OPINION OF REHNQUIST, C.&NBSP;J. VAN ORDEN V. PERRY 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1500 THOMAS VAN ORDEN, PETITIONER v. RICK
PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN,
STATE PRESERVATION BOARD, et al.

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[June 27, 2005]

															   Chief Justice Rehnquist announced
the judgment of the Court and delivered an opinion, in which
Justice Scalia, Justice Kennedy, and Justice Thomas join.

															   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. (2001).[ Footnote 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 “PRESENTED TO THE PEOPLE AND YOUTH OF TEXAS BY THE
FRATERNAL ORDER OF EAGLES OF TEXAS 1961.” App. to Pet. for Cert.
21.

															   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, 42 U. S. C. §1983, seeking
both a declaration that the monument’s placement violates the
Establishment Clause and an injunction requiring its removal. After
a bench trial, the District Court held that the monument did not
contravene the Establishment Clause. It found that the State had a
valid secular purpose in recognizing and commending the Eagles for
their efforts to reduce juvenile delinquency. The District Court
also determined that a reasonable observer, mindful of the history,
purpose, and context, would not conclude that this passive monument
conveyed the message that the State was seeking to endorse
religion. The Court of Appeals affirmed the District Court’s
holdings with respect to the monument’s purpose and effect. 351
F. 3d 173 (CA5 2003). We granted certiorari, 543 U. S. ___
(2004), and now affirm.

															   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.[ Footnote 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 responsibility to
maintain a division between church and state nor evince a hostility
to religion by disabling the government from in some ways
recognizing our religious heritage:

															“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”).[ Footnote 3 ]

															   These two faces are evident in representative
cases both upholding[ Footnote
4 ] and invalidating[ Footnote
5 ] laws under the Establishment Clause. Over the last 25 years,
we have sometimes pointed to Lemon v. Kurtzman , 403 U. S. 602 (1971), as providing the governing test in Establishment Clause
challenges.[ Footnote 6 ] Compare Wallace v. Jaffree, 472 U. S. 38 (1985) (applying Lemon ), with Marsh v. Chambers, 463 U. S. 783 (1983) (not applying Lemon ). Yet, just two years after Lemon was
decided, we noted that the factors identified in Lemon serve as “no more than helpful signposts.” Hunt v. McNair, 413
U. S. 734 , 741 (1973). Many of our recent cases simply have not
applied the Lemon test. See, e.g. , Zelman v. Simmons-Harris, 536 U. S. 639 (2002); Good News
Club v. Milford Central School, 533 U. S. 98 (2001). Others have
applied it only after concluding that the challenged practice was
invalid under a different Establishment Clause test.

															   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 grateful hearts, the many and
signal favors of Almighty God.” 1 Annals of Cong. 90, 914.
President Washington’s proclamation directly attributed to the
Supreme Being the foundations and successes of our young
Nation:

															   “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).[ Footnote
7 ] This recognition has led us to hold that the Establishment
Clause permits a state legislature to open its daily sessions with
a prayer by a chaplain paid by the State. Marsh v. Chambers , 463 U. S., at 792.[ Footnote 8 ] Such a practice, we thought, was “deeply
embedded in the history and tradition of this country.” Id. , at 786. As we observed there, “it would be
incongruous to interpret [the Establishment Clause] as imposing
more stringent First Amendment limits on the states than the
draftsmen imposed on the Federal Government.” Id. , at
790–791. With similar reasoning, we have upheld laws, which
originated from one of the Ten Commandments, that prohibited the
sale of merchandise on Sunday. McGowan v. Maryland, 366 U. S. 420 , 431–440
(1961); see id ., at 470–488 (separate opinion of
Frankfurter, J.).

															   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 played 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.

															   Similar acknowledgments can be seen throughout
a visitor’s tour of our Nation’s Capital. For example, a large
statue of Moses holding the Ten Commandments, alongside a statue of
the Apostle Paul, has overlooked the rotunda of the Library of
Congress’ Jefferson Building since 1897. And the Jefferson
Building’s Great Reading Room contains a sculpture of a woman
beside the Ten Commandments with a quote above her from the Old
Testament (Micah 6:8). A medallion with two tablets depicting the
Ten Commandments decorates the floor of the National Archives.
Inside the Department of Justice, a statue entitled “The Spirit of
Law” has two tablets representing the Ten Commandments lying at its
feet. In front of the Ronald Reagan Building is another sculpture
that includes a depiction of the Ten Commandments. So too a
24-foot-tall sculpture, depicting, among other things, the Ten
Commandments and a cross, stands outside the federal courthouse
that houses both the Court of Appeals and the District Court for
the District of Columbia. Moses is also prominently featured in the
Chamber of the United States House of Representatives.[ Footnote 9 ]

															   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 opinion of Frankfurter,
J.).[ Footnote 10 ] The
Executive and Legislative Branches have also acknowledged the
historical role of the Ten Commandments. See, e.g. , Public
Papers of the Presidents, Harry S. Truman, 1950, p. 157 (1965); S.
Con. Res. 13, 105th Cong., 1st Sess. (1997); H. Con. Res. 31, 105th
Cong., 1st Sess. (1997). These displays and recognitions of the Ten
Commandments bespeak the rich American tradition of religious
acknowledgments.

															   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 prayer cases, id. , at 41–42 (citing School Dist. of Abington
Township v. Schempp, 374 U. S. 203 (1963), and Engel v. Vitale, 370
U. S. 421 (1962)), it stands as an example of the fact that we
have “been particularly vigilant in monitoring compliance with the
Establishment Clause in elementary and secondary schools,” Edwards v. Aguillard, 482 U. S. 578 , 583–584 (1987). Compare Lee v. Weisman, 505 U. S. 577 , 596–597 (1992) (holding
unconstitutional a prayer at a secondary school graduation), with Marsh v. Chambers, supra (upholding a prayer in
the state legislature). Indeed, Edwards v. Aguillard recognized that Stone —along with Schempp and Engel —was a consequence of the
“particular concerns that arise in the context of public elementary
and secondary schools.” 482 U. S., at 584–585. Neither Stone itself nor subsequent opinions have indicated that Stone ’s holding would extend to a legislative chamber, see Marsh v. Chambers, supra , or to capitol
grounds.[ Footnote 11 ]

															   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 her 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 group has a dual significance,
partaking of both religion and government. We cannot say that
Texas’ display of this monument violates the Establishment Clause
of the First Amendment.

															   The judgment of the Court of Appeals is
affirmed.

