Van Orden v. Perry

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS November 12, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III

Clerk

No. 02-51184

THOMAS VAN ORDEN

Plaintiff-Appellant,

versus

RICK PERRY, in his official capacity as

Governor of Texas and Chairman,

State Preservation Board;

DAVID DEWHURST, in his official capacity

as Co-Vice Chairman, State Preservation Board

and President of the Senate of Texas;

TOM CRADDICK, in his official capacity

as Co-Vice Chairman, State Preservation Board

and Speaker of the House of Representatives of Texas;

CHRIS HARRIS, in his official capacity

as Member of the State Preservation Board;

PEGGY HAMRICK, in her official capacity

as Member of the State Preservation Board;

JOCELYN LEVI STRAUS, in her official capacity

as Member of the Texas Preservation Board;

CHARLYNN DOERING, in her official capacity

as Interim Executive Director, State Preservation Board,

Defendants-Appellees.

Appeal from the United States District Court

For the Western District of Texas

Before HIGGINBOTHAM, STEWART, and PRADO, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

The plaintiff, Thomas Van Orden, asks the federal courts to

order the State of Texas to remove from the grounds of the State

Capitol a granite monument in which the Ten Commandments are

etched. In a bench trial, the district court considered documents,

testimony, and an extensive stipulation of facts filed by the

parties. In a careful opinion, the court rejected the claim of

First Amendment violations and entered judgment for the State. The

plaintiff appeals. We affirm.

I

The Capitol, with its surrounding twenty-two acres, was

dedicated on May 16, 1888. The first monument was erected on these

grounds three years later. It was “a bronze statue of a Texan

holding a muzzle-loading rifle atop a Texas Sunset Red granite

base.” Names of the Texans who died in the battle of the Alamo are

inscribed on its four granite supports. Sixteen additional

monuments have since been erected on the capitol grounds, a

protected National Historic Landmark maintained by the State

Preservation Board.1

The Visitor Services of the State provides tours of the

Capitol Building with its historic statuary, portraits, and

memorabilia, and it publishes a written guide for walking tours of

1

The parties stipulated that “the Capitol, together with its

grounds and the monuments erected and maintained there, constitute

a National Historic Landmark.” They also stipulated that “the Ten

Commandments monument is an element of a legally-protected National

Historic Landmark.”

2

the grounds for visitors who wish to continue with the outdoor

displays. The guided tour of the Capitol Building offers a wide

array of monuments, plaques, and seals depicting both the secular

and religious history of Texas. They include a tribute to African

American legislators, a Confederate plaque, a plaque commemorating

the donors of the granite for the building, and a plaque

commemorating the war with Mexico. There is a Six Flags Over Texas

display on the floor of the Capitol Rotunda featuring the Mexican

Eagle and serpent - which as visitors will learn, is a symbol of

Aztec prophecy - together with the Confederate Seal containing the

inscription “Deo Vindice” (God will judge). Should the tour

continue to the Supreme Court Building, visitors will find

inscribed above the bench the phrase “Sicut Patribus, Sit Deus

Nobis” (As God was to our fathers, may He also be to us). Before

reaching the Supreme Court building from the Capitol, visitors will

encounter four other monuments in the immediate vicinity: a tribute

to Texas children; a statue of a pioneer woman holding a child in

tribute to the role of women in Texas history; a replica of the

Statue of Liberty; and a tribute to the Texans lost at Pearl

Harbor.

The Ten Commandments monument was a gift of the Fraternal

Order of Eagles, accepted by a joint resolution of the House and

Senate in early 1961. It is a granite monument approximately six

feet high and three and a half feet wide. In the center of the

monument, a large panel displays a nonsectarian version of the text

3

of the Commandments. Above this text, the monument contains

depictions of two small tablets with ancient Hebrew script. There

are also several symbols etched into the monument: just above the

text, there is an American eagle grasping the American flag; higher

still, there is an eye inside a pyramid closely resembling the

symbol displayed on the one-dollar bill. Just below the text are

two small Stars of David, as well as a symbol representing Christ:

two Greek letters, Chi and Rho, superimposed on each other. Just

below the text of the commandments, offset in a decorative, scroll-

shaped box, the monument bears the inscription: “PRESENTED TO THE

PEOPLE AND YOUTH OF TEXAS BY THE FRATERNAL ORDER OF EAGLES OF TEXAS

1961.”

