Van Orden v. PerryVan Orden v. Perry
The question here is whether the Establishment Clause of the First Amendment allows the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds. We hold that it does.
The 22 acres surrounding the Texas State Capitol contain 17 monuments and 21 historical markers commemorating the “people, ideals, and events that compose Texan identity.” Tex. H. Con. Res. 38, 77th Leg., Reg. Sess. (2001).1 The monolith challenged here stands 6-feet high and 3-feet wide. It is located to the north of the Capitol building, between the Capitol and the Supreme Court building. Its primary content is the text of the Ten Commandments. An eagle grasping the American flag, an eye inside of a pyramid, and two small tablets with what appears to be an ancient script are carved above the text of the Ten Commandments. Below the text are two Stars of David and the superimposed Greek letters Chi and Rho, which represent Christ. The bottom of the monument bears the inscription
The legislative record surrounding the State‘s acceptance of the monument from the Eagles—a national social, civic, and patriotic organization—is limited to legislative journal entries. After the monument was accepted, the State selected a site for the monument based on the recommendation of the state organization responsible for maintaining the Capitol grounds. The Eagles paid the cost of erecting the monument, the dedication of which was presided over by two state legislators.
Petitioner Thomas Van Orden is a native Texan and a resident of Austin. At one time he was a licensed lawyer, having graduated from Southern Methodist Law School. Van Orden testified that, since 1995, he has encountered the Ten Commandments monument during his frequent visits to the Capitol grounds. His visits are typically for the purpose of using the law library in the Supreme Court building, which is located just northwest of the Capitol building.
Forty years after the monument‘s erection and six years after Van Orden began to encounter the monument frequently, he sued numerous state officials in their official capacities under Rev. Stat. §1979,
Our cases, Januslike, point in two directions in applying the Establishment Clause. One face looks toward the strong role played by religion and religious traditions throughout our Nation‘s history. As we observed in School Dist. of Abington Township v. Schempp, 374 U. S. 203 (1963):
“It is true that religion has been closely identified with our history and government. . . . The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself. . . . It can be truly said, therefore, that today, as in the beginning, our national life reflects a religious people who, in the words of Madison, are ‘earnestly praying, as . . . in duty bound, that the Supreme Lawgiver of the Universe . . . guide them into every measure which may be worthy of his [blessing . . . .]’ ” Id., at 212–213.2
The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom.
This case, like all Establishment Clause challenges, presents us with the difficulty of respecting both faces. Our institutions presuppose a Supreme Being, yet these institutions must not press religious observances upon their citizens. One face looks to the past in acknowledgment of our Nation‘s heritage, while the other looks to the present in demanding a separation between church and state. Reconciling these two faces requires that we neither abdicate our
“When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. . . . [W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.” Zorach v. Clauson, 343 U. S. 306, 313–314 (1952).
See also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 845–846 (1995) (warning against the “risk [of] fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires“).3
Whatever may be the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence, we think it not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds. Instead, our analysis is driven both by the nature of the monument and by our Nation‘s history.
As we explained in Lynch v. Donnelly, 465 U. S. 668 (1984): “There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.” Id., at 674. For example, both Houses passed resolutions in 1789 asking President George Washington to issue a Thanksgiving Day Proclamation to “recommend to the people of the United States a day of public thanksgiving and prayer, to be observed, by acknowledging, with gratеful hearts, the many and signal favors of Almighty God.” 1 Annals of Cong. 90, 914 (internal quotation marks omitted). President Washington‘s procla
“Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquillity, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted; for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.” 1 J. Richardson, Messages and Papers of the Presidents, 1789–1897, p. 64 (1899).
Recognition of the role of God in our Nation‘s heritage has also been reflected in our decisions. We have acknowledged, for example, that “religion has been closely identified with our history and government,” School Dist. of Abington Township v. Schempp, 374 U. S., at 212, and that “[t]he history of man is inseparable from the history of religion,” Engel v. Vitale, 370 U. S. 421, 434 (1962).7 This recognition
In this case we are faced with a display of the Ten Commandments on government property outside the Texas State Capitol. Such acknowledgments of the role playеd by the Ten Commandments in our Nation‘s heritage are common throughout America. We need only look within our own Courtroom. Since 1935, Moses has stood, holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze. Representations of the Ten Commandments adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom. Moses also sits on the exterior east facade of the building holding the Ten Commandments tablets.
Our opinions, like our building, have recognized the role the Decalogue plays in America‘s heritage. See, e. g., McGowan v. Maryland, 366 U. S., at 442; id., at 462 (separate opin
Of course, the Ten Commandments are religious—they were so viewed at their inception and so remain. The monument, therefore, has religious significance. According to Judeo-Christian belief, the Ten Commandments were given to Moses by God on Mt. Sinai. But Moses was a lawgiver as well as a religious leader. 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. See Lynch v. Donnelly, 465 U. S., at 680, 687; Marsh v. Chambers, 463 U. S., at 792; McGowan v. Maryland, supra, at 437–440; Walz v. Tax Comm‘n of City of New York, 397 U. S. 664, 676–678 (1970).
There are, of course, limits to the display of religious messages or symbols. For example, we held unconstitutional a Kentucky statute requiring the posting of the Ten Commandments in every public schoolroom. Stone v. Graham, 449 U. S. 39 (1980) (per curiam). In the classroom context, we found that the Kentucky statute had an improper and plainly religious purpose. Id., at 41. As evidenced by Stone‘s almost exclusive reliance upon two of our school
The placement of the Ten Commandments monument on the Texas State Capitol grounds is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day. Indeed, Van Orden, the petitioner here, apparently walked by the monument for a number of years before bringing this lawsuit. The monument is therefore also quite different from the prayers involved in Schempp and Lee v. Weisman. Texas has treated its Capitol grounds monuments as representing the several strands in the State‘s political and legal history. The inclusion of the Ten Commandments monument in this
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE SCALIA, concurring.
I join the opinion of THE CHIEF JUSTICE because I think it accurately reflects our current Establishment Clause jurisprudence—or at least the Establishment Clause jurisprudence we currently apply some of the time. I would prefer to reach the same result by adopting an Establishment Clause jurisprudence that is in accord with our Nation‘s past and present practices, and that can be consistently applied—the central relevant feature of which is that there is nothing unconstitutional in a State‘s favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments. See McCreary County v. American Civil Liberties Union of Ky., post, at 885–894 (SCALIA, J., dissenting).