															It is so ordered. Footnote 1 The monuments are: Heroes of the Alamo,
Hood’s Brigade, Confederate Soldiers, Volunteer Fireman, Terry’s
Texas Rangers, Texas Cowboy, Spanish-American War, Texas National
Guard, Ten Commandments, Tribute to Texas School Children, Texas
Pioneer Woman, The Boy Scouts’ Statue of Liberty Replica, Pearl
Harbor Veterans, Korean War Veterans, Soldiers of World War I,
Disabled Veterans, and Texas Peace Officers. Footnote 2 See also Engel v. Vitale, 370
U. S. 421 , 434 (1962) (“The history of man is inseparable from
the history of religion”); Zorach v. Clauson, 343 U. S. 306 , 313 (1952) (“We are a
religious people whose institutions presuppose a Supreme
Being”). Footnote 3 Despite Justice Stevens’ recitation of
occasional language to the contrary, post , at 4–5, and n.
7 (dissenting opinion), we have not, and do not, adhere to the
principle that the Establishment Clause bars any and all
governmental preference for religion over irreligion. See, e.g. , Cutter v. Wilkinson , 544 U. S. __
(2005); Corporation of Presiding Bishop of Church of Jesus
Christ of Latter&nbhyph;day Saints v. Amos, 483 U. S. 327 (1987); Lynch v. Donnelly , 465 U. S. 668 (1984); Marsh v. Chambers, 463 U. S. 783 (1983); Walz v. Tax Comm’n of City of New York, 397 U. S. 664 (1970). Even the
dissenters do not claim that the First Amendment’s Religion Clauses
forbid all governmental acknowledgments, preferences, or
accommodations of religion. See post , at 6 (opinion of
Stevens, J.) (recognizing that the Establishment Clause permits
some “recognition” or “acknowledgment” of religion); post ,
at 5, and n. 4 (opinion of Souter, J.) (discussing a number of
permissible displays with religious content). Footnote 4 Zelman v. Simmons-Harris , 536 U. S. 639 (2002) (upholding school
voucher program); Good News Club v. Milford Central
School, 533 U. S. 98 (2001) (holding that
allowing religious school groups to use school facilities does not
violate the Establishment Clause); Agostini v. Felton , 521
U. S. 203 (1997) (approving a program that provided public
employees to teach remedial classes at religious and other private
schools), overruling Aguilar v. Felton , 473 U. S. 402 (1985)
(barring public school teachers from going to parochial schools to
provide remedial education to disadvantaged children), and School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985)
(striking down a program that provided classes to religious school
students at public expense in classrooms leased from religious
schools); Rosenberger v. Rector and Visitors of Univ.
of Va. , 515 U. S. 819 (1995) (holding that the
Establishment Clause does not bar disbursement of funds from
student activity fees to religious organizations); Zobrest v. Catalina Foothills School Dist. , 509 U. S. 1 (1993)
(allowing a public school district to provide a sign-language
interpreter to a deaf student at a Catholic high school as part of
a federal program for the disabled); Lynch v. Donnelly, supra (upholding a Christmas display including a
crčche); Marsh v. Chambers, supra (upholding legislative prayer); Mueller v. Allen , 463 U. S. 388 (1983) (upholding tax deduction for certain expenses incurred in
sending one’s child to a religious school). Footnote 5 Santa Fe Independent School Dist. v. Doe , 530 U.
S. 290 (2000) (holding unconstitutional student-initiated and
student-led prayer at school football games); Board of Ed. of
Kiryas Joel Village School Dist. v. Grumet , 512 U. S. 687 (1994) (invalidating a state law that created a new school district
for a single religious community); Lee v. Weisman , 505 U. S. 577 (1992) (prohibiting
officially sponsored graduation prayers); County of
Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573 (1989)
(holding the display of a crčche in a courthouse
unconstitutional but allowing the display of a menorah outside a
county building); Texas Monthly, Inc. v. Bullock , 489 U. S. 1 (1989)
(plurality opinion) (invalidating a sales tax exemption for all
religious periodicals); Edwards v. Aguillard , 482 U. S. 578 (1987) (invalidating a
law mandating the teaching of creationism if evolution was taught); Estate of Thornton v. Caldor, Inc. , 472 U. S. 703 (1985)
(invalidating state law that gave employees an absolute right not
to work on their Sabbath); Wallace v. Jaffree , 472 U. S. 38 (1985) (invalidating law
mandating a daily minute of silence for meditation or voluntary
prayer). Footnote 6 Lemon sets out a three-prong test:
“First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that neither
advances nor inhibits religion; finally, the statute must not
foster ‘an excessive government entanglement with religion.’ ”
403 U. S., at 612–613 (citation omitted). Footnote 7 See also Elk Grove Unified School
Dist. v. Newdow , 542 U. S. 1 , 26 (2004)
(Rehnquist, C. J., concurring in judgment) (“Examples of
patriotic invocations of God and official acknowledgments of
religion’s role in our Nation’s history abound”); id. , at
35–36 (O’Connor, J., concurring in judgment) (“It is unsurprising
that a Nation founded by religious refugees and dedicated to
religious freedom should find references to divinity in its
symbols, songs, mottoes, and oaths”); Lynch v. Donnelly, 465 U. S., at 675 (“Our history is replete with
official references to the value and invocation of Divine
guidance”). Footnote 8 Indeed, we rejected the claim that an
Establishment Clause violation was presented because the prayers
had once been offered in the Judeo-Christian tradition: In Marsh , the prayers were often explicitly Christian, but
the chaplain removed all references to Christ the year after the
suit was filed. 463 U. S., at 793–794, and n. 14. Footnote 9 Other examples of monuments and buildings
reflecting the prominent role of religion abound. For example, the
Washington, Jefferson, and Lincoln Memorials all contain explicit
invocations of God’s importance. The apex of the Washington
Monument is inscribed “Laus Deo,” which is translated to mean
“Praise be to God,” and multiple memorial stones in the monument
contain Biblical citations. The Jefferson Memorial is engraved with
three quotes from Jefferson that make God a central theme.
Inscribed on the wall of the Lincoln Memorial are two of Lincoln’s
most famous speeches, the Gettysburg Address and his Second
Inaugural Address. Both inscriptions include those speeches’
extensive acknowledgments of God. The first federal monument, which
was accepted by the United States in honor of sailors who died in
Tripoli, noted the dates of the fallen sailors as “the year of our
Lord, 1804, and in the 28 year of the independence of the United
States.” Footnote 10 See also Edwards v. Aguillard, 482 U. S., at 593–594; Lynch v. Donnelly, 465 U. S., at 677–678; id. , at 691
(O’Connor, J., concurring); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh
Chapter, 492 U. S., at 652–653 (Stevens, J., concurring in
part and dissenting in part); Stone v. Graham, 449 U. S. 39 , 45 (1980) (Rehnquist, J.,
dissenting). Footnote 11 Nor does anything suggest that Stone would extend to displays of the Ten Commandments that lack a
“plainly religious,” “pre-eminent purpose,” id., at 41.
See Edwards v. Aguillard, supra , at
593–594 (“ [Stone] did not mean that no use could ever be
made of the Ten Commandments, or that the Ten Commandments played
an exclusively religious role in the history of Western
Civilization”). Indeed, we need not decide in this case the extent
to which a primarily religious purpose would affect our analysis
because it is clear from the record that there is no evidence of
such a purpose in this case. 545 U. S. ____ (2005) 545 U. S. ____ (2005) 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1500 THOMAS VAN ORDEN, PETITIONER v. RICK
PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN,
STATE PRESERVATION BOARD, et al.

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[June 27, 2005]

															   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
1–11 (Scalia, J., dissenting). THOMAS, J., CONCURRING VAN ORDEN V. PERRY 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1500 THOMAS VAN ORDEN, PETITIONER v. RICK
PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN,
STATE PRESERVATION BOARD, et al.

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[June 27, 2005]

															   Justice Thomas, concurring.

															   The Court holds that the Ten
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 10. He properly recognizes the role of religion
in this Nation’s history and the permissibility of government
displays acknowledging that history. Ante , at 6–8. 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 Establishment Clause challenges,* and return to the
original meaning of the Clause. I have previously suggested that
the Clause’s text and history “resis[t] incorporation” against the
States. See Elk Grove Unified School Dist. v. Newdow , 542
U. S. 1 , 46, (2004) (opinion concurring in judgment); see also Zelman v. Simmons-Harris , 536 U. S. 639 , 677–680,
and n. 3 (2002) (opinion concurring). If the Establishment Clause
does not restrain the States, then it has no application here,
where only state action is at issue.

															   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. ___
, ___, n. 3 (2005) (slip op., at 3, n. 3) (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 ___ (slip
op., at 4) (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 free from coercive state establishments.” Newdow , supra , at 53 (Thomas, J., concurring in
judgment).

															   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 courthouse have successfully challenged as an Establishment
Clause violation a sign at the courthouse alerting the public that
the building was closed for Good Friday and containing a 4-inch
high crucifix. Granzeier v. Middleton , 955
F. Supp. 741, 743, and n. 2, 746–747 (ED Ky. 1997), aff’d
on other grounds, 173 F. 3d 568, 576 (CA6 1999). Similarly, a
park ranger has claimed that a cross erected to honor World War I
veterans on a rock in the Mojave Desert Preserve violated the
Establishment Clause, and won. See Buono v. Norton , 212 F. Supp. 2d 1202, 1204–1205, 1215–1217
(CD Cal. 2002). If a cross in the middle of a desert establishes a
religion, then no religious observance is safe from challenge.
Still other suits have charged that city seals containing religious
symbols violate the Establishment Clause. See, e.g. , Robinson v. Edmond , 68 F. 3d 1226 (CA10
1995); Murray v. Austin , 947 F. 2d 147 (CA5
1991); Friedman v. Board of Cty. Comm’rs of Bernalillo
Cty. , 781 F. 2d 777 (CA10 1985) (en banc). In every
instance, the litigants are mere “[p]assersby … free to ignore
[such symbols or signs], or even to turn their backs, just as they
are free to do when they disagree with any other form of government
speech.” County of Allegheny v. American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 , 664 (1989) (Kennedy,
J., concurring in part and dissenting in part).