The parties stipulated that (1) the sparse legislative history

“contain[s] no record of any discussion about the monument, or the

reasons for its acceptance, and is comprised entirely of House and

Senate Journal entries”; (2) the State selected the site on the

recommendation of the Building Engineering and Management Division

of the State Board of Control; (3) the expenses “were borne

exclusively by the Eagles”; (4) the monument requires virtually no

maintenance; and (5) the dedication of the monument was presided

over by Senator Bruce Reagan and Representative Will Smith. There

is no official record that any other person participated.

The main entry into the Capitol Building is on its south side

facing Congress Street. The monument displaying the Ten

Commandments is located on the north side of the Capitol Building

4

on a line drawn between the Supreme Court and the Capitol Rotunda,

about 75 feet from the Capitol Building, and 123 feet from the

Supreme Court Building.

II

The plaintiff argues that Texas “accepted” the monument “for

the purpose of promoting the Commandments as a personal code of

conduct for youths and [b]ecause the Commandments are a sectarian

religious code, their promotion and endorsement by the State as a

personal code contravenes the First Amendment.” He asserts that

the district court’s finding that the State had a secular purpose

for the display is not supported by the evidence and that a

reasonable viewer would perceive the display of the decalogue as a

State advancement and endorsement of religion favoring the Jewish

and Christian faiths.

The State replies that the display serves a secular purpose as

found by the district court and a reasonable observer would not

conclude that the State is seeking to advance, endorse, or promote

religion by its display. To the contrary, the State observes that

the display has been in place without legal attack for over forty-

two years and, viewed in context, is part of the state’s

commemorative display of significant events and strands of Texas

history. It argues that a reasonable person touring the Capitol

Building and its historical grounds would not see the display of

the decalogue as State endorsement of religion. Rather, with its

simple presentation and location between the Capitol Building and

5

the Texas Supreme Court Building, a reasonable viewer would see the

monument as a recognition of the large role of the decalogue in the

development of Texas law. Equally, with its proximity to the

pioneer woman holding a child and to the figures of children at

play, it would be seen as a fit location to express appreciation

for the work of the Eagles with American youth.

III

Through the Fourteenth Amendment, Texas is controlled by the

command of the First Amendment that it “shall make no law

respecting an establishment of religion.”2 In its thirty-two year

life, Lemon v. Kurtzman3 has been criticized but remains a required

starting point in deciding contentions that state displays of

symbols and writings with a religious message are contrary to the

First Amendment. Its three-part test requires that a court

consider (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.4 A challenged

activity must survive each prong to pass constitutional scrutiny.

The plaintiff here concedes that excessive entanglement, the third

inquiry, is not an issue in this case. We need only consider,

2

U.S. CONST. amend. I, cl. 1.

3

403 U.S. 602 (1971).

4

Edwards v. Aguillard, 482 U.S. 578, 583 (1987).

6

then, whether Texas lacked a secular purpose and whether the

primary effect of the display is to advance religion.

In refining these two tests, the Supreme Court has interpreted

the First Amendment to prohibit government action that has either

the purpose or effect of endorsing or disapproving of religion.5

A display has the purpose of endorsing religion when it “‘convey[s]

or attempt[s] to convey a message that religion or a particular

religious belief is favored or preferred.’”6 And to determine

whether it has the effect of endorsing religion we ask “what

viewers may fairly understand to be the purpose of the display.”7

This is the observation of a reasonable observer, not of the

uninformed, the casual passerby, the heckler, or the reaction of

a single individual. Rather, the reasonable observer standard

attempts to capture the “concern with the political community writ

large.”8

5

County of Allegheny v. Am. Civil Liberties Union, 492 U.S.

573, 600-01 (1989); Lynch v. Donnelly, 465 U.S. 668, 690 (1984)

(O’Connor, J., concurring).

6

Allegheny, 492 U.S. at 593 (quoting Wallace v. Jaffree, 472

U.S. 38, 70 (1985) (O'Connor, J., concurring)).

7

Allegheny, 492 U.S. at 595 (quoting Lynch, 465 U.S. at 692

(O’Connor, J., concurring)).

8

See Capitol Square Review and Advisory Bd. v. Pinette, 515

U.S. 753, 779-780 (1995) (O’Connor, J., concurring in part and

concurring in judgment) (“[B]ecause our concern is with the

political community writ large, the endorsement inquiry is not

about the perceptions of particular individuals or saving isolated

nonadherents from . . . discomfort. . . . It is for this reason

that the reasonable observer in the endorsement inquiry must be

deemed aware of the history and context of the community and forum

7

The guiding principle is government neutrality toward religion

in the sense that a state cannot favor religion over non-religion

or one religion over another. Yet neutrality is not self-defining.