JUSTICE THOMAS, concurring.
The Court holds that the Tеn Commandments monument found on the Texas State Capitol grounds does not violate the Establishment Clause. Rather than trying to suggest meaninglessness where there is meaning, THE CHIEF JUSTICE rightly recognizes that the monument has “religious significance.” Ante, at 690. He properly recognizes the role of religion in this Nation‘s history and the permissibility of government displays acknowledging that history. Ante, at 686–688. For those reasons, I join THE CHIEF JUSTICE‘S opinion in full.
This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing
Even if the Clause is incorporated, or if the Free Exercise Clause limits the power of States to establish religions, see Cutter v. Wilkinson, 544 U. S. 709, 728, n. 3 (2005) (THOMAS, J., concurring), our task would be far simpler if we returned to the original meaning of the word “establishment” than it is under the various approaches this Court now uses. The Framers understood an establishment “necessarily [to] involve actual legal coercion.” Newdow, supra, at 52 (THOMAS, J., concurring in judgment); Lee v. Weisman, 505 U. S. 577, 640 (1992) (SCALIA, J., dissenting) (“The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty“). “In other words, establishment at the founding involved, for example, mandatory observance or mandatory payment of taxes supporting ministers.” Cutter, supra, at 729 (THOMAS, J., concurring). And “government practices that have nothing to do with creating or maintaining . . . coercive state establishments” simply do not “implicate the possible liberty interest of being
There is no question that, based on the original meaning of the Establishment Clause, the Ten Commandments display at issue here is constitutional. In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even to look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause.
Returning to the original meaning would do more than simplify our task. It also would avoid the pitfalls present in the Court‘s current approach to such challenges. This Court‘s precedent elevates the trivial to the proverbial “federal case,” by making benign signs and postings subject to challenge. Yet even as it does so, the Court‘s precedent attempts to avoid declaring all religious symbols and words of longstanding tradition unconstitutional, by counterfactually declaring them of little religious significance. Even when the Court‘s cases recognize that such symbols have religious meaning, they adopt an unhappy compromise that fails fully to account for either the adherent‘s or the nonadherent‘s beliefs, and provides no principled way to choose between them. Even worse, the incoherence of the Court‘s decisions in this area renders the Establishment Clause impenetrable and incapable of consistent application. All told, this Court‘s jurisprudence leaves courts, governments, and believers and nonbelievers alike confused—an observation that is hardly new. See Newdow, supra, at 45, n. 1 (THOMAS, J., concurring in judgment) (collecting cases).
First, this Court‘s precedent permits even the slightest public recognition of religion to constitute an establishment of religion. For example, individuals frequenting a county
Second, in a seeming attempt to balance out its willingness to consider almost any acknowledgment of religion an establishment, in other cases Members of this Court have concluded that the term or symbol at issue has no religious meaning by virtue of its ubiquity or rote ceremonial invocation. See, e. g., id., at 630–631 (O‘CONNOR, J., concurring in part аnd concurring in judgment); Lynch v. Donnelly, 465 U. S. 668, 716–717 (1984) (Brennan, J., dissenting). But words such as “God” have religious significance. For example, just last Term this Court had before it a challenge to the recitation of the Pledge of Allegiance, which includes the
Even when this Court‘s precedents recognize the religious meaning of symbols or words, that recognition fails to respect fully religious belief or disbelief. This Court looks for the meaning to an observer of indeterminate religious affiliation who knows all the facts and circumstances surrounding a challenged display. See, e. g., Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 780 (1995) (O‘CONNOR, J., concurring in part and concurring in judgment) (presuming that a reasonable observer is “aware of the history and context of the community and forum in which the religious display appears“). In looking to the view of this unusually informed observer, this Court inquires whether the sign or display “sends the ancillary message to . . . nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.’ ” Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 309–310 (2000) (quoting Lynch, supra, at 688 (O‘CONNOR, J., concurring)).
This analysis is not fully satisfying to either nonadherents or adherents. For the nonadherent, who may well be more sensitive than the hypothetical “reasonable observer,” or who may not know all the facts, this test fails to capture completely the honest and deeply felt offense he takes from
Finally, the very “flexibility” of this Court‘s Establishment Clause precedent leaves it incapable of consistent application. See Edwards v. Aguillard, 482 U. S. 578, 640 (1987) (Scalia, J., dissenting) (criticizing the Lemon test‘s “flexibility” as “the absence of any principled rationale” (internal quotation marks omitted)). The inconsistency between the decisions the Court reaches today in this case and in McCreary County v. American Civil Liberties Union of Ky., post, p. 844, only compounds the confusion.
The unintelligibility of this Court‘s precedent raises the further concern that, either in appearance or in fact, adjudication of Establishment Clause challenges turns on judicial predilections. See, e. g., Harris v. Zion, 927 F. 2d 1401, 1425 (CA7 1991) (Easterbrook, J., dissenting) (“Line drawing in this area will be erratic and heavily influenced by the personal views of the judges“); post, at 700 (Breyer, J., concurring in judgment) (“I see no test-related substitute for the exercise of legal judgment“). The outcome of constitutional cases ought to rest on firmer grounds than the personal preferences of judges.
Much, if not all, of this would be avoided if the Court would return to the views of the Framers and adopt coercion as the touchstone for our Establishment Clause inquiry. Every acknowledgment of religion would not give rise to an Establishment Clause claim. Courts would not act as theological commissions, judging the meaning of religious matters. Most important, our precedent would be capable of consistent and coherent application. While the Court cor
Justice Breyer, concurring in the judgment.
In School Dist. of Abington Township v. Schempp, 374 U. S. 203 (1963), Justice Goldberg, joined by Justice Harlan, wrote, in respect to the First Amendment‘s Religion Clauses, that there is “no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible.” Id., at 306 (concurring opinion). One must refer instead to the basic purposes of those Clauses. They seek to “assure the fullest possible scope of religious liberty and tolerance for all.” Id., at 305. They seek to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike. Zelman v. Simmons-Harris, 536 U. S. 639, 717-729 (2002) (Breyer, J., dissenting). They seek to maintain that “separation of church and state” that has long been critical to the “peaceful dominion that religion exercises in [this] country,” where the “spirit of religion” and the “spirit of freedom” are productively “united,” “reign[ing] together” but in separate spheres “on the same soil.” A. de Tocqueville, Democracy in America 282-283 (1835) (H. Mansfield & D. Winthrop transls. and eds. 2000). They seek to further the basic principles set forth today by Justice O‘Connor in her concurring opinion in McCreary County v. American Civil Liberties Union of Ky., post, at 881.