															   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); 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 phrase “one Nation under God.” The declaration that
our country is “ ‘one Nation under God’ ” necessarily
“entail[s] an affirmation that God exists.” Newdow , supra , at 48 (Thomas, J., concurring in judgment). This
phrase is thus anathema to those who reject God’s existence and a
validation of His existence to those who accept it. Telling either
nonbelievers or believers that the words “under God” have no
meaning contradicts what they know to be true. Moreover, repetition
does not deprive religious words or symbols of their traditional
meaning. Words like “God” are not vulgarities for which the shock
value diminishes with each successive utterance.

															   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) (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 the
government conduct. For the adherent, this analysis takes no
account of the message sent by removal of the sign or display,
which may well appear to him to be an act hostile to his religious
faith. The Court’s foray into religious meaning either gives
insufficient weight to the views of nonadherents and adherents
alike, or it provides no principled way to choose between those
views. In sum, this Court’s effort to assess religious meaning is
fraught with futility.

															   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. —, 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, Lake Cty., Ill. , 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 3 (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 correctly rejects the
challenge to the Ten Commandments monument on the Texas Capitol
grounds, a more fundamental rethinking of our Establishment Clause
jurisprudence remains in order.

															* See, e.g. , County of
Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573 , 592–594 (1989)
(employing endorsement test); Lemon v. Kurtzman , 403 U. S. 602 ,
612–613 (1971) (setting forth three-pronged test); Marsh v. Chambers, 463 U. S. 783 , 790–792
(1983) (upholding legislative prayer due to its “unique history”);
see also Lynch v. Donnelly , 465 U. S. 668 , 679–681 (1984) (“[W]e
have repeatedly emphasized our unwillingness to be confined to any
single test or criterion in this sensitive area”). BREYER, J., CONCURRING IN JUDGMENT VAN ORDEN V. PERRY 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1500 THOMAS VAN ORDEN, PETITIONER v. RICK
PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN,
STATE PRESERVATION BOARD, et al.

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[June 27, 2005]

															   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 1.

															   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, e.g. , Lemon, supra ,
at 612–613 (setting forth what has come to be known as the
“ Lemon test”); Lynch , supra , at 687
(O’Connor, J., concurring) (setting forth the “endorsement test”); Capitol Square Review and Advisory Bd. v. Pinette , 515 U. S. 753 , 800, n. 5
(1995) (Stevens, J., dissenting) (agreeing that an “endorsement
test” should apply but criticizing its “reasonable observer”
standard); Santa Fe Independent School Dist. v. Doe , 530 U.
S. 290 , 319 (2000) (Rehnquist, C. J., dissenting) (noting Lemon ’s “checkered career in the decisional law of this
Court”); County of Allegheny, supra , at 655–656
(Kennedy, J., joined by Rehnquist, C. J., and White and Scalia,
JJ., concurring in judgment in part and dissenting in part)
(criticizing the Lemon test).

															   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 Diety. On the other
hand, focusing on the text of the Commandments alone cannot
conclusively resolve this case. Rather, to determine
the message that the text here conveys, we must examine how the
text is used . And that inquiry requires us to consider the
context of the display. 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 interested 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 1961
Tex. Gen. Laws 1995. 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 State itself from the religious aspect of the
Commandments’ message. 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. (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
“compel” 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 the public visiting
the capitol grounds has considered the religious aspect of the
tablets’ message as part of what is a broader moral and historical
message reflective of a cultural
heritage. 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 21–25 (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, pre-existing
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 particular test
than upon consideration of the basic purposes of the First
Amendment’s Religion Clauses themselves. This display has stood
apparently uncontested for nearly two generations. That experience
helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of
degree is, I believe, critical in a borderline case such as this
one. At the same time, to reach a contrary
conclusion here, based primarily upon 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 exercise 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. See, e.g. , ante, at 3–4, n. 3, 6–9. Nor can I agree with Justice
Scalia’s dissent in McCreary County, post , at 1. I do
agree with Justice O’Connor’s statement of principles in McCreary County, post , at 1, though I disagree with her
evaluation of the evidence as it bears on the application of those
principles to this case. I concur in the judgment of the
Court. [Graphic omitted:
see printed opinion.] STEVENS, J., DISSENTING VAN ORDEN V. PERRY 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1500 THOMAS VAN ORDEN, PETITIONER v. RICK
PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN,
STATE PRESERVATION BOARD, et al.

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[June 27, 2005]

															   Justice Stevens, with whom
Justice Ginsburg joins, dissenting.

															   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 .[ Footnote 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.

															   For those of us who learned to recite the King
James version of the text long before we understood the meaning of
some of its words, God’s Commandments may seem like wise counsel.
The question before this Court, however, is whether it is counsel
that the State of Texas may proclaim without violating the
Establishment Clause of the Constitution. If any fragment of
Jefferson’s metaphorical “wall of separation between church and
State”[ Footnote 2 ] is to be
preserved—if there remains any meaning to the “wholesome
‘neutrality’ of which this Court’s [Establishment Clause] cases
speak,” School Dist. of Abington Township v. Schempp , 374 U. S. 203 , 222 (1963)—a negative
answer to that question is mandatory.

															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).[ Footnote 3 ]

															   Government’s obligation to avoid
divisiveness and exclusion in the religious sphere is compelled by
the Establishment and Free Exercise Clauses, which together erect a
wall of separation between church and state.[ Footnote 4 ] This metaphorical wall protects
principles long recognized and often recited in this Court’s cases.
The first and most fundamental of these principles, one that a
majority of this Court today affirms, is that the Establishment
Clause demands religious neutrality—government may not exercise a
preference for one religious faith over another. See, e.g., McCreary County v. American Civil
Liberties Union, Ky. , post , at 27–29.[ Footnote 5 ] This essential command, however,
is not merely a prohibition against the government’s
differentiation among religious sects. We have repeatedly
reaffirmed that neither a State nor the Federal Government “can
constitutionally pass laws or impose requirements which aid all
religions as against non-believers, and neither can aid those
religions based on a belief in the existence of God as against
those religions founded on different beliefs.” Torcaso v. Watkins , 367 U. S. 488 , 495
(1961) (footnote omitted).[ Footnote
6 ] This principle is based on the straightforward notion that
governmental promotion of orthodoxy is not saved by the aggregation
of several orthodoxies under the State’s banner. See Abington , 374 U. S., at 222.

															   Acknowledgments of this broad understanding of
the neutrality principle are legion in our cases.[ Footnote 7 ] Strong arguments to the contrary
have been raised from time to time, perhaps the strongest in
then-Justice Rehnquist’s scholarly dissent in Wallace v. Jaffree , 472 U. S. 38 , 91–114 (1985).[ Footnote 8 ] Powerful as his argument
was, we squarely rejected it and thereby reaffirmed the principle
that the Establishment Clause requires the same respect for the
atheist as it does for the adherent of a Christian faith. As we
wrote, “the Court has unambiguously concluded that the individual
freedom of conscience protected by the First Amendment embodies the
right to select any religious faith or none at all.” Id. ,
at 52–53.

															   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 3. 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 ways in which religion has played a role in American life,
see ante, at 3–8 (plurality opinion), and by the
recitation of the many extant governmental “acknowledgments” of the
role the Ten Commandments played in our Nation’s heritage.[ Footnote 9 ] Ante , at 8–9, and
n. 8. Surely, the mere compilation of religious symbols, none
of which includes the full text of the Commandments and all of
which are exhibited in different settings, has only marginal
relevance to the question presented in this case.

															   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,
signifying the Commandments’ influence on the development of
secular law, or even denoting the religious beliefs of Texans at
that time. To the contrary, the donation was only one of over a
hundred largely identical monoliths, and of over a thousand paper
replicas, distributed to state and local governments throughout the
Nation over the course of several decades. This ambitious project
was the work of the Fraternal Order of Eagles, a well-respected
benevolent organization whose good works have earned the praise of
several Presidents.[ Footnote
10 ]

															   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.[ Footnote 11 ]

															   The donors were motivated by a desire to
“inspire the youth” and curb juvenile delinquency by providing
children with a “code of conduct or standards by which to govern
their actions.”[ Footnote 12 ]
It is the Eagles’ belief that disseminating the message conveyed by
the Ten Commandments will help to persuade young men and women to
observe civilized standards of behavior, and will lead to more
productive lives. Significantly, although the Eagles’ organization
is nonsectarian, eligibility for membership is premised on a belief
in the existence of a “Supreme Being.”[ Footnote 13 ] As described by the Eagles
themselves:

															“ ‘in 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 by-products 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 monuments in front
of its public buildings. Moreover, the State may provide its
schoolchildren and adult citizens with educational materials that
explain the important role that our forebears’ faith in God played
in their decisions to select America as a refuge from religious
persecution, to declare their independence from the British Crown,
and to conceive a new Nation. See Edwards , 482 U. S., at
606–608 (Powell, J., concurring). The message at issue in this
case, however, is fundamentally different from either a bland
admonition to observe generally accepted rules of behavior or a
general history lesson.

