of law. It describes a number of documents that influenced American law," he said. "There's no question the Ten Commandments influenced American law."

On March 30, 2001, the district court denied the plaintiff's motion to hold the counties in contempt, but urged the parties to settle the matter by April 30, or the court would rule on the injunction.

When the two sides couldn't reach a settlement, District Judge Jennifer Coffman granted the motion for a preliminary injunction on June 22, 2001. In her ruling, she said the display "showed strong likelihood of succeeding to prove that the displays violated the Establishment Clause of the First Amendment."

The Establishment Clause of the 1st Amendment states, "Congress shall make no law respecting an establishment of religion."

In its decision, the district court referred to the Lemon test the U.S. Supreme Court used in 1971 in Lemon v. Kurtzman. Since then, the test has been used in nearly every applicable case to determine if a particular government action violates the Establishment Clause.

As originally formulated, the Lemon test asked courts to consider three separate factors, or prongs, to determine the government's possible violation. The court must determine: (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.

A divided 6th Circuit Court of Appeals panel affirmed. Writing for the majority, Judge Eric Clay said that although a display of the Ten Commandments is not always prohibited, the display of the Ten Commandments that is represented to be historical in nature must present the display objectively and integrate them with a secular message or it will be in violation of the first prong of the Lemon test.

Judge Clay pointed to the School Board Resolution in which the Board articulated its "belief" and "opinion" that the documents, including the Ten Commandments, have educational and moral value, as well as historical significance.

For that reason, he found the Resolution did not integrate the Ten Commandments with an objective discussion of a secular subject matter. Instead, he said, the Resolution asserts an opinion that "it would serve an educational purpose for our citizens to become familiar with the important role which the Bible and Ten Commandments have played in molding our American traditions and laws."

As for the nine documents displayed in the courthouses, Judge Clay also affirmed the injunction because the description entitled, "The Foundations of American Law and Government Display" did not suitably draw a connection between the Ten Commandments and the foundations of American law.

In a concurring opinion, Judge Julia Smith Gibbons said she agreed with the court's ruling, particularly with the "secular purpose" prong of the Lemon test. However, she also said she had no opinion whether the displays effect or endorse religion of any kind, in relation to the other prongs of the Lemon test.

In dissent, Senior Judge James L. Ryan said the Lemon test has proven difficult to apply in many Establishment Clause cases. He noted the Supreme Court has already cautioned against "mechanically applying" the test to every Establishment Clause case and six of the current Supreme Court members have criticized the test.

However, Judge Ryan recognized it is, in fact, the test, and must be applied in this case. He said the district court based its decision on the conclusion that the displays failed the purpose and effect prongs of the test, but he disagreed.

First, to test whether the government's display has a secular purpose, he said it just must be proven that it is not "motivated entirely" by a purpose to advance religion, which he thought these displays were not.

Staver, who represents the counties, agrees, and sought review from the U.S. Supreme Court, noting that the 6th Circuit opinion conflicts with opinions from the 3rd, 5th, 10th and 11th circuits, as well as with the Colorado Supreme Court. All of these courts found the "purpose" prong of the Lemon test does not mean the displays must be exclusively secular. He added that the Ten Commandments play an enormous role in American government - and can even be found on the wall in the Court's own chambers.

"Essentially, there's a difference between government establishment of religion, that the Constitution bans, and an acknowledgement of religion that the Constitution permits," Staver said.

On Oct. 12, 2004, the U.S. Supreme Court accepted review in the case. The same day it also granted certiorari in Van Order v. Perry, a Ten Commandments case out of Texas.

Staver said the significance of the case goes beyond the Ten Commandments display because four questions were submitted to the Supreme Court to rule on. Two of those dealt with the validity of the Lemon test.

"This case would potentially overrule the Lemon test," he said. "This case will effect every display of the Ten Commandments in the country…and it could establish a new test that we could see used in the future."

Marci Hamilton, a Visiting Scholar at the Princeton Theological Seminary and commentator on church/state issues, said she wasn't surprised the Supreme Court agreed to hear the case. She said the two Ten Commandment cases the Court accepted are difficult, but raise the very issue the Court needs to answer: Is it EVER constitutional for the government to display the Ten Commandments?

"The answer will be yes," Hamilton said. "But it will depend on what message the viewer receives from looking at it, which is informed by context, commentary, and government action."