The Court has made clear, as Justices Goldberg and Harlan noted, that the realization of these goals means that government must “neither engage in nor compel religious practices,” that it must “effect no favoritism among sects or between religion and nonreligion,” and that it must “work deterrence of no religious belief.” Schempp, supra, at 305 (concurring opinion); see also Lee v. Weisman, 505 U. S. 577, 587 (1992); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15-16 (1947). The government must avoid excessive interference with, or promotion of, religion. See generally County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 593-594 (1989); Zelman, supra, at 723-725 (Breyer, J., dissenting). But the Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious. See, e. g., Marsh v. Chambers, 463 U. S. 783 (1983). Such absolutism is not only inconsistent with our national traditions, see, e. g., Lemon v. Kurtzman, 403 U. S. 602, 614 (1971); Lynch v. Donnelly, 465 U. S. 668, 672-678 (1984), but would also tend to promote the kind of social conflict the Establishment Clause seeks to avoid.
Thus, as Justices Goldberg and Harlan pointed out, the Court has found no single mechanical formula that can accurately draw the constitutional line in every case. See Schempp, 374 U. S., at 306 (concurring opinion). Where the Establishment Clause is at issue, tests designed to measure “neutrality” alone are insufficient, both because it is sometimes difficult to determine when a legal rule is “neutral,” and because
“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.” Ibid.
Neither can this Court‘s other tests readily explain the Establishment Clause‘s tolerance, for example, of the prayers that open legislative meetings, see Marsh, supra; certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving. See,
If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases. And in such cases, I see no test-related substitute for the exercise of legal judgment. See Schempp, supra, at 305 (Goldberg, J., concurring); cf. Zelman, supra, at 726-728 (Breyer, J., dissenting) (need for similar exercise of judgment where quantitative considerations matter). That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faithful to the underlying purposes of the Clauses, and it must take account of context and consequences measured in light of those purposes. While the Court‘s prior tests provide useful guideposts—and might well lead to the same result the Court reaches today, see, e. g., Lemon, supra, at 612-613; Capitol Square, supra, at 773-783 (O‘Connor, J., concurring in part and concurring in judgment)—no exact formula can dictate a resolution to such fact-intensive cases.
The case before us is a borderline case. It concerns a large granite monument bearing the text of the Ten Commandments located on the grounds of the Texas State Capitol. On the one hand, the Commandments’ text undeniably has a religious message, invoking, indeed emphasizing, the
In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral message (about proper standards of social conduct). And in certain contexts, a display of the tablets can also convey a historical message (about a historic relation between those standards and the law)—a fact that helps to explain the display of those tablets in dozens of courthouses throughout the Nation, including the Supreme Court of the United States. See generally App. to Brief for United States as Amicus Curiae 1a-7a.
Here the tablets have been used as part of a display that communicates not simply a religious message, but a secular message as well. The circumstances surrounding the display‘s placement on the capitol grounds and its physical setting suggest that the State itself intended the latter, 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.
The group that donated the monument, the Fraternal Order of Eagles, a private civic (and primarily secular) organization, while interestеd in the religious aspect of the Ten Commandments, sought to highlight the Commandments’ role in shaping civic morality as part of that organization‘s efforts to combat juvenile delinquency. See Tex. S. Con. Res. 16, 57th Leg., Reg. Sess. (1961). The Eagles’ consultation with a committee composed of members of several faiths in order to find a nonsectarian text underscores the group‘s ethics-based motives. See Brief for Respondents 5-6, and n. 9. The tablets, as displayed on the monument, prominently acknowledge that the Eagles donated the display, a factor which, though not sufficient, thereby further distances
The physical setting of the monument, moreover, suggests little or nothing of the sacred. See Appendix A, infra. The monument sits in a large park containing 17 monuments and 21 historical markers, all designed to illustrate the “ideals” of those who settled in Texas and of those who have lived there since that time. Tex. H. Con. Res. 38, 77th Leg., Reg. Sess. (2001); see Appendix B, infra. The setting does not readily lend itself to meditation or any other religious activity. But it does provide a context of history and moral ideals. It (together with the display‘s inscription about its origin) communicates to visitors that the State sought to reflect moral principles, illustrating a relation between ethics and law that the State‘s citizens, historically speaking, have endorsed. That is to say, the context suggests that the State intended the display‘s moral message—an illustrative message reflecting the historical “ideals” of Texans—to predominate.
If these factors provide a strong, but not conclusive, indication that the Commandments’ text on this monument conveys a predominantly secular message, a further factor is determinative here. As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect, primarily to promote religion over nonreligion, to “engage in” any “religious practic[e],” to “compеl” any “religious practic[e],” or to “work deterrence” of any “religious belief.” Schempp, 374 U. S., at 305 (Goldberg, J., concurring). Those 40 years suggest that
This case, moreover, is distinguishable from instances where the Court has found Ten Commandments displays impermissible. The display is not on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state. See, e. g., Weisman, 505 U. S., at 592; Stone v. Graham, 449 U. S. 39 (1980) (per curiam). This case also differs from McCreary County, where the short (and stormy) history of the courthouse Commandments’ displays demonstrates the substantially religious objectives of those who mounted them, and the effect of this readily apparent objective upon those who view them. See post, at 869-873 (opinion of the Court). That history there indicates a governmental effort substantially to promote religion, not simply an effort primarily to reflect, historically, the secular impact of a religiously inspired document. And, in today‘s world, in a Nation of so many different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, preexisting monument has not.
For these reasons, I believe that the Texas display—serving a mixed but primarily nonreligious purpose, not primarily “advanc[ing]” or “inhibit[ing] religion,” and not creating an “excessive government entanglement with religion“—might satisfy this Court‘s more formal Establishment Clause tests. Lemon, 403 U. S., at 612-613 (internal quotation marks omitted); see also Capitol Square, 515 U. S., at 773-783 (O‘Connor, J., concurring in part and concurring in judgment). But, as I have said, in reaching the conclusion that the Texas display falls on the permissible side of the constitutional line, I rely less upon a literal application of any partic
At the same time, to reach a contrary conclusion here, based primarily on the religious nature of the tablets’ text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions. Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid. Zelman, 536 U. S., at 717-729 (Breyer, J., dissenting).