															   The reason this message stands apart is that
the Decalogue is a venerable religious text.[ Footnote 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) (footnote omitted).
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
10 (“Of course, the Ten Commandments are religious—they were so
viewed at their inception and so remain”); ante , at 1
(Thomas, J., concurring); see also McCreary County v. American Civil Liberties Union of Ky. , post , at
19 (Scalia, J., dissenting). Attempts to secularize what is
unquestionably a sacred text defy credibility and disserve people
of faith.

															   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,[ Footnote 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 religious significance.[ Footnote 16 ] See Lubet, The Ten
Commandments in Alabama, 15 Constitutional Commentary 471, 474–476
(Fall 1998). In choosing to display this version of the
Commandments, Texas tells the observer that the State supports this
side of the doctrinal religious debate. The reasonable observer,
after all, has no way of knowing that this text was the product of
a compromise, or that there is a rationale of any kind for the
text’s selection.[ Footnote
17 ]

															   The Establishment Clause, if nothing else,
forbids government from “specifying details upon which men and
women who believe in a benevolent, omnipotent Creator and Ruler of
the world are known to differ.” Lee v. Weisman , 505 U. S. 577 , 641 (1992) (Scalia, J.,
dissenting). Given that the chosen text inscribed on the Ten
Commandments monument invariably places the State at the center of
a serious sectarian dispute, the display is unquestionably
unconstitutional under our case law. See Larson v. Valente , 456 U. S. 228 , 244 (1982) (“The
clearest command of the Establishment Clause is that one religious
denomination cannot be officially preferred over another”).

															   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 Establishment Clause by prescribing a compelled code of conduct
from one God, namely a Judeo-Christian God, that is rejected by
prominent polytheistic sects, such as Hinduism, as well as
nontheistic religions, such as Buddhism.[ Footnote 18 ] See, e.g., Allegheny
County , 492 U. S., at 615 (opinion of Blackmun, J.) (“The
simultaneous endorsement of Judaism and Christianity is no less
constitutionally infirm than the endorsement of Christianity
alone”). And, at the very least, the text of the Ten Commandments
impermissibly commands a preference for religion over irreligion.
See, e.g., id. , at 590 (The Establishment Clause
“guarantee[s] religious liberty and equality to the ‘infidel, the
atheist, or the adherent of a non-Christian faith such as Islam or
Judaism’ ” (quoting Wallace , 472 U. S., at 52)). Any
of those bases, in my judgment, would be sufficient to conclude
that the message should not be proclaimed by the State of Texas on
a permanent monument at the seat of its government.

															   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. 6473 (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 “Live 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).[ Footnote 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 6–8. 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
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 to the role of religion in American
life, unmistakably reveals on which side of the “slippery slope,” ante , at 8 (Breyer, J., concurring in judgment), this
display must fall. God, as the author of its message, the Eagles,
as the donor of the monument, and the State of Texas, as its proud
owner, speak with one voice for a common purpose—to encourage
Texans to abide by the divine code of a “Judeo-Christian” God. If
this message is permissible, then the shining principle of
neutrality to which we have long adhered is nothing more than mere
shadow.

															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 Establishment Clause does not proscribe
official recognition of God’s role in our Nation’s heritage, ante , at 7–8.[ Footnote
20 ] Further, the plurality emphatically endorses the seemingly
timeless recognition that our “institutions presuppose a Supreme
Being,” ante , at 4. Many of the submissions made to this
Court by the parties and amici , in accord with the
plurality’s opinion, have relied on the ubiquity of references to
God throughout our history.

															   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 and the context in which it is situated, sets this
case apart from the countless examples of benign government
recognitions of religion. But there is another crucial difference.
Our leaders, when delivering public addresses, often express their
blessings simultaneously in the service of God and their
constituents. Thus, when public officials deliver public speeches,
we recognize that their words are not exclusively a transmission
from the government because those oratories have embedded
within them the inherently personal views of the speaker as an
individual member of the polity.[ Footnote 21 ] The permanent placement of a textual
religious display on state property is different in kind; it
amalgamates otherwise discordant individual views into a collective
statement of government approval. Moreover, the message never
ceases to transmit itself to objecting viewers whose only choices
are to accept the message or to ignore the offense by averting
their gaze. Cf. Allegheny County , 492 U. S., at 664
(Kennedy, J., concurring in judgment in part and dissenting in
part); ante , at 4 (Thomas, J., concurring). In this sense,
although Thanksgiving Day proclamations and inaugural speeches
undoubtedly seem official, in most circumstances they will not
constitute the sort of governmental endorsement of religion at
which the separation of church and state is aimed.[ Footnote 22 ]

															   The plurality’s reliance on early religious
statements and proclamations made by the Founders is also
problematic because those views were not espoused at the
Constitutional Convention in 1787[ Footnote 23 ] nor enshrined in the Constitution’s text.
Thus, the presentation of these religious statements as a unified
historical narrative is bound to paint a misleading picture. It
does so here. In according deference to the statements of George
Washington and John Adams, The Chief Justice and Justice Scalia,
see ante , at 7 (plurality opinion); McCreary
County , post , at 3–4 (dissenting opinion), fail to
account for the acts and publicly espoused views of other
influential leaders of that time. Notably absent from their
historical snapshot is the fact that Thomas Jefferson refused to
issue the Thanksgiving proclamations that Washington had so readily
embraced based on the argument that to do so would violate the
Establishment Clause.[ Footnote
24 ] The Chief Justice and Justice Scalia disregard the
substantial debates that took place regarding the constitutionality
of the early proclamations and acts they cite, see, e.g., Letter from James Madison to Edward Livingston (July 10, 1822), in
5 The Founders’ Constitution 105–106 (P. Kurland & R. Lerner
eds. 1987) (hereinafter Founders’ Constitution) (arguing that
Congress’ appointment of Chaplains to be paid from the National
Treasury was “not with my approbation” and was a “deviation” from
the principle of “immunity of Religion from civil
jurisdiction”),[ Footnote 25 ]
and paper over the fact that Madison more than once repudiated the
views attributed to him by many, stating unequivocally that with
respect to government’s involvement with religion, the
“ ‘tendency to a usurpation on one side, or the other, or to a
corrupting coalition or alliance between them, will be best guarded
against by an entire abstinence of the Government from
interference, in any way whatever, beyond the necessity of
preserving public order, & protecting each sect against
trespasses on its legal rights by others.’ ”[ Footnote 26 ]

															   These seemingly nonconforming sentiments
should come as no surprise. Not insignificant numbers of colonists
came to this country with memories of religious persecution by
monarchs on the other side of the Atlantic. See A. Stokes & L.
Pfeffer, Church and State in the United States 3–23 (rev. ed.
1964). Others experienced religious intolerance at the hands of
colonial Puritans, who regrettably failed to practice the tolerance
that some of their contemporaries preached. Engel v. Vitale , 370 U. S. 421 , 427–429 (1962). The
Chief Justice and Justice Scalia ignore the separationist
impulses—in accord with the principle of “neutrality”—that these
individuals brought to the debates surrounding the adoption of the
Establishment Clause.[ Footnote
27 ]

															   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 Establishment Clause to stand for a narrower proposition than the plurality, for whatever
reason, is willing to accept. Namely, many of the Framers
understood the word “religion” in the Establishment Clause to
encompass only the various sects of Christianity.

