Berkley Center

In Van Orden v. Perry, the Supreme Court upheld the constitutionality of a monument that depicted the Ten Commandments on the grounds of the Texas State Capitol. This case was decided the same day the Court held unconstitutional displays of the Ten Commandments in McCreary v. ACLU. In contrast to McCreary, in this case the Court did not apply the test it developed in Lemon v. Kurtzman. The Van Orden Court emphasized the passive nature of the monument (i.e., that it was a relatively small display located on the 22-acre grounds of the Texas State Capitol along with 17 other monuments and 21 historical markers), and focused its analysis on the nature of the exhibit and the history of government recognition of religious symbolism in America. The Court noted that many government buildings, including the Supreme Court building, contain depictions of the Ten Commandments in recognition of the role they have played in America’s heritage. In addition to the religious symbolism of the Ten Commandments, the Court noted that they have an important historical meaning as a source of law. Because Texas included other monuments on its Capitol grounds representing different aspects of its political and legal history, the Ten Commandments had a secular significance that appeared to outweigh the religious one. The distinctions between McCreary and Van Orden highlight the highly contextual nature of the Court’s analysis when it comes to public religious displays.