It does not demand that the state be blind to the pervasive

presence of strongly held views about religion with myriad faiths

and doctrines. Nor could it do so. Religion and government cannot

be ruthlessly separated without encountering other First Amendment

constraints, including its guaranty of the free exercise of

religion. Such hostility toward religion is not only not required;

it is proscribed.9 Justice Kennedy’s observation in Allegheny

bears emphasis: it is not the case that the Establishment Clause is

so inelastic as to not “permit government some latitude in

recognizing and accommodating the central role religion plays in

our society.”10 It is equally important to remember Justice

Goldberg’s famous observation:

Neither government nor this Court can or should ignore

the significance of the fact that a vast portion of our

people believe in and worship God and that many of our

legal, political and personal values derive historically

from religious teachings. Government must inevitably

take cognizance of the existence of religion. . . .11

in which the religious [speech takes place].”); Good News Club v.

Milford Cent. Sch., 533 U.S. 98, 119 (2001).

9

See Lynch, 465 U.S. at 673.

10

Allegheny, 492 U.S. at 657 (Kennedy, J., concurring in part

and dissenting in part).

11

School Dist. of Abington Township v. Schempp, 374 U.S. 203,

306 (1962) (Goldberg, J., concurring).

8

In sum, we recognize that proper application of First

Amendment principles demands a sense of proportion and that our

inquiry is fact-sensitive. Ultimately, we have the delicate task

of placing this display of the decalogue in its full setting. We

turn to that task, asking first if the Texas Legislature had a

valid secular purpose for authorizing the installation of the

monument. We will then examine whether the activity’s primary

effect advances or inhibits religion.

IV

A

The district court found that the purpose of the legislature

was “to recognize and commend a private organization for its

efforts to reduce juvenile delinquency.” It gleaned this purpose

from the reason stated in the Resolution granting the Eagles

permission to erect the monument. The plaintiff concedes that this

recited purpose is a valid secular purpose, but contends that it

was not the true purpose. Rather, he argues that monuments “are

not erected to honor donors and they are not erected to pay tribute

[to] their acts of donation. They are erected to pay tribute to

and honor the subject or ideal depicted.”

The Legislature, of course, cannot dictate the finding of

secular purpose by a bland recitation. The finding of the district

court here, however, rests on two powerful realities. First, there

is nothing in either the legislative record or the events attending

the monument’s installation to contradict the secular reasons laid

9

out in the legislative record, brief as it is; there is nothing to

suggest that the Legislature did not share the concern about

juvenile delinquency.12 Second, Texas has a record of honoring the

contributions of donors and those they represent, contrary to

plaintiff’s unsupported argument. For example, ten years before

its resolution accepting the Ten Commandments monument, the

Legislature authorized the Boy Scouts of America to install a

replica of the Statue of Liberty. The Legislature stated that it

did so “in honor of the Boy Scouts of America.” The resolution’s

preamble explained that “nothing has been done to honor the youth

of Texas who are members of the Boy Scouts.” Whether or not this

legislative history would support a finding that the Legislature

acted with only a secular purpose, the record supports the finding

of the district court that the Texas Legislature had a valid

secular purpose in authorizing the placement of the Ten

Commandments monument. There is nothing to suggest that the

recited reason was a sham, and the State’s treatment of other

monuments on the Capitol grounds belies any such suggestion.

Without more, then, the recited legislative purpose should be

accepted.13

12

For an example of the decalogue’s installation coupled with

religious ceremony, see Books v. City of Elkhart, Indiana, 235 F.3d

292, 306 (7th Cir. 2000), cert. denied, 532 U.S. 1058 (2001).

13

Wallace, 472 U.S. at 74-75; see also Mueller v. Allen, 463

U.S. 388, 394-395 (1983) (expressing “reluctance to attribute

unconstitutional motives to the states, particularly when a

plausible secular purpose for the state’s program may be discerned

10

The plaintiff here argues that there is more. It can hardly

be gainsaid, he contends, that in honoring the work of the Eagles

in curbing juvenile misconduct by its resolution, the Texas

Legislature endorsed the decalogue as a common code of conduct and

implicitly promoted its religious message. This is half right.

The plaintiff’s contention here forgets that the Commandments have

a secular dimension as well as a religious meaning. The plaintiff

presumes both that its use by the Eagles was religious and that

authorizing the installation of the monument itself endorsed that

religious message.