															   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 exercise” to
Christians, and invocations of the divine were commonly understood
to refer to Christ.[ Footnote
28 ] That historical background likely informed the Framers’
understanding of the First Amendment. Accordingly, one influential
thinker wrote of the First Amendment that “ ‘[t]he meaning of
the term “establishment” in this amendment unquestionably is, the
preference and establishment given by law to one sect of Christians
over every other.’ ” Jasper Adams, The Relation of
Christianity to Civil Government in the United States (Feb. 13,
1833) (quoted in Dreisbach 16). That definition tracked the
understanding of the text Justice Story adopted in his famous
Commentaries, in which he wrote that the “real object” of the
Clause was:

															“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.” 2 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.[ Footnote
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).[ Footnote 30 ]

															   The original understanding of the type of
“religion” that qualified for constitutional protection under the
Establishment Clause likely did not include those followers of
Judaism and Islam who are among the preferred “monotheistic”
religions Justice Scalia has embraced in his McCreary
County opinion. See post , at 10–11 (dissenting
opinion).[ Footnote 31 ] 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 evidence 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 Establishment Clause’s original
meaning just as strongly supports a preference for Christianity as
it does a preference for monotheism. Generic references to “God”
hardly constitute evidence that those who spoke the word meant to
be inclusive of all monotheistic believers; nor do such references
demonstrate that those who heard the word spoken understood it
broadly to include all monotheistic faiths. See supra , at
21. Justice Scalia’s inclusion of Judaism and Islam is a laudable
act of religious tolerance, but it is one that is unmoored from the
Constitution’s history and text, and moreover one that is patently
arbitrary in its inclusion of some, but exclusion of other
( e.g. , Buddhism), widely practiced non-Christian
religions. See supra , at 12, 13–14, and n. 16 (noting that
followers of Buddhism nearly equal the number of Americans who
follow Islam). Given the original understanding of the men who
championed our “Christian nation”—men who had no cause to view
anti-Semitism or contempt for atheists as problems worthy of civic
concern—one must ask whether Justice Scalia “has not had the
courage (or the foolhardiness) to apply [his originalism] principle
consistently.” McCreary County, post , at 7.

															   Indeed, to constrict narrowly the reach of the
Establishment Clause to the views of the Founders would lead to
more than this unpalatable result; it would also leave us with an
unincorporated constitutional provision—in other words, one that
limits only the federal establishment of “a national
religion.” See Elk Grove Unified School Dist. v. Newdow , 542 U. S. 1 , 45 (2004) (Thomas, J.,
concurring in judgment); cf. A. Amar, The Bill of Rights 36–39
(1998). Under this view, not only could a State constitutionally
adorn all of its public spaces with crucifixes or passages from the
New Testament, it would also have full authority to prescribe the
teachings of Martin Luther or Joseph Smith as the official
state religion. Only the Federal Government would be prohibited
from taking sides, (and only then as between Christian sects).

															   A reading of the First Amendment dependent on
either of the purported original meanings expressed above would
eviscerate the heart of the Establishment Clause. It would replace
Jefferson’s “wall of separation” with a perverse wall of
exclusion—Christians inside, non-Christians out. It would permit
States to construct walls of their own choosing—Baptists inside,
Mormons out; Jewish Orthodox inside, Jewish Reform out. A Clause so
understood might be faithful to the expectations of some of our
Founders, but it is plainly not worthy of a society whose enviable
hallmark over the course of two centuries has been the continuing
expansion of religious pluralism and tolerance. Cf. Abington , 374 U. S., at 214; Zelman v. Simmons-Harris , 536 U. S. 639 , 720, 723
(2002) (Breyer, J., dissenting).

															   Unless one is willing to renounce over 65
years of Establishment Clause jurisprudence and cross back over the
incorporation bridge, see Cantwell v. Connecticut , 310 U. S. 296 , 303
(1940), appeals to the religiosity of the Framers ring
hollow.[ Footnote 32 ] But
even if there were a coherent way to embrace incorporation with one
hand while steadfastly abiding by the Founders’ purported religious
views on the other, the problem of the selective use of history
remains. As the widely divergent views espoused by the leaders of
our founding era plainly reveal, the historical record of the
preincorporation Establishment Clause is too indeterminate to serve
as an interpretive North Star.[ Footnote 33 ]

															   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 principal concerns of our legislators by which we
are governed.” Oncale v. Sundowner Offshore Services,
Inc. , 523 U. S.
75 , 79 (1998). In similar fashion, we have construed the Equal
Protection Clause of the Fourteenth Amendment to prohibit
segregated schools, see Brown v. Board of
Education , 349
U. S. 294 (1955), even though those who drafted that Amendment
evidently thought that separate was not unequal.[ Footnote 34 ] We have held that the same
Amendment prohibits discrimination against individuals on account
of their gender, Frontiero v. Richardson , 411 U. S. 677 (1973), despite the fact that the contemporaries of the Amendment
“doubt[ed] very much whether any action of a State not directed by
way of discrimination against the negroes as a class, or on account
of their race, will ever be held to come within the purview of this
provision,” Slaughter-House Cases, 16 Wall. 36, 81 (1873).
And we have construed “evolving standards of decency” to make
impermissible practices that were not considered “cruel and
unusual” at the founding. See Roper v. Simmons ,
543 U. S. ___, ___ (2005) (slip op., at 1) (Stevens, J.,
concurring).

															   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 towards our
Nation’s history and the other fixed on its democratic aspirations.
See McCulloch v. Maryland, 4 Wheat. 316, 407, 415
(1819) (“[W]e must never forget, that it is a constitution we are expounding” that is intended to “endure for ages to come,
and, consequently, to be adapted to the various crises of
human affairs”). Constitutions, after all,

															“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.[ Footnote
35 ] The basis for that principle is firmly rooted in our
Nation’s history and our Constitution’s text. I recognize that the
requirement that government must remain neutral between religion
and irreligion would have seemed foreign to some of the Framers; so
too would a requirement of neutrality between Jews and Christians.
But cf. Letter from George Washington to the Hebrew Congregation in
Newport, R. I. (Aug. 18, 1790), in 6 Papers of George
Washington 284, 285 (D. Twohig ed. 1996). Fortunately, we are not
bound by the Framers’ expectations—we are bound by the legal
principles they enshrined in our Constitution. Story’s vision that
States should not discriminate between Christian sects has as its
foundation the principle that government must remain neutral
between valid systems of belief. As religious pluralism has
expanded, so has our acceptance of what constitutes valid belief
systems. The evil of discriminating today against atheists,
“polytheists[,] and believers in unconcerned deities,” McCreary
County , post , at 10 (Scalia, J., dissenting), is in
my view a direct descendent of the evil of discriminating among
Christian sects. The Establishment Clause thus forbids it and, in
turn, forbids Texas from displaying the Ten Commandments monument
the plurality so casually affirms.

