FIRST AMENDMENT RIGHTS
A. FREEDOM OF SPEECH
CHAPLINSKY V. NEW HAMPSHIRE
315 U.S. 568 (1942)
MR JUSTICE Murphy delivered the opinion of the Court.
Appellant, a member of the sect known as Jehovah's Witnesses, was convicted in the
municipal court of Rochester, New Hampshire, for violation of Chapter 378, § 2, of the Public
Laws of New Hampshire:
No person shall address any offensive, derisive or annoying word to any other person who is
lawfully in any street or other public place, nor call him by any offensive or derisive name.
The complaint charged that appellant in a certain public place in said city of Rochester did
unlawfully repeat the words, addressed to the complainant, "You are a God damned racketeer"
and "a damned Fascist and the whole government of Rochester are Fascists or agents of
Fascists," the same being offensive, derisive and annoying words and names.
Appellant raised the questions that the statute was invalid under the Fourteenth Amendment
in that it placed an unreasonable restraint on freedom of speech, freedom of the press, and
freedom of worship. These contentions were overruled, and the case comes here on appeal.
There is no substantial dispute over the facts. Chaplinsky was distributing the literature of his
sect on the streets of Rochester. Members of the local citizenry complained to the City Marshal,
Bowering, that Chaplinsky was denouncing all religion as a "racket." Bowering told them that
Chaplinsky was lawfully engaged, and then warned Chaplinsky that the crowd was getting
restless. Some time later, a disturbance occurred and the traffic officer on duty at the intersection
started with Chaplinsky for the police station, but did not inform him that he was going to be
arrested. On the way, they encountered Marshal Bowering, who had been advised that a riot was
under way and was hurrying to the scene. Bowering repeated his earlier warning to Chaplinsky,
who then addressed to Bowering the words set forth in the complaint.
Chaplinsky's version of the affair was slightly different. He testified that, when he met
Bowering, he asked him to arrest the ones responsible for the disturbance. In reply, Bowering
cursed him and told him to come along. Appellant admitted that he said the words charged in the
complaint, with the exception of the name of the Deity.
It is now clear that Freedom of speech and freedom of the press, which are protected by the
First Amendment from infringement by Congress, are among the fundamental personal rights
and liberties which are protected by the Fourteenth Amendment from invasion by state action.
Freedom of worship is similarly sheltered.
Appellant assails the statute as a violation of free speech. Allowing the broadest scope to the
language and purpose of the Fourteenth Amendment, it is well understood that the right of free
speech is not absolute at all times and under all circumstances. There are certain well defined and
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narrowly limited classes of speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or "fighting" words -- those which, by their very utterance, inflict
injury or tend to incite an immediate breach of the peace. Such utterances are no essential part of
any exposition of ideas, and are of such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social interest in order and morality.
Resort to epithets or personal abuse is not in any proper sense communication of information
or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no
question under that instrument.
The state statute here challenged comes to us authoritatively construed by the highest court of
New Hampshire. The state court declared that the statute's purpose was to preserve the public
peace, no words being "forbidden except such as have a direct tendency to cause acts of violence
by the persons to whom, individually, the remark is addressed." It was further said:
The word "offensive" is not to be defined in terms of what a particular addressee thinks. . . .
The test is what men of common intelligence would understand would be words likely to cause
an average addressee to fight. . . . The English language has a number of words and expressions
which, by general consent, are "fighting words" . . . . [S]uch words, as ordinary men know, are
likely to cause a fight. Derisive and annoying words can be taken as coming within the purview
of the statute as heretofore interpreted only when they have this characteristic of plainly tending
to excite the addressee to a breach of the peace. . . . The statute, as construed, does no more than
prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee,
words whose speaking constitutes a breach of the peace by the speaker -- including "classical
fighting words," [and] words in current use less "classical" but equally likely to cause violence.
We are unable to say that the limited scope of the statute as thus construed contravenes the
Constitutional right of free expression. It is a statute narrowly drawn and limited to define and
punish specific conduct lying within the domain of state power, the use in a public place of
words likely to cause a breach of the peace.
Nor can we say that the application of the statute to the facts disclosed by the record
substantially or unreasonably impinges upon free speech. Argument is unnecessary to
demonstrate that the appellations "damned racketeer" and "damned Fascist" are epithets likely to
provoke the average person to retaliation, and thereby cause a breach of the peace.
The challenged statute, on its face and as applied, do[es] not contravene the Fourteenth
Amendment. Affirmed.
COHEN v. CALIFORNIA
403 U.S. 15 (1971)
MR. JUSTICE HARLAN delivered the opinion of the Court.
This case may seem at first blush too inconsequential to find its way into our books, but the
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issue it presents is of no small constitutional significance.