Justices Goldberg and Harlan concluded in Schempp that
“[t]he First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact.” 374 U. S., at 308 (concurring opinion).
That kind of practice is what we have here. I recognize the danger of the slippery slope. Still, where the Establishment Clause is at issue, we must “distinguish between real threat and mere shadow.” Ibid. Here, we have only the shadow.
In light of these considerations, I cannot agree with today‘s plurality‘s analysis. Nor can I agree with Justice Scalia‘s dissent in McCreary County, post, at 885. I do agree with Justice O‘Connor‘s statement of principles in McCreary County, post, at 881-883, though I disagree with
I concur in the judgment of the Court.
[Appendixes A and B to opinion of Breyer, J., follow this page.]
Red arrow points to Ten Commandments Monument.
APPENDIX B TO OPINION OF BREYER, J.
The sole function of the monument on the grounds of Texas’ State Capitol is to display the full text of one version of the Ten Commandments. The monument is not a work of art and does not refer to any event in the history of the State. It is significant because, and only because, it communicates the following message:
“I AM the LORD thy God.
Thou shalt have no other gods before me.
Thou shalt not make to thyself any graven images.
Thou shalt not take the Name of the Lord thy God in vain.
Remember the Sabbath day, to keep it holy.
Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.
Thou shalt not kill.
Thou shalt not commit adultery.
Thou shalt not steal.
Thou shalt not bear false witness against thy neighbor.
Thou shalt not covet thy neighbor‘s house.
Thou shalt not covet thy neighbor‘s wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor‘s.” See Appendix, infra.1
Viewed on its face, Texas’ display has no purported connection to God‘s role in the formation of Texas or the founding of our Nation; nor does it provide the reasonable observer with any basis to guess that it was erected to honor any individual or organization. The message transmitted by Texas’ chosen display is quite plain: This State endorses the divine code of the “Judeo-Christian” God.
I
In my judgment, at the very least, the Establishment Clause has created a strong presumption against the display of religious symbols on public property. See, e. g., County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 650 (1989) (Stevens, J., concurring in part and dissenting in part); Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 797 (1995) (Stevens, J., dissenting). The adornment of our public spaces with displays of religious symbols and messages undoubtedly provides comfort, even inspiration, to many individuals who subscribe to particular faiths. Unfortunately, the practice also runs the risk of “offend[ing] nonmembers of the faith being advertised as well as adherents who consider the particular advertisement disrespectful.” Allegheny County, 492 U. S., at 651 (Stevens, J., concurring in part and dissenting in part).3
Acknowledgments of this broad understanding of the neutrality principle are legion in our cases.7 Strong arguments to the contrary have been raised from time to time, perhaps the strongest in then-Justice Rehnquist‘s scholarly dis
In restating this principle, I do not discount the importance of avoiding an overly strict interpretation of the metaphor so often used to define the reach of the Establishment Clause. The plurality is correct to note that “religion and religious traditions” have played a “strong role . . . throughout our Nation‘s history.” Ante, at 683. This Court has often recognized “an unbroken history of official acknowledgment . . . of the role of religion in American life.” Lynch v. Donnelly, 465 U. S. 668, 674 (1984); accord, Edwards v. Aguillard, 482 U. S. 578, 606-608 (1987) (Powell, J., concurring). Given this history, it is unsurprising that a religious symbol may at times become an important feature of a familiar landscape or a reminder of an important event in the history of a community. The wall that separates the church from the State does not prohibit the government from acknowledging the religious beliefs and practices of the American people, nor does it require governments to hide works of art or historic memorabilia from public view just because they also have religious significance.
This case, however, is not about historic preservation or the mere recognition of religion. The issue is obfuscated rather than clarified by simplistic commentary on the various
The monolith displayed on Texas Capitol grounds cannot be discounted as a passive acknowledgment of religion, nor can the State‘s refusal to remove it upon objection be explained as a simple desire to preserve a historic relic. This Nation‘s resolute commitment to neutrality with respect to religion is flatly inconsistent with the plurality‘s wholehearted validation of an official state endorsement of the message that there is one, and only one, God.
II
When the Ten Commandments monument was donated to the State of Texas in 1961, it was not for the purpose of commemorating a noteworthy event in Texas history, signi-
As the story goes, the program was initiated by the late Judge E. J. Ruegemer, a Minnesota juvenile court judge and then-Chairman of the Eagles National Commission on Youth Guidance. Inspired by a juvenile offender who had never heard of the Ten Commandments, the judge approached the Minnesota Eagles with the idea of distributing paper copies of the Commandments to be posted in courthouses nationwide. The State‘s Aerie undertook this project and its popularity spread. When Cecil B. DeMille, who at that time was filming the movie The Ten Commandments, heard of the judge‘s endeavor, he teamed up with the Eagles to produce the type of granite monolith now displayed in front of the Texas Capitol and at courthouse squares, city halls, and public parks throughout the Nation. Granite was reportedly chosen over DeMille‘s original suggestion of bronze plaques to better replicate the original Ten Commandments.11
“‘[I]n searching for a youth guidance program [we] recognized that there can be no better, no more defined program of Youth Guidance, and adult guidance as well, than the laws handed down by God Himself to Moses more than 3000 years ago, which laws have stood unchanged through the years. They are a fundamental part of our lives, the basis of all our laws for living, the foundation of our relationship with our Creator, with our families and with our fellow men. All the concepts we
live by—freedom, democracy, justice, honor—are rooted in the Ten Commandments. “‘The erection of these monoliths is to inspire all who pause to view them, with a renewed respect for the law of God, which is our greatest strength against the forces that threaten our way of life.‘” Anderson v. Salt Lake City Corp., 348 F. Supp. 1170, 1172 (Utah 1972), rev‘d, 475 F. 2d 29 (CA10 1973).
The desire to combat juvenile delinquency by providing guidance to youths is both admirable and unquestionably secular. But achieving that goal through biblical teachings injects a religious purpose into an otherwise secular endeavor. By spreading the word of God and converting heathens to Christianity, missionaries expect to enlighten their converts, enhance their satisfaction with life, and improve their behavior. Similarly, by disseminating the “law of God“—directing fidelity to God and proscribing murder, theft, and adultery—the Eagles hope that this divine guidance will help wayward youths conform their behavior and improve their lives. In my judgment, the significant secular byproducts that are intended consequences of religious instruction—indeed, of the establishment of most religions—are not the type of “secular” purposes that justify government promulgation of sacred religious messages.