															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 synagogues, 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’s 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 8 (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.
[Graphic omitted: see printed opinion.] Footnote 1 At the bottom of the message, the observer
learns that the display was “[p]resented to the people and youth of
Texas by the Fraternal Order of Eagles of Texas” in 1961. See
Appendix, infra . Footnote 2 Reynolds v. United States , 98 U. S. 145 , 164
(1879); see also Everson v. Board of Ed. of
Ewing , 330 U. S. 1 , 16 (1947). Footnote 3 As Senator Danforth recently reminded us,
“efforts to haul references of God into the public square, into
schools and courthouses, are far more apt to divide Americans than
to advance faith.” Danforth, Onward, Moderate Christian Soldiers,
N. Y. Times, June 17, 2005, p. A27. Footnote 4 The accuracy and utility of this metaphor
have been called into question. See, e.g., Wallace v. Jaffree , 472 U. S. 38 , 106 (1985) (Rehnquist,
J., dissenting); see generally P. Hamburger, Separation of Church
and State (2002). Whatever one may think of the merits of the
historical debate surrounding Jefferson and the “wall” metaphor,
this Court at a minimum has never questioned the concept of the
“separation of church and state” in our First Amendment
jurisprudence. The Chief Justice’s opinion affirms that principle. Ante , at 4 (demanding a “separation between church and
state”). Indeed, even the Court that famously opined that “[w]e are
a religious people whose institutions presuppose a Supreme Being,” Zorach v. Clauson , 343 U. S. 306 , 313
(1952), acknowledged that “[t]here cannot be the slightest doubt
that the First Amendment reflects the philosophy that Church and
State should be separated,” id. , at 312. The question we
face is how to give meaning to that concept of separation. Footnote 5 There is now widespread consensus on this
principle. See Everson v. Board of Ed. of Ewing , 330 U. S. 1 , 15 (1947) (“Neither a state
nor the Federal Government . . . can pass laws which aid one
religion, aid all religions, or prefer one religion over another”); School District of Abington Township v. Schempp , 374 U. S. 203 , 226 (1963) (“In the
relationship between man and religion, the State is firmly
committed to a position of neutrality”); Larson v. Valente , 456 U. S. 228 , 244 (1982) (“The
clearest command of the Establishment Clause is that one religious
denomination cannot be officially preferred over another”); see
also Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512
U. S. 687 , 748 (1994) (Scalia, J., dissenting) (“I have always
believed … that the Establishment Clause prohibits the favoring of
one religion over others”); but see Church of Holy Trinity v. United States, 143 U. S. 457 , 470–471 (1892). Footnote 6 In support of this proposition, the Torcaso Court quoted James Iredell, who in the course of
debating the adoption of the Federal Constitution in North
Carolina, stated: “ ‘it is objected that the people of America
may perhaps choose representatives who have no religion at all, and
that Pagans and Mahometans may be admitted into offices. But how is
it possible to exclude any set of men, without taking away that
principle of religious freedom which we ourselves so warmly contend
for?’ ” 367 U. S., at 495, n. 10 (quoting 4 J. Elliot,
Debates in the Several State Conventions on the Adoption of the
Federal Constitution 197 (1836 ed.)). Footnote 7 See Everson , 330 U. S., at 18 (the
Establishment Clause “requires the state to be … neutral in its
relations with groups of religious believers and non-believers”); Abington , 374 U. S., at 216 (rejecting the proposition
that the Establishment Clause “forbids only governmental preference
of one religion over another”); Wallace , 472 U. S., at
52–55 (the interest in “forestalling intolerance extends beyond
intolerance among Christian sects—or even intolerance among
‘religions’—to encompass intolerance of the disbeliever and the
uncertain”); cf. Zorach , 343 U. S., at 325 (Jackson, J.,
dissenting) (“The day that this country ceases to be free for
irreligion it will cease to be free for religion—except for the
sect that can win political power”). Footnote 8 Justice Scalia’s dissent in the other Ten
Commandments case we decide today, see McCreary County v. American Civil Liberties Union of Ky ., post , at
1–11, raises similar objections. I address these objections
directly in Part III. Footnote 9 Though this Court has subscribed to the view
that the Ten Commandments influenced the development of Western
legal thought, it has not officially endorsed the far more specific
claim that the Ten Commandments played a significant role in the
development of our Nation’s foundational documents (and the
subsidiary implication that it has special relevance to Texas).
Although it is perhaps an overstatement to characterize this latter
proposition as “idiotic,” see Tr. of Oral Arg. 34, as one Member of
the plurality has done, at the very least the question is
a matter of intense scholarly debate. Compare Brief for Legal
Historians and Law Scholars as Amicus Curiae in McCreary County v. American Civil Liberties Union of
Ky. , O. T. 2004, No. 03–1693, with Brief for American Center
for Law and Justice as Amici Curiae . Whatever the
historical accuracy of the proposition, the District Court
categorically rejected respondent’s suggestion that the State’s
actual purpose in displaying the Decalogue was to signify its
influence on secular law and Texas institutions. App. to Pet. for
Cert. A–32. Footnote 10 See Brief for Fraternal Order of Eagles as Amicus Curiae 2–3. The Order was formed in 1898 by six
Seattle theater owners, promptly joined by actors, playwrights, and
stagehands, and rapidly expanded to include a nationwide membership
numbering over a million. Id. , at 2; see also Fraternal Order of Eagles v. Grand Aerie of Fraternal
Order of Eagles , 148 Wash. 2d 224, 229, 59 P. 3d 655, 657
(2002) (en banc); Lahmann v. Grand Aerie of Fraternal
Order of Eagles , 180 Ore. App. 420, 422, 43 P. 3d 1130,
1131 (2002). Footnote 11 See Books v. Elkhart , 235
F. 3d 292, 294–295 (CA7 2000); State v. Freedom
from Religion Foundation, Inc. , 898 P. 2d 1013, 1017
(Colo. 1995) (en banc); see also U. S. Supreme Court will hear Ten
Commandments Case in Early 2005,
http://www.foe.com/tencommandments/ index.html (all Internet
materials as visited June 24, 2005, and available in Clerk of
Court’s case file). Footnote 12 Freedom from Religion Foundation ,
898 P. 2d, at 1017; accord, 1961 Tex. Gen. Laws 1995 (“These
plaques and monoliths have been presented by the Eagles to promote
youth morality and to help stop the alarming increase in
delinquency”); Brief for Fraternal Order of Eagles as Amicus
Curiae 4. Footnote 13 According to its articles of incorporation,
the Eagles’ purpose is to: “ ‘Unite fraternally for mutual
benefit, protection, improvement, social enjoyment and association,
all persons of good moral character who believe in a Supreme Being
to inculcate the principles of liberty, truth, justice and equality
…’ ” Fraternal Order of Eagles , 148 Wash. 2d, at 229,
59 P. 3d, at 657. See also Aerie Membership
Application–Fraternal Order of Eagles
http://www.foe.com/membership/applications/aerie.html (“I, being of
sound body and mind, and believing in the existence of a Supreme
Being …”). Footnote 14 In County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh
Chapter , 492 U. S. 573 (1989) , I noted
that certain displays of religious images may convey “an equivocal
message, perhaps of respect for Judaism, for religion in general,
or for law.” Id. , at 652 (opinion concurring in part and
dissenting in part). It is rather misleading, however, to quote my
comment in that case to imply that I was referring to the text of
the Ten Commandments simpliciter . See McCreary
County , post , at 13–14. Footnote 15 See ante , at 5 (Breyer, J.,
concurring in judgment). Despite the Eagles’ efforts, not all of
the monuments they donated in fact conform to a
“universally-accepted” text. Compare, e.g. , Appendix, infra (including the command that “Thou shalt not make to
thyself any graven images”), and Adland v. Russ ,
307 F. 3d 471, 475 (CA6 2002) (same), with Freedom from
Religion Foundation , 898 P. 2d, at 1016 (omitting that
command altogether). The distinction represents a critical divide
between the Protestant and Catholic faiths. During the Reformation,
Protestants destroyed images of the Virgin Mary and of Jesus Christ
that were venerated in Catholic churches. Even today there is a
notable difference between the imagery in different churches, a
difference that may in part be attributable to differing
understandings of the meaning of what is the Second Commandment in
the King James Bible translation and a portion of the First
Commandment in the Catholic translation. See Finkelman, The Ten
Commandments on the Courthouse Lawn and Elsewhere, 73 Ford.
L. Rev. 1477, 1493–1494 (2005). Footnote 16 For example, in the Jewish version of the
Sixth Commandment God commands: “You shall not murder”; whereas,
the King James interpretation of the same command is: “Thou shalt
not kill.” Compare W. Plaut, The Torah: A Modern Commentary 534
(1981), with Appendix, infra . The difference between the
two versions is not merely semantic; rather, it is but one example
of a deep theological dispute. See Finkelman, supra , at
1481–1500; P. Maier, Enumerating the Decalogue; Do We Number the
Ten Commandments Correctly? 16 Concordia J. 18, 18–26 (1990).
Varying interpretations of this Commandment explain the actions of
vegetarians who refuse to eat meat, pacifists who refuse to work
for munitions makers, prison officials who refuse to administer
lethal injections to death row inmates, and pharmacists who refuse
to sell morning-after pills to women. See Finkelman, supra , at 1494–1496; Brief for American Jewish Congress
et al. as Amici Curiae 22–23. Although the command is
ambiguous, its power to motivate likeminded interpreters of its
message cannot be denied. Footnote 17 Justice Scalia’s willingness to dismiss the
distinct textual versions adhered to by different faiths in the
name of generic “monotheism” based on mere speculation regarding
their significance, McCreary County, post , at 19, is not
only somewhat ironic, see A. Scalia, A Matter of Interpretation
23–25 (1997), but also serves to reinforce the concern that
interjecting government into the religious sphere will offend
“adherents who consider the particular advertisement
disrespectful.” Allegheny County , 492 U. S., at 651
(Stevens, J., concurring in part and dissenting in part). Footnote 18 See Brief for Hindu American Foundation
et al. as Amici Curiae . Though Justice Scalia
disagrees that these sentiments are consistent with the
Establishment Clause, he does not deny that our cases
wholeheartedly adopt this expression of neutrality. Instead, he
suggests that this Court simply discard what he terms the “say-so
of earlier Courts,” based in part on his own “say-so” that
nonmonotheists make up a statistically insignificant portion of
this Nation’s religious community. McCreary County, post ,
at 6. Besides marginalizing the belief systems of more than 7
million Americans by deeming them unworthy of the special
protections he offers monotheists under the Establishment Clause,
Justice Scalia’s measure of analysis may be cause for concern even
for the self-proclaimed “popular” religions of Islam and Judaism.
The number of Buddhists alone is nearly equal to the number of
Muslims in this country, and while those of the Islamic and Jewish
faiths only account for 2.2% of all believers, Christianity
accounts for 95.5%. See U. S. Dept. of Commerce, Bureau of Census,
Statistical Abstract of the United States: 2004–2005, p. 55
(124th ed. 2004) (Table No. 67). Footnote 19 The fact that this particular display has
stood unchallenged for over forty years does not suggest otherwise.
One need look no further than the deluge of cases flooding lower
courts to realize the discord these displays have engendered. See, e.g. , Mercier v. Fraternal Order of
Eagles , 395 F. 3d 693 (CA7 2005); ACLU Nebraska
Foundation v. Plattsmouth , 358 F. 3d 1020 (CA8
2004); Adland v. Russ , 307 F. 3d 471 (CA6
2002); Summum v. Ogden , 297 F. 3d 995 (CA10
2002); Books v. Elkhart , 235 F. 3d 292 (CA7
2000); State v. Freedom From Religion Foundation,
Inc., 898 P. 2d 1013 (Colo. 1995); Anderson v. Salt Lake City Corp. , 475 F. 2d 29 (CA10 1973). Footnote 20 This is, of course, a rhetorical approach not
unique to the plurality’s opinion today. Appeals to such religious
speeches have frequently been used in support of governmental
transmission of religious messages. See, e.g., Wallace , 472 U. S., at 98–104 (Rehnquist, J., dissenting); Lee v. Weisman , 505 U. S. 577 , 633–636 (1992) (Scalia,
J., dissenting); Santa Fe Independent School Dist. v. Doe , 530 U.
S. 290 , 318 (2000) (Rehnquist, C. J., dissenting); cf. Lynch v. Donnelly , 465
U. S. 668 , 675–676 (1984). Footnote 21 It goes without saying that the analysis
differs when a listener is coerced into listening to a prayer. See, e.g., Santa Fe Independent School Dist., 530
U. S., at 308–312. Footnote 22 With respect to the “legislative prayers”
cited approvingly by The Chief Justice, ante , at 8, I
reiterate my view that “the designation of a member of one
religious faith to serve as the sole official chaplain of a state
legislature for a period of 16 years constitutes the preference of
one faith over another in violation of the Establishment Clause.” Marsh v. Chambers , 463 U. S. 783 , 823
(1983) (Stevens, J., dissenting). Thus, Justice Scalia and I are in
agreement with respect to at least one point—this Court’s decision
in Marsh “ignor[ed] the neutrality principle” at the heart
of the Establishment Clause. McCreary County , post , at 8 (Scalia, J., dissenting). Footnote 23 See, e.g., J. Hutson, Religion and
the Founding of the American Republic 75 (1998) (noting the dearth
of references to God at the Philadelphia Convention and that many
contemporaneous observers of the Convention complained that “the
Framers had unaccountably turned their backs on the Almighty”
because they “ ‘found the Constitution without any
acknowledgement of God’ ”). Footnote 24 See Letter from Thomas Jefferson to Rev. S. Miller
(Jan. 23, 1808), in 5 Founders’ Constitution 98; 11 Jefferson’s
Writings 428–430 (1905); see also Lee , 505 U. S., at
623–625 (Souter, J., concurring) (documenting history); Lynch , 465 U. S., at 716, n. 23 (Brennan, J., dissenting)
(same). Footnote 25 See also James Madison, Detached Memoranda,
in 5 Founders’ Constitution 103–104. Madison’s letter to Livingston
further argued that: “There has been another deviation from the
strict principle in the Executive Proclamations of fasts &
festivals, so far, at least, as they have spoken the language of injunction , or have lost sight of the equality of all religious sects in the eve of the Constitution… .
Notwithstanding the general progress made within the last two
centuries in favour of this branch of liberty, & the full
establishment of it, in some parts of our Country, there remains in
others a strong bias towards old error, that without some sort of
alliance or coalition between [Government] & Religion neither
can be duly supported. Such indeed is the tendency to such a
coalition, and such its corrupting influence on both the parties,
that the danger cannot be too carefully guarded [against]… .
Every new & successful example therefore of a perfect
separation between ecclesiastical and civil matters, is of
importance. And I have no doubt that every new example, will
succeed, as every past one has done, in shewing that religion &
[Government] will both exist in greater purity, the less they are
mixed together.” Id. , at 105–106. Footnote 26 Religion and Politics in the Early Republic
20–21 (D. Dreisbach ed. 1996) (hereinafter Dreisbach) (quoting
Letter from James Madison to Jasper Adams (1833)). See also Letter
from James Madison to Edward Livingston (July 10, 1822), in 5
Founders’ Constitution 106 (“We are teaching the world the great
truth that [Governments] do better without Kings & Nobles than
with them. The merit will be doubled by the other lesson that
Religion flourishes in greater purity, without than with the aid of
[Government]”). Footnote 27 The contrary evidence cited by The Chief
Justice and Justice Scalia only underscores the obvious fact that
leaders who have drafted and voted for a text are eminently capable
of violating their own rules. The first Congress was—just as the
present Congress is—capable of passing unconstitutional
legislation. Thus, it is no answer to say that the Founders’
separationist impulses were “plainly rejected” simply because the
first Congress enacted laws that acknowledged God. See McCreary
County , post , at 13 (Scalia, J., dissenting). To
adopt such an interpretive approach would misguidedly give
authoritative weight to the fact that the Congress that passed the
Fourteenth Amendment also enacted laws that tolerated segregation,
and the fact that the Congress that passed the First Amendment also
enacted laws, such as the Alien and Sedition Act, that indisputably
violated our present understanding of the First Amendment. See n.
36, infra ; Lee , 505 U. S., at 626 (Souter, J.,
concurring). Footnote 28 See, e.g., Strang, The Meaning of
“Religion” in the First Amendment, 40 Duquesne L. Rev. 181,
220–223 (2002). Footnote 29 Justice Story wrote elsewhere that
“ ‘Christianity is indispensable to the true interests &
solid foundations of all free governments. I distinguish … between
the establishment of a particular sect, as the Religion of the
State, & the Establishment of Christianity itself, without any
preference of any particular form of it. I know not, indeed, how
any deep sense of moral obligation or accountableness can be
expected to prevail in the community without a firm persuasion of
the great Christian Truths.” Letter to Jasper Adams (May 14, 1833)
Dreisbach 19. Footnote 30 See 143 U. S., at 471 (“ ‘[W]e are a
Christian people, and the morality of the country is deeply
ingrafted upon Christianity, and not upon the doctrines or worship
of … imposters’ ” (quoting People v. Ruggles , 8 Johns. 290, 295 (N. Y. Sup. Ct. 1811)));
see also Vidal v. Philadelphia, 2 How. 127,
198–199 (1844). These views should not be read as those of
religious zealots. Chief Justice Marshall himself penned the
historical genesis of the Court’s assertion that our
“ ‘institutions presuppose a Supreme Being,’ ” see Zorach , 343 U. S., at 313, writing that the “American
population is entirely Christian, & with us, Christianity &
Religion are identified. It would be strange, indeed, if with such
a people, our institutions did not presuppose Christianity, &
did not often refer to it, & exhibit relations with it.” Letter
from John Marshall to Jasper Adams (May 9, 1833) (quoted in
Dreisbach 18–19). Accord, Story §988, p. 700 (“[A]t the time of the
adoption of the constitution, . . . the general, if not the
universal, sentiment in America was, that Christianity ought to
receive encouragement from the state …” (footnote omitted)). Footnote 31 Justice Scalia’s characterization of this
conclusion as nothing more than my own personal “assurance” is
misleading to say the least. McCreary County , post , at 13. Reliance on our Nation’s early constitutional
scholars is common in this Court’s opinions. In particular, the
author of the plurality once noted that “Joseph Story, a Member of
this Court from 1811 to 1845, and during much of that time a
professor at the Harvard Law School, published by far the most
comprehensive treatise on the United States Constitution that had
then appeared.” Wallace , 472 U. S., at 104 (Rehnquist, J.,
dissenting). And numerous opinions of this Court, including two
notable opinions authored by Justice Scalia, have seen it fit to
give authoritative weight to Joseph Story’s treatise when
interpreting other constitutional provisions. See, e.g., United States v. Gaudin , 515 U. S. 506 , 510–511
(1995) (Fifth Amendment); Harmelin v. Michigan , 501 U. S. 957 ,
981–982 (1991) (Eighth Amendment). Footnote 32 Justice Scalia’s answer—that incorporation
does not empty “the incorporated provisions of their original
meaning,” McCreary County , post , at 15—ignores
the fact that the Establishment Clause has its own unique history.
There is no evidence, for example, that incorporation of the
Confrontation Clause ran contrary to the core of the Clause’s
original understanding. There is, however, some persuasive evidence
to this effect regarding the Establishment Clause. See Elk
Grove Unified School Dist. v. Newdow, 542 U. S. 1 , 49 (2004) (Thomas, J.,
concurring in judgment) (arguing that the Clause was originally
understood to be a “federalism provision” intended to prevent
“Congress from interfering with state establishments”). It is this
unique history, not incorporation writ large, that renders
incoherent the postincorporation reliance on the Establishment
Clause’s original understanding.