Appellant Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating
that part of California Penal Code 415 which prohibits "maliciously and willfully disturb[ing] the
peace or quiet of any neighborhood or person . . . by . . . offensive conduct . . . ."1 He was given
30 days' imprisonment. The facts upon which his conviction rests are detailed in the opinion of
the Court of Appeal of California, Second Appellate District, as follows:
"On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in
the corridor outside of division 20 of the municipal court wearing a jacket bearing the words
`Fuck the Draft' which were plainly visible. There were women and children present in the
corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing
that the words were on the jacket as a means of informing the public of the depth of his feelings
against the Vietnam War and the draft.
"The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of
his conduct in fact commit or threaten to commit any act of violence. The defendant did not
make any loud or unusual noise, nor was there any evidence that he uttered any sound prior to his
arrest."
In affirming the conviction the Court of Appeal held that "offensive conduct" means
"behavior which has a tendency to provoke others to acts of violence or to in turn disturb the
peace," and that the State had proved this element because, on the facts of this case, "[i]t was
certainly reasonably foreseeable that such conduct might cause others to rise up to commit a
violent act against the person of the defendant or attempt to forcibly remove his jacket." The
California Supreme Court declined review by a divided vote. We now reverse.
I
In order to lay hands on the precise issue which this case involves, it is useful first to canvass
various matters which this record does not present.
The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to
convey his message to the public. The only "conduct" which the State sought to punish is the fact
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The statute provides in full:
"Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood
or person, by loud or unusual noise, or by tumultuous or offensive conduct, or threatening,
traducing, quarreling, challenging to fight, or fighting, or who, on the public streets of any
unincorporated town, or upon the public highways in such unincorporated town, run any horse
race, either for a wager or for amusement, or fire any gun or pistol in such unincorporated town,
or use any vulgar, profane, or indecent language within the presence or hearing of women or
children, in a loud and boisterous manner, is guilty of a misdemeanor, and upon conviction by
any Court of competent jurisdiction shall be punished by fine not exceeding two hundred dollars,
or by imprisonment in the County Jail for not more than ninety days, or by both fine and
imprisonment, or either, at the discretion of the Court."
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of communication. Thus, we deal here with a conviction resting solely upon "speech," not upon
any separately identifiable conduct which allegedly was intended by Cohen to be perceived by
others as expressive of particular views but which, on its face, does not necessarily convey any
message and hence arguably could be regulated without effectively repressing Cohen's ability to
express himself. Further, the State certainly lacks power to punish Cohen for the underlying
content of the message the inscription conveyed. At least so long as there is no showing of an
intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the
First and Fourteenth Amendments, be punished for asserting the evident position on the inutility
or immorality of the draft his jacket reflected.
Appellant's conviction, then, rests squarely upon his exercise of the "freedom of speech"
protected from arbitrary governmental interference by the Constitution and can be justified, if at
all, only as a valid regulation of the manner in which he exercised that freedom, not as a
permissible prohibition on the substantive message it conveys. This does not end the inquiry, of
course, for the First and Fourteenth Amendments have never been thought to give absolute
protection to every individual to speak whenever or wherever he pleases, or to use any form of
address in any circumstances that he chooses. In this vein, too, however, we think it important to
note that several issues typically associated with such problems are not presented here.
In the first place, Cohen was tried under a statute applicable throughout the entire State. Any
attempt to support this conviction on the ground that the statute seeks to preserve an
appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the
absence of any language in the statute that would have put appellant on notice that certain kinds
of otherwise permissible speech or conduct would nevertheless, under California law, not be
tolerated in certain places.
In the second place, as it comes to us, this case cannot be said to fall within those relatively
few categories of instances where prior decisions have established the power of government to
deal more comprehensively with certain forms of individual expression simply upon a showing
that such a form was employed. This is not, for example, an obscenity case. Whatever else may
be necessary to give rise to the States' broader power to prohibit obscene expression, such
expression must be, in some significant way, erotic. It cannot plausibly be maintained that this
vulgar allusion to the Selective Service System would conjure up such psychic stimulation in
anyone likely to be confronted with Cohen's crudely defaced jacket.
This Court has also held that the States are free to ban the simple use, without a
demonstration of additional justifying circumstances, of so-called "fighting words," those
personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of
common knowledge, inherently likely to provoke violent reaction. Chaplinsky v. New
Hampshire, 315 U.S. 568 (1942). While the four-letter word displayed by Cohen in relation to
the draft is not uncommonly employed in a personally provocative fashion, in this instance it was
clearly not "directed to the person of the hearer." No individual actually or likely to be present
could reasonably have regarded the words on appellant's jacket as a direct personal insult. Nor do
we have here an instance of the exercise of the State's police power to prevent a speaker from
intentionally provoking a given group to hostile reaction. There is, as noted above, no showing
that anyone who saw Cohen was in fact violently aroused or that appellant intended such a result.
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Finally, in arguments before this Court much has been made of the claim that Cohen's
distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the
State might therefore legitimately act as it did in order to protect the sensitive from otherwise
unavoidable exposure to appellant's crude form of protest. Of course, the mere presumed
presence of unwitting listeners or viewers does not serve automatically