Though the State of Texas may genuinely wish to combat juvenile delinquency, and may rightly want to honor the Eagles for their efforts, it cannot effectuate these admirable purposes through an explicitly religious medium. See Bowen v. Kendrick, 487 U. S. 589, 639-640 (1988) (Blackmun, J., dissenting) (“It should be undeniable by now that religious dogma may not be employed by government even to accomplish laudable secular purposes“). The State may admonish its citizens not to lie, cheat, or steal, to honor their parents, and to respect their neighbors’ property; and it may do so by printed words, in television commercials, or on granite
The reason this message stands apart is that the Decalogue is a venerable religious text.14 As we held 25 years ago, it is beyond dispute that “[t]he Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths.” Stone v. Graham, 449 U. S. 39, 41 (1980) (per curiam). For many followers, the Commandments represent the literal word of God as spoken to Moses and repeated to his followers after descending from Mount Sinai. The message conveyed by the Ten Commandments thus cannot be analogized to an appendage to a common article of commerce (“In God we Trust“) or an incidental part of a familiar recital (“God save the United States and this honorable Court“). Thankfully, the plurality does not attempt to minimize the religious significance of the Ten Commandments. Ante, at 690 (“Of course, the Ten Commandments are religious—they were so viewed at their inception and so remain“); ante, at 692 (Thomas, J., concurring); see also McCreary County v.
The profoundly sacred message embodied by the text inscribed on the Texas monument is emphasized by the especially large letters that identify its author: “I AM the LORD thy God.” See Appendix, infra. It commands present worship of Him and no other deity. It directs us to be guided by His teaching in the current and future conduct of all of our affairs. It instructs us to follow a code of divine law, some of which has informed and been integrated into our secular legal code (“Thou shalt not kill“), but much of which has not (“Thou shalt not make to thyself any graven images. . . . Thou shalt not covet“).
Moreover, despite the Eagles’ best efforts to choose a benign nondenominational text,15 the Ten Commandments display projects not just a religious, but an inherently sectarian, message. There are many distinctive versions of the Decalogue, ascribed to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous reli-
The
Even if, however, the message of the monument, despite the inscribed text, fairly could be said to represent the belief system of all Judeo-Christians, it would still run afoul of the
I do not doubt that some Texans, including those elected to the Texas Legislature, may believe that the statues displayed on the Texas Capitol grounds, including the Ten Commandments monument, reflect the “ideals . . . that compose Texan identity.” Tex. H. Con. Res. 38, 77th Leg., Reg. Sess. (2001). But Texas, like our entire country, is now a much more diversified community than it was when it became a part of the United States or even when the monument was erected. Today there are many Texans who do not believe in the God whose Commandments are displayed at their seat of government. Many of them worship a different god or no god at all. Some may believe that the account of the creation in the Book of Genesis is less reliable than the views of men like Darwin and Einstein. The monument is no more an expression of the views of every true Texan than was the “Livе Free or Die” motto that the State of New Hampshire placed on its license plates in 1969 an accurate expression of the views of every citizen of New Hampshire. See Wooley v. Maynard, 430 U. S. 705 (1977).
Recognizing the diversity of religious and secular beliefs held by Texans and by all Americans, it seems beyond peradventure that allowing the seat of government to serve as a stage for the propagation of an unmistakably Judeo-Christian message of piety would have the tendency to make nonmonotheists and nonbelievers “feel like [outsiders] in matters of faith, and [strangers] in the political community.” Pinette, 515 U. S., at 799 (Stevens, J., dissenting). “[D]isplays of this kind inevitably have a greater tendency to emphasize sincere and deeply felt differences among individuals than to achieve an ecumenical goal.” Allegheny County, 492 U. S., at 651 (Stevens, J., concurring in part and dissenting in part).19
Even more than the display of a religious symbol on government property, see Pinette, 515 U. S., at 797 (Stevens, J., dissenting); Allegheny County, 492 U. S., at 650-651 (Stevens, J., concurring in part and dissenting in part), displaying this sectarian text at the state capitol should invoke a powerful presumption of invalidity. As Justice Souter‘s opinion persuasively demonstrates, the physical setting in which the Texas monument is displayed—far from rebutting that presumption—actually enhances the religious content of its message. See post, at 742-743 (dissenting opinion). The monument‘s permanent fixture at the seat of Texas government is of immense significance. The fact that a monument
“is installed on public property implies official recognition and reinforcement of its message. That implication is especially strong when the sign stands in front of the seat of the government itself. The ‘reasonable observer’ of any symbol placed unattended in front of any capitol in the world will normally assume that the sovereign—which is not only the owner of that parcel of real estate but also the lawgiver for the surrounding territory—has sponsored and facilitated its message.” Pinette, 515 U. S., at 801-802 (Stevens, J., dissenting).
Critical examination of the Decalogue‘s prominent display at the seat of Texas government, rather than generic citation
III
The plurality relies heavily on the fact that our Republic was founded, and has been governed since its nascence, by leaders who spoke then (and speak still) in plainly religious rhetoric. The Chief Justice cites, for instance, George Washington‘s 1789 Thanksgiving Proclamation in support of the proposition that the
The speeches and rhetoric characteristic of the founding era, however, do not answer the question before us. I have already explained why Texas’ display of the full text of the Ten Commandments, given the content of the actual display
These seemingly nonconforming sentiments should come as no surprise. Not insignificant numbers of colonists came to this country with memories of religious persecution by
Ardent separationists aside, there is another critical nuance lost in the plurality‘s portrayal of history. Simply put, many of the Founders who are often cited as authoritative expositors of the Constitution‘s original meaning understood the
The evidence is compelling. Prior to the Philadelphia Convention, the States had begun to protect “religious freedom” in their various constitutions. Many of those provisions, however, restricted “equal protection” and “free ex-
“not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus sought to cut off the means of religious persecution, (the vice and pest of former ages,) and the power of subverting the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age.” J. Story, Commentaries on the Constitution of the United States § 991, p. 701 (R. Rotunda & J. Nowak eds. 1987) (hereinafter Story); see also Wallace, 472 U. S., at 52-55, and n. 36.29
Along these lines, for nearly a century after the founding, many accepted the idea that America was not just a religious Nation, but “a Christian nation.” Church of Holy Trinity v. United States, 143 U. S. 457, 471 (1892).30
The original understanding of the type of “religion” that qualified for constitutional protection under the
The inclusion of Jews and Muslims inside the category of constitutionally favored religions surely would have shocked Chief Justice Marshall and Justice Story. Indeed, Justice Scalia is unable to point to any persuasive historical evidеnce or entrenched traditions in support of his decision to give specially preferred constitutional status to all monotheistic religions. Perhaps this is because the history of the
Indeed, to constrict narrowly the reach of the
A reading of the
Unless one is willing to renounce over 65 years of
It is our duty, therefore, to interpret the First Amendment‘s command that “Congress shall make no law respecting an establishment of religion” not by merely asking what those words meant to observers at the time of the founding, but instead by deriving from the Clause‘s text and history the broad principles that remain valid today. As we have said in the context of statutory interpretation, legislation “often [goes] beyond the principal evil [at which the statute was aimed] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the princi-
To reason from the broad principles contained in the Constitution does not, as Justice Scalia suggests, require us to abandon our heritage in favor of unprincipled expressions of personal preference. The task of applying the broad principles that the Framers wrote into the text of the First Amendment is, in any event, no more a matter of personal preference than is one‘s selection between two (or more) sides in a heated historical debate. We serve our constitutional mandate by expounding the meaning of constitutional provisions with one eye toward our Nation‘s history and the other fixed on its democratic asрirations. See McCulloch v.