															   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
Establishment Clause was misguided, it is at this point unwise to
reverse course given the weight of precedent that would have to be
cast aside to reach the intended result. See Cardozo, The Nature of
the Judicial Process 149 (1937) (“The labor of judges would be
increased almost to the breaking point if every past decision could
be reopened in every case”). Footnote 33 See Lee , 505 U. S., at 626 (Souter,
J., concurring) (“[A]t best, … the Framers simply did not share a
common understanding of the Establishment Clause,” and at worst,
their overtly religious proclamations show “that they … could raise
constitutional ideals one day and turn their backs on them the
next”); Lynch v. Donnelly , 465
U. S. 668 , 716 (1984) (Brennan, J., dissenting) (same); cf.
Feldman, Intellectual Origins of the Establishment Clause, 77
N. Y. U. L. Rev. 346, 404–405 (2002) (noting
that, for the Framers, “the term ‘establishment’ was a contested
one” and that the word “was used in both narrow and expansive ways
in the debates of the time”). Footnote 34 See Hovenkamp, The Cultural Crises of the
Fuller Court, 104 Yale L. J. 2309, 2337–2342 (1995) (“Equal
protection had not been identified with social integration when the
Fourteenth Amendment was drafted in 1866, nor when it was ratified
in 1868, nor when Plessy [v. Ferguson , 163 U. S. 537 ] was
decided in 1896”); see also 1 L. Tribe, American Constitutional Law
§1–14, pp. 54–55, and n. 19 (3d ed. 2000) (collecting
scholarship). Footnote 35 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 4 (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 19, 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 3
(“[T]he mere presence of the monument … involves no coercion”
because 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 25 (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, The Intellectual
Origins of the Establishment Clause, 77 N. Y. U. L. Rev.
346, 415 (2002). 545 U. S. ____ (2005) 545 U. S. ____ (2005) 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1500 THOMAS VAN ORDEN, PETITIONER v. RICK
PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN,
STATE PRESERVATION BOARD, et al.