The plaintiff’s argument rests heavily upon the decision of

the Seventh Circuit in Books v. City of Elkhart, Indiana.14 In

Books, there was evidence, found significant by the majority of its

panel, that the purpose of the City of Elkhart was to promote the

decalogue as a religious statement. The court found the City’s

statement of secular purpose suspect because it was adopted on the

eve of litigation in an effort to escape scrutiny under the First

Amendment. The Texas Resolution came in 1961 and was supported by

statements honoring the efforts of the donor. Unlike Books, there

was no religious service attending the acceptance of the monument

in Texas. The record shows that only two state legislators

attended. There is no evidence of any religious invocations or

from the face of the statute.”).

14

235 F.3d 292, 306 (7th Cir. 2000), cert. denied, 532 U.S.

1058 (2001).

11

that any minister, rabbi, or priest were even present. Nor is the

context in which the Commandments is displayed here similar to the

display in Books.15 We are not persuaded that the Resolution of the

Texas Legislature in 1961 was a sham.

B

Our conclusion that the legislative authorization was

supported by a valid secular purpose is reinforced by the related

but distinct inquiry whether the primary effect of the display

advances or inhibits religion as seen from the eyes of a reasonable

observer, informed and aware of his surroundings.

The Ten Commandments have both a religious and secular

message. Given this duality, our effects inquiry must focus on

the specific facts and context of the display. As Justice Blackmun

explained in Allegheny:

[T]he effect of the display depends upon the message that

the government’s practice communicates: the question is

“what viewers may fairly understand to be the purpose of

the display.” That inquiry, of necessity, turns upon the

context in which the contested object appears: “[A]

typical museum setting, though not neutralizing the

religious content of a religious painting, negates any

message of endorsement of that content.”16

15

As we discuss in greater detail below, the context in which

the Ten Commandments is displayed on the Capitol grounds is

different from that at issue in Books, and this unique context

negates any sense that the state is endorsing or promoting the

decalogue’s religious, as opposed to its secular, aspects.

16

Allegheny, 492 U.S. at 595 (citing Lynch v. Donnelly, 465

U.S. at 687 (O’Connor, J., concurring, embracing Justice O’Connor’s

concurring opinion in Lynch)).

12

Returning to our earlier description of the Capitol, we note

first that the grounds are designated as a National Historic

Landmark that is dedicated to the display of “statues, memorials,

and commemorations of people, ideals and events that compose Texan

identity; these displays document the struggles and the successes

that Texans have experienced in the past and serve to inspire us as

we face the challenges of today.”17 The State points to the replica

of the Seal of Mexico displayed on the tour path of the Capitol,

reminding that it “acknowledges the mystical traditions of the

indigenous people of the Southwest, who were displaced by a

religious Catholic regime for some 300 years.”

Relatedly, the State suggests that the decalogue in Texas is

displayed in a museum setting. The State points out that the

Curator of the Capitol is a professional museum curator, with an

advanced degree in museum science and the Texas State Preservation

Board qualifies as a museum as defined by federal statute.18 The

State Preservation Board, created in 1983, is an agency of the

State of Texas and has broad authority over the Capitol Building

17

See H. Con. Res. 38, 77th Leg., R.S. (2001).

18

“Museum means a public or private nonprofit agency or

institution organized on a permanent basis for essentially

educational or aesthetic purposes that utilizes a professional

staff, owns or utilizes tangible objects, cares for the tangible

objects, and exhibits the tangible objects to the public on a

regular basis.” 20 U.S.C. § 9172 (2003).

13

and grounds.19 It employs, among others, three professional

curators with graduate degrees in history and museum science. They

maintain the historic artifacts of the Capitol Collection,

including an art collection with an estimated value of twenty to

thirty million dollars. This department oversees the monuments and

offers educational programs and brochures, including guided tours

of the Capitol Building.

We need not accept the State’s museum analogy in full measure

to acknowledge that, while short of the museum envisioned by

Justice O’Connor, a setting which would wholly negate endorsement,

the manner in which the seventeen monuments are presented on the

grounds portion of the Capitol tour supports the conclusion that a

reasonable viewer would not see this display either as a State

endorsement of the Commandment’s religious message or as excluding

those who would not subscribe to its religious statements.20

19

TEX. GOV’T CODE ANN. §§ 443.001-443.028 (Vernon 1998 & Supp.

2004).

20

A visitor to the Capitol would receive a brochure including

“A Self-Guided Tour” with a map showing the location of the

seventeen monuments. It includes a brief description of each

monument, starting with Hood’s Texas Brigade, which “was erected in

1910 by surviving comrades and friends.” Similar paragraphs follow

for each monument. Number 9 reads: “THE TEN COMMANDMENTS–Erected

1961 by the Fraternal Order of Eagles of Texas. Hewn from Texas

granite in the traditional shape of the biblical stones and

inscribed with the Ten Commandments, the monument was presented to

the people and youth of Texas.”