“are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, ‘designed to approach immortality as nearly as human institutions can approach it.’ The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas.” Weems v. United States, 217 U. S. 349, 373 (1910).
The principle that guides my analysis is neutrality.35 The basis for that principle is firmly rooted in our Nation‘s
IV
The Eagles may donate as many monuments as they choose to be displayed in front of Protestant churches, benevolent organizations’ meeting places, or on the front lawns of private citizens. The expurgated text of the King James version of the Ten Commandments that they have crafted is unlikely to be accepted by Catholic parishes, Jewish synagoguеs, or even some Protestant denominations, but the message they seek to convey is surely more compatible with church property than with property that is located on the government side of the metaphorical wall.
The judgment of the Court in this case stands for the proposition that the Constitution permits governmental displays of sacred religious texts. This makes a mockery of the constitutional ideal that government must remain neutral between religion and irreligion. If a State may endorse a particular deity‘s command to “have no other gods before me,” it is difficult to conceive of any textual display that would run afoul of the Establishment Clause.
The disconnect between this Court‘s approval of Texas’ monument and the constitutional prohibition against preferring religion to irreligion cannot be reduced to the exercise of plotting two adjacent locations on a slippery slope. Cf. ante, at 704 (Breyer, J., concurring in judgment). Rather, it is the difference between the shelter of a fortress and exposure to “the winds that would blow” if the wall were allowed to crumble. See TVA v. Hill, 437 U. S. 153, 195 (1978) (internal quotation marks omitted). That wall, however imperfect, remains worth preserving.
I respectfully dissent.
[Appendix to opinion of Stevens, J., follows this page.]
For essentially the reasons given by Justice Souter, post this page (dissenting opinion), as well as the reasons given in my concurrence in McCreary County v. American Civil Liberties Union of Ky., post, p. 881, I respectfully dissent.
Justice Souter, with whom Justice Stevens and Justice Ginsburg join, dissenting.
Although the First Amendment‘s Religion Clauses have not been read to mandate absolute governmental neutrality toward religion, cf. Sherbert v. Verner, 374 U. S. 398 (1963), the Establishment Clause requires neutrality as a general rule, e. g., Everson v. Board of Ed. of Ewing, 330 U. S. 1, 18 (1947), and thus expresses Madison‘s condemnation of “employ[ing] Religion as an engine of Civil policy,” Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183, 187 (G. Hunt ed. 1901). 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.
Until today, only one of our cases addressed the constitutionality of posting the Ten Commandments, Stone v. Graham, 449 U. S. 39, 41-42 (1980) (per curiam). A Kentucky statute required posting the Commandments on the walls of public school classrooms, and the Court described the State‘s purpose (relevant under the tripartite test laid out in Lemon v. Kurtzman, 403 U. S. 602 (1971)), as being at odds with the obligation of religious neutrality.
“The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in naturе. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not con
fine themselves to arguably secular matters, such as honoring one‘s parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord‘s name in vain, and observing the Sabbath Day.” 449 U. S., at 41-42 (footnote and citations omitted).
What these observations underscore are the simple realities that 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.1
Thus, a pedestrian happening upon the monument at issue here needs no training in religious doctrine to realize that the statement of the Commandments, quoting God himself, proclaims that the will of the divine being is the source of obligation to obey the rules, including the facially secular ones. In this case, moreover, the text is presented to give particular prominence to the Commandments’ first sectarian
To drive the religious point home, and identify the message as religious to any viewer who failed to read the text, the engraved quotation is framed by religious symbols: two tablets with what appears to be ancient script on them, two Stars of David, and the superimposed Greek letters Chi and Rho as the familiar monogram of Christ. Nothing on the monument, in fact, detracts from its religious nature,2 see ibid. (“Here, unlike in Lynch [v. Donnelly, 465 U. S. 668 (1984)], nothing in the context of the display detracts from the creche‘s religious message“), and the plurality doеs not suggest otherwise. It would therefore be difficult to miss the point that the government of Texas3 is telling everyone
The monument‘s presentation of the Commandments with religious text emphasized and enhanced stands in contrast to any number of perfectly constitutional depictions of them, the frieze of our own Courtroom providing a good example, where the figure of Moses stands among history‘s great lawgivers. While Moses holds the tablets of the Commandments showing some Hebrew text, no one looking at the lines of figures in marble relief is likely to see a religious purpose behind the assemblage or take away a religious message from it. Only one other depiction represents a religious leader, and the historical personages are mixed with symbols of moral and intellectual abstractions like Equity and Authority. See County of Allegheny, supra, at 652 (Stevens, J., concurring in part and dissenting in part). Since Moses enjoys no especial prominence on the frieze, viewers can readily take him to be there as a lawgiver in the company of other lawgivers; and the viewers may just as naturally see the tablets of the Commandments (showing the later ones, forbidding things like killing and theft, but without the divine preface) as background from which the concept of law
And the Decalogue could, as Stone suggested, be integrated constitutionally into a course of study in public schools. 449 U. S., at 42.5
Texas seeks to take advantage of the recognition that visual symbol and written text can manifest a secular purpose in sеcular company, when it argues that its monument (like Moses in the frieze) is not alone and ought to be viewed as only 1 among 17 placed on the 22 acres surrounding the State Capitol. Texas, indeed, says that the Capitol grounds are like a museum for a collection of exhibits, the kind of setting that several Members of the Court have said can render the exhibition of religious artifacts permissible, even though in other circumstances their display would be seen as meant to convey a religious message forbidden to the State. County of Allegheny, 492 U. S., at 595 (opinion of Blackmun, J., joined by Stevens, J.); Lynch v. Donnelly, 465 U. S. 668, 692 (1984) (O‘Connor, J., concurring). So, for example, the Government of the United States does not violate the Establishment Clause by hanging Giotto‘s Madonna on the wall of the National Gallery.
But 17 monuments with no common appearance, history, or esthetic role scattered over 22 acres is not a museum, and anyone strolling around the lawn would surely take each memorial on its own terms without any dawning sense that some purpose held the miscellany together more coherently
If the State‘s museum argument does nothing to blunt the religious message and manifestly religious purpose behind it, neither does the plurality‘s reliance on generalities culled from cases factually different from this one. E. g., ante, at 687 (“We have acknowledged, for example, that ‘religion has been closely identified with our history and government,’ School Dist. of Abington Township v. Schempp, 374 U. S., at 212, and that ‘[t]he history of man is inseparable from the
When the plurality finally does confront Stone, it tries to avoid the case‘s obvious applicability by limiting its holding to the classroom setting. The plurality claims to find authority for limiting Stone‘s reach this way in the opinion‘s citations of two school-prayer cases, School Dist. of Abington Township v. Schempp, 374 U. S. 203 (1963), and Engel v. Vitale, 370 U. S. 421 (1962). But Stone relied on those cases for widely applicable notions, not for any concept specific to schools. The opinion quoted Schempp‘s statements that “it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment,” Schempp, supra, at 225, quoted in Stone, 449 U. S., at 42; and that “the place of the Bible as an instrument of religion cannot be gainsaid,” Schempp, supra, at 224, quoted in Stone, supra, at 41, n. 3. And Engel was cited to support the proposition that the State was responsible for displaying the Commandments, even though their framed, printed texts were bought with private subscriptions. Stone, supra, at 42 (“[T]he mere posting of the [Commandments] under the auspices of the legislature provides the official support of the State Government that the Establishment Clause prohibits” (ellipsis and internal quotation marks omitted)). Thus, the schoolroom was beside the point of the citations, and that is presumably why the Stone Court failed to discuss the educational setting, as other opinions had done when school was significant. E. g., Edwards v. Aguillard, 482 U. S. 578, 584 (1987). Stone did not, for example, speak of children‘s impressionability or their captivity as an audience in a school class. In fact, Stone‘s reasoning reached the classroom only in noting the lack of support for the claim that the State had brought the Commandments into schools in order to “integrat[e] [them] into the school curriculum.” 449 U. S., at 42.
Nor can the plurality deflect Stone by calling the Texas monument “a far more passive use of [the Decalogue] than was the case in Stone, where the text confronted elementary school students every day.” Ante, at 691. 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 to be read by anyone who looks at it. The problem in Stone was simply that the State was putting the Commandments there to be seen, just as the monument‘s inscription is there for those who walk by it.
To be sure, Kentucky‘s compulsory-education law meant that the schoolchildren were forced to see the display every day, whereas many see the monument by choice, and those who customarily walk the Capitol grounds can presumably avoid it if they choose. But in my judgment (and under our often inexact Establishment Clause jurisprudence, such matters often boil down to judgment, see ante, at 700 (Breyer, J., concurring in judgment)), this distinction should make no difference. The monument in this case sits on the grounds of the Texas State Capitol. There is something significant in the common term “statehouse” to refer to a state capitol building: it is the civic home of every one of the State‘s citizens. If neutrality in religion means something, any citizen should be able to visit that civic home without having to confront religious expressions clearly meant to convey an official religious position that may be at odds with his own
Finally, though this too is a point on which judgment will vary, I do not see a persuasive argument for constitutionality in the plurality‘s observation that Van Orden‘s lawsuit comes “[f]orty years after the monument‘s erection . . . ,” ante, at 682, an observation that echoes the State‘s contention that one fact cutting in its favor is that “the monument had stood in Austin . . . for some forty years without generating any controversy or litigation,” Brief for Respondents 25. It is not that I think the passage of time is necessarily irrelevant in Establishment Clause analysis. We have approved framing-era practices because they must originally have been understood as constitutionally permissible, e. g., Marsh v. Chambers, 463 U. S. 783 (1983) (legislative prayer), and we have recognized that Sunday laws have grown recognizably secular over time, McGowan v. Maryland, 366 U. S. 420 (1961). There is also an analogous argument, not yet evaluated, that ritualistic religious expression can become so numbing over time that its initial Establishment Clause violation becomes at some point too diminished for notice. But I do not understand any of these to be the State‘s argument, which rather seems to be that 40 years without a challenge shows that as a factual matter the religious expression is too tepid to provoke a serious reaction and constitute a violation. Perhaps, but the writer of Exodus chapter 20 was not lukewarm, and other explanations may do better in accounting
I would reverse the judgment of the Court of Appeals.
Notes
The clarity of the religious manifestation in Stone was unaffected by the State‘s effort to obscure it: the Kentucky statute that mandated posting the Commandments in classrooms also required the addition to every posting of a notation reading, “[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” 449 U. S., at 39-40, n. 1 (internal quotation marks omitted).
In the present case, the religious purpose was evident on the part of the donating organization. When the Fraternal Order of Eagles, the group that gave the monument to the State of Texas, donated identical monuments to other jurisdictions, it was seeking to impart a religious message. See Adland v. Russ, 307 F. 3d 471, 475 (CA6 2002) (quoting the Eagles’ statement in a letter written to Kentucky when a monument was donated to that Commonwealth: “‘Most of today‘s younger generation either have not seen the Ten Commandments or have not been taught them. In our opinion the youth of today is in dire need of learning the simple laws of God . . .‘“). Accordingly, it was not just the terms of the moral code, but the proclamation that the terms of the code were enjoined by God, that the Eagles put forward in the monuments they donated.
That the monument also surrounds the text of the Commandments with various American symbols (notably the U. S. flag and a bald eagle) only underscores the impermissibility of Texas‘s actions: by juxtaposing these patriotic symbols with the Commаndments and other religious signs, the monument sends the message that being American means being religious (and not just being religious but also subscribing to the Commandments, i. e., practicing a monotheistic religion).