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[June 27, 2005]

															   Justice O’Connor, dissenting.

															   For essentially the reasons given
by Justice Souter, post, p.___ (dissenting opinion), as
well as the reasons given in my concurrence in McCreary
County v. American Civil Liberties Union of Ky.,
post, at ___, I respectfully dissent. SOUTER, J., DISSENTING VAN ORDEN V. PERRY 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1500 THOMAS VAN ORDEN, PETITIONER v. RICK
PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN,
STATE PRESERVATION BOARD, et al.

															on writ of certiorari to the united states court of
appeals for the fifth circuit

															[June 27, 2005]

															   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 nature.
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
confine 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.[ Footnote 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 reference, “I am
the Lord thy God.” That proclamation is centered on the stone and
written in slightly larger letters than the subsequent recitation.
To ensure that the religious nature of the monument is clear to
even the most casual passerby, the word “Lord” appears in all
capital letters (as does the word “am”), so that the most
eye-catching segment of the quotation is the declaration “I AM the
LORD thy God.” App. to Pet. for Cert. 21. What follows, of course,
are the rules against other gods, graven images, vain swearing, and
Sabbath breaking. And the full text of the fifth Commandment puts
forward filial respect as a condition of long life in the land
“which the Lord they God giveth thee.” See ibid. These
“[w]ords … make [the] … religious meaning unmistakably clear.” County of Allegheny v. American Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U. S. 573 , 598 (1989).

															   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,[ Footnote 2 ] see ibid. (“Here, unlike in Lynch [v. Donnelly , 465
U. S. 668 (1984)], nothing in the context of the display
detracts from the crčche’s religious message”), and the
plurality does not suggest otherwise. It would therefore be
difficult to miss the point that the government of Texas[ Footnote 3 ] is telling everyone who
sees the monument to live up to a moral code because God requires
it, with both code and conception of God being rightly understood
as the inheritances specifically of Jews and Christians. And it is
likewise unsurprising that the District Court expressly rejected
Texas’s argument that the State’s purpose in placing the monument
on the capitol grounds was related to the Commandments’ role as
“part of the foundation of modern secular law in Texas and
elsewhere.” App. to Pet. for Cert. 32.

															   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 emerged, ultimately having a secular influence in the history
of the Nation. Government may, of course, constitutionally call
attention to this influence, and may post displays or erect
monuments recounting this aspect of our history no less than any other, so long as there is a context and that
context is historical. Hence, a display of the Commandments
accompanied by an exposition of how they have influenced modern law
would most likely be constitutionally unobjectionable.[ Footnote 4 ] And the Decalogue could, as Stone suggested, be integrated constitutionally into a
course of study in public schools. Stone, 449 U.
S. , at 42.[ Footnote
5 ] Texas seeks to
take advantage of the recognition that visual symbol and written
text can manifest a secular purpose in secular 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 than fortuity and the edge of the grass. One monument
expresses admiration for pioneer women. One pays respect to the
fighters of World War II. And one quotes the God of Abraham whose
command is the sanction for moral law. The themes are individual
grit, patriotic courage, and God as the source of Jewish and
Christian morality; there is no common denominator. In like
circumstances, we rejected an argument similar to the State’s,
noting in County of Allegheny that “[t]he presence of
Santas or other Christmas decorations elsewhere in the . . .
[c]ourthouse, and of the nearby gallery forum, fail to negate the
[crčche’s] endorsement effect. . . . The record
demonstrates . . . that the crčche, with its floral
frame, was its own display distinct from any other decorations or
exhibitions in the building.” 492 U. S., at 598–599, n.
48.[ Footnote
6 ] 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 8 (“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)”). In fact,
it is not until the end of its opinion that the plurality turns to
the relevant precedent of Stone , a case actually dealing
with a display of the Decalogue. 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” (omission 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.
Accordingly, our numerous prior discussions of Stone have
never treated its holding as restricted to the classroom.[ Footnote 7 ] 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 12. 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 3–4 (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 religion, or with
rejection of religion. See County of Allegheny , 492 U. S.,
at 626 (O’Connor, J., concurring in part and concurring in
judgment) (“I agree that the crčche displayed on the
Grand Staircase of the Allegheny County Courthouse, the seat of
county government, conveys a message to nonadherents of
Christianity that they are not full members of the political
community … . The display of religious symbols in public areas
of core government buildings runs a special risk of making religion
relevant, in reality or public perception, to status in the
political community” (alteration and internal quotation marks
omitted)). 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 . . . ,”
a nte, at 2, an observation that echoes the State’s
contention that one fact cutting in its favor is that “the monument
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 for
the late resort to the courts. Suing a State over religion puts
nothing in a plaintiff’s pocket and can take a great deal out, and
even with volunteer litigators to supply time and energy, the risk
of social ostracism can be powerfully deterrent. I doubt that a
slow walk to the courthouse, even one that took 40 years, is much
evidentiary help in applying the Establishment
Clause. I
would reverse the judgment of the Court of
Appeals. Footnote 1 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. 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. Footnote 2 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 Commandments 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). Footnote 3 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 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. Footnote 4 For
similar reasons, the other displays of the Commandments that the
plurality mentions, ante , at 9, 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 one
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 Archive.” Letter from Judith A.
Koucky, Archivist, Records Control Section to Catherine Millard,
Oct. 1, 2003 (on file with Clerk of the Court). (The four
categories are war and defense, history, justice, and legislation.
Each disc is paired with a winged figure; the disc containing the
depiction of 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 9 (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 282; House Doc. No. 94–660 (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. Footnote 5 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
10 (opinion of the Court) (noting that in McGowan v. Maryland, 366 U. S. 420 (1961), the Court
“upheld Sunday closing laws on practical secular grounds after
finding that the government had forsaken the religious purposes
motivating centuries-old predecessor
laws”). Footnote 6 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 Allegheny County 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.” County of Allegheny v. American Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U. S. 573 , 599–600
(1989). Footnote 7 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 11, 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.