14

Even those who would see the decalogue as wise counsel born of

man’s experience rather than as divinely inspired religious

teaching cannot deny its influence upon the civil and criminal laws

of this country. That extraordinary influence has been repeatedly

acknowledged by the Supreme Court and detailed by scholars.

Equally so is its influence upon ethics and the ideal of a just

society. A reasonable viewer must also be aware of the placement

of the monument at a point on the direct line between the

legislative chambers, the executive office of the governor, and the

Supreme Court Building. It is plainly linked with those houses of

the law while standing apart and not physically connected to any of

them. The decalogue is presented as relevant to these law-giving

instruments of State government, but from a distance.

In 1993, the State Preservation Board had to decide where to

locate the monument following a Capitol construction project that

had required the removal of many monuments. The Board’s executive

director, in uncontroverted testimony at trial, explained that the

decalogue’s location was carefully chosen by the Board’s

professional staff to reflect the role of the Commandments in the

making of law. The only change in where the monument had been

located since 1961 was to turn it to face a different direction.

The professional judgment of these trained museum curators, made

ten years before any litigation, is relevant to our question of

effect, as well as to our acceptance of the State’s secular purpose

in displaying the Commandments. But even if the evidence of the

15

efforts in 1993 were disregarded, it would not diminish the

explanatory power of the location where the monument was placed in

1961 and has since resided.

V

History matters here. For forty-two years, the monument has

stood in Austin without the filing of any legal complaint. This

quiescence is remarkable for Travis County, the seat of state

government and the home of the University of Texas, whose campus is

a stone’s throw away from the Capitol grounds. This Court is well

aware that Travis County is not lacking in persons willing and able

to seek judicial relief from perceived interferences with

constitutional rights.21 Had this monument been recently installed,

the inference of religious purpose would have been stronger. That

it has been in place for so long adds force to the contention that

the legislature had a secular purpose. As Judge Becker observed:

The reasonable observer would perceive an historic plaque

as less of an endorsement of religion than a more recent

religious display not because the Ten Commandments have

lost their religious significance, but because the

maintenance of this plaque sends a much different message

about the religious views of the County. . . . The

reasonable observer, knowing the age of the . . . plaque,

would regard the decision to leave it in place as

21

See e.g. O’Hair v. Murray, 588 F.2d 1144 (5th Cir. 1979)

(addressing a constitutional challenge to the motto “In God We

Trust”); Murray v. City of Austin, Texas, 947 F.2d 147 (5th. Cir

1991) (examining a claim that the inclusion of a Christian cross in

the insignia of the City of Austin violated the Establishment and

Free Exercise Clauses).

16

motivated, in significant part, by the desire to preserve

a longstanding plaque.22

In sum, we are persuaded that Texas does not violate the First

Amendment by retaining a forty-two-year-old display of the

decalogue. The Ten Commandments monument is part of a display of

seventeen monuments, all located on grounds registered as a

historical landmark, and it is carefully located between the

Supreme Court Building and the Capitol Building housing the

legislative and executive branches of government. We are not

persuaded that a reasonable viewer touring the Capitol and its

grounds, informed of its history and its placement, would conclude

that the State is endorsing the religious rather than the secular

message of the decalogue.

To say this is not to diminish the reality that it is a sacred

text to many, for it is also a powerful teacher of ethics, of wise

counsel urging a regiment of just governance among free people.

The power of that counsel is evidenced by its expression in the

civil and criminal laws of the free world. No judicial decree can

erase that history and its continuing influence on our laws – there

is no escape from its secular and religious character. There is no

constitutional right to be free of government endorsement of its

own laws. Certainly, we disserve no constitutional principle by

concluding that a State’s display of the decalogue in a manner that

22

Freethought Soc. of Greater Philadelphia v. Chester County,

334 F.3d 247, 265 (3rd Cir. 2003).

17

honors its secular strength is not inevitably an impermissible

endorsement of its religious message in the eyes of our reasonable

observer. To say otherwise retreats from the objective test of an

informed person to the heckler’s veto of the unreasonable or ill-

informed - replacing the sense of proportion and fit with

uncompromising rigidity at a costly price to the values of the

First Amendment. A display of Moses with the Ten Commandments such

as the one located in the United States Supreme Court building

makes a plain statement about the decalogue’s divine origin. Yet

in context even that message does not drown its secular message.

So it is here.

AFFIRMED.

18