There is no question that the State in its own right is broadcasting the religious message. When Texas accepted the monument from the Eagles, the state legislature, aware that the Eagles “for the past several years have placed across the country . . . parchment plaques and granite monoliths of the Ten Commandments [in order] to promote youth morality and to help stop the alarming increase in delinquency,” resolved “that the Fraternal Order of the Eagles of the State of Texas be commended and congratulated for its efforts and contributions in combating juvenile delinquency throughout our nation.” App. 97. The State, then, expressly approved of the Eagles’ proselytizing, which it made on its own.
For similar reasons, the other displays of the Commandments that the plurality mentions, ante, at 688-689, do not run afoul of the Establishment Clause. The statues of Moses and St. Paul in the Main Reading Room of the Library of Congress are 2 of 16 set in close proximity, statues that “represent men illustrious in the various forms of thought and activity . . . .” The Library of Congress: The Art and Architecture of the Thomas Jefferson Building 127 (J. Cole and H. Reeds eds. 1997). Moses and St. Paul represent religion, while the other 14 (a group that includes Beethoven, Shakespeare, Michelangelo, Columbus, and Plato) represent the nonreligious categories of philosophy, art, history, commerce, science, law, and poetry. Ibid. Similarly, the sculpture of the woman beside the Decalogue in the Main Reading Room is 1 of 8 such figures “represent[ing] eight characteristic features of civilized life and thought,” the same 8 features (7 of them nonreligious) that Moses, St. Paul, and the rest of the 16 statues represent. Id., at 125.
The inlay on the floor of the National Archives Building is one of four such discs, the collective theme of which is not religious. Rather, the discs “symbolize the various types of Government records that were to come into the National Archives.” Letter from Judith A. Koucky, Archivist, Records Control Section, to Catherine Millard (Oct. 1, 2003), http://www.christianheritagemins.org/articles/Ten_Commandments/Letter_archivist.htm (as visited June 16, 2005, and available in Clerk of Court‘s case file). (The four categories are war and defense, history, justice, and legislation. Each disc is paired with a winged figure; the disc containing the depiction оf the Commandments, a depiction that, notably, omits the Commandments’ text, is paired with a figure representing legislation. Ibid.)
As for Moses‘s “prominen[t] featur[ing] in the Chamber of the United States House of Representatives,” ante, at 689 (plurality opinion), Moses is actually 1 of 23 portraits encircling the House Chamber, each approximately the same size, having no religious theme. The portraits depict “men noted in history for the part they played in the evolution of what has become American law.” Art in the United States Capitol, House Doc. No. 94-660, p. 282 (1978). More importantly for purposes of this case, each portrait consists only of the subject‘s face; the Ten Commandments appear nowhere in Moses‘s portrait.
Similarly permissible, though obviously of a different character, are laws that can be traced back to the Commandments (even the more religious ones) but are currently supported by nonreligious considerations. See McCreary County v. American Civil Liberties Union of Ky., post, at 861 (opinion of the Court) (noting that in McGowan v. Maryland, 366 U. S. 420 (1961), the Court “upheld Sunday closing statutes on practical, secular grounds after finding that the government had forsaken the religious purposes behind centuries-old predecessor laws“).
It is true that the Commandments monument is unlike the display of the Commandments considered in the other Ten Commandments case we decide today, McCreary County. There the Commandments were posted at the behest of the county in the first instance, whereas the State of Texas received the monument as a gift from the Eagles, which apparently conceived of the donation at the suggestion of a movie producer bent on promoting his commercial film on the Ten Commandments, Books v. Elkhart, 235 F. 3d 292, 294-295 (CA7 2000), cert. denied, 532 U. S. 1058 (2001). But this distinction fails to neutralize the apparent expression of governmental intent to promote a religious message: although the nativity scene in County of Allegheny was donated by the Holy Name Society, we concluded that “[n]o viewer could reasonably think that [the scene] occupies [its] location [at the seat of county government] without the support and approval of the government.” 492 U. S., at 599-600.
In any event, the fact that we have been, as the plurality says, “‘particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools,‘” ante, at 691, does not of course mean that anything goes outside the schoolhouse. As cases like County of Allegheny and Lynch v. Donnelly, 465 U. S. 668 (1984), illustrate, we have also closely scrutinized government displays of religious symbols. And for reasons discussed in the text, the Texas monument cannot survive even a relaxed level of scrutiny.
Justice Thomas, at least, has faced this problem head on. See id., at 45 (opinion concurring in judgment). But even if the decision to incorporate the
Justice Thomas contends that the Establishment Clause cannot include such a neutrality principle because the Clause reaches only the governmental coercion of individual belief or disbelief. Ante, at 693-694 (concurring opinion). In my view, although actual religious coercion is undoubtedly forbidden by the Establishment Clause, that cannot be the full extent of the provision‘s reach. Jefferson‘s “wall” metaphor and his refusal to issue Thanksgiving proclamations, see supra, at 724, would have been nonsensical if the Clause reached only direct coercion. Further, under the “coercion” view, the Establishment Clause would amount to little more than a replica of our compelled speech doctrine, see, e. g., West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 639 (1943), with a religious flavor. A Clause so interpreted would not prohibit explicit state endorsements of religious orthodoxies of particular sects, actions that lie at the heart of what the Clause was meant to regulate. The government could, for example, take out television advertisements lauding Catholicism as the only pure religion. Under the reasoning endorsed by Justice Thomas, those programs would not be coercive because the viewer could simply turn off the television or ignore the ad. See ante, at 694 (“The mere presence of the monument . . . involves no coercion” becausе the passerby “need not stop to read it or even to look at it“).
Further, the notion that the application of a “coercion” principle would somehow lead to a more consistent jurisprudence is dubious. Enshrining coercion as the Establishment Clause touchstone fails to eliminate the difficult judgment calls regarding “the form that coercion must take.” McCreary County, post, at 909 (Scalia, J., dissenting). Coercion may seem obvious to some, while appearing nonexistent to others. Compare Santa Fe Independent School Dist., 530 U. S., at 312, with Lee, 505 U. S., at 642 (Scalia, J., dissenting). It may be a legal requirement or an effect that is indirectly inferred from a variety of factors. See, e. g., Engel v. Vitale, 370 U. S. 421, 431 (1962) (“When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain“). In short, “reasonable people could, and no doubt would, argue about whether coercion existed in a particular situation.” Feldman, 77 N. Y. U. L. Rev., at 415.