Van Orden v. Perry is the 2005 Supreme Court case that let a Ten Commandments monument stay on the Texas State Capitol grounds. By a 5-4 vote, the Court held that the granite monolith’s decades-long placement among 17 other monuments and 21 historical markers gave it enough secular, historical character to survive an Establishment Clause challenge. The ruling drew a line between passive religious monuments embedded in a broader historical setting and government actions that actively promote religion.1Cornell Law School. Van Orden v. Perry
The Monument and the Lawsuit
The object at issue was a six-foot-high, three-foot-wide granite monolith inscribed with the Ten Commandments, donated to Texas in 1961 by the Fraternal Order of Eagles. The state placed it on the 22-acre grounds surrounding the Capitol in Austin, where it stood alongside numerous other monuments and markers commemorating people and events in Texas history.2Justia. Van Orden v. Perry
Thomas Van Orden, a former Texas lawyer who had lost his license and become homeless, passed the monument regularly on walks to the University of Texas law library. He sued Governor Rick Perry under 42 U.S.C. § 1983, which allows individuals to sue state officials for constitutional violations, arguing that the display was an unconstitutional government endorsement of religion.3Office of the Law Revision Counsel. 42 U.S. Code 1983 – Civil Action for Deprivation of Rights The district court and the Fifth Circuit both ruled against him, and the Supreme Court took the case.2Justia. Van Orden v. Perry
The Plurality Opinion
Chief Justice Rehnquist wrote for a four-justice plurality that included Justices Scalia, Kennedy, and Thomas. His opinion leaned on the long presence of religion in American public life. Representations of the Ten Commandments, he noted, appear throughout the Supreme Court’s own building and across the nation’s capital, and the Court’s opinions have repeatedly acknowledged the Commandments’ place in the country’s legal heritage. Religious content alone, the plurality reasoned, does not doom a government display. The Texas monument was a “far more passive use” of the text than, for example, posting the Commandments in every elementary school classroom.1Cornell Law School. Van Orden v. Perry
The plurality also refused to apply the Lemon test from Lemon v. Kurtzman (1971), which had dominated Establishment Clause analysis for decades. That test asked whether a government action had a secular purpose, whether its primary effect advanced or inhibited religion, and whether it caused excessive entanglement with religion. Rehnquist called Lemon “not useful” for evaluating a passive monument and favored analyzing the display against the backdrop of the nation’s history and traditions.4Supreme Court of the United States. Van Orden v. Perry
Justice Breyer’s Deciding Vote
Justice Breyer provided the fifth vote but concurred only in the result. He called Van Orden a “difficult borderline case” where no formulaic test could replace legal judgment.4Supreme Court of the United States. Van Orden v. Perry Two practical points carried his opinion. First, the monument had stood for 40 years without a legal challenge, which he took as strong evidence that the public read its message as broadly moral and historical rather than sectarian. Second, he warned that removing longstanding religious monuments could itself look like government hostility toward religion and provoke the divisiveness the Establishment Clause was meant to prevent.5Legal Information Institute. Van Orden v. Perry – Breyer Concurrence
Because Breyer supplied the fifth vote on narrower grounds, his concurrence has often been read as the controlling opinion in the case.
The Dissent
Four justices dissented. Justice Stevens, joined by Justice Ginsburg, wrote the sharpest opinion. He argued the monument’s message was plain: “This State endorses the divine code of the ‘Judeo-Christian’ God.” He pointed to the especially large letters at the top reading “I AM the LORD thy God” as evidence that no reasonable observer could see the display as religiously neutral.6Legal Information Institute. Van Orden v. Perry – Stevens Dissent
Stevens emphasized that the Establishment Clause demands government neutrality not only between religions but between religion and nonbelief. Placing a sacred text at the seat of government, he wrote, tells nonbelievers and adherents of non-monotheistic faiths that they are outsiders in their own political community. He rejected the argument that nearby secular displays neutralized the monument’s religious force, distinguishing a permanent religious text on state property from a transient holiday display or a legislator’s private prayer.6Legal Information Institute. Van Orden v. Perry – Stevens Dissent Justice O’Connor and Justice Souter also filed dissents.2Justia. Van Orden v. Perry
The Same-Day Contrast: McCreary County v. ACLU
On the same day it decided Van Orden, the Court struck down a different Ten Commandments display in McCreary County v. ACLU of Kentucky. Two Kentucky counties had posted the Commandments in their courthouses and, after legal challenges, twice modified the displays by surrounding the text with other historical documents. Writing for a 5-4 majority, Justice Souter found that the counties’ shifting justifications made an unmistakable religious purpose obvious, and that later additions could not erase what the earlier versions had shown.7Justia. McCreary County v. ACLU of Kentucky
The Texas monument, by contrast, had been donated by a civic group, placed among many other displays, and left unchallenged for decades. Breyer sided with the majority in McCreary and concurred in Van Orden, drawing a practical line between an active government effort to promote religion and a passive historical display that had settled into its surroundings. Read together, the two cases show that the same religious text can be constitutional or not depending on purpose, setting, and history.
Why the Case Still Matters
Van Orden’s lasting contribution was elevating a history-and-tradition approach over the Lemon test. Although the plurality’s reasoning was not a binding majority opinion, its influence grew.
In 2019, the Court relied on Van Orden’s logic in American Legion v. American Humanist Association, upholding a 40-foot cross-shaped World War I memorial on public land in Bladensburg, Maryland. Even where a monument’s original purpose was “infused with religion,” the Court said, the passage of time can give it historical and cultural significance sufficient to allow it on public property. The majority warned that requiring removal of longstanding monuments “would not be viewed by many as a neutral act,” language that tracked Breyer’s Van Orden concurrence closely.8Justia. American Legion v. American Humanist Association
In 2022, Kennedy v. Bremerton School District finished what Van Orden started. The Court formally abandoned the Lemon test, saying it had “long ago” been left behind, and held that the Establishment Clause “must be interpreted by reference to historical practices and understandings.”9Supreme Court of the United States. Kennedy v. Bremerton School District The history-and-tradition framework that Rehnquist offered as an alternative to Lemon in Van Orden is now the governing standard for Establishment Clause cases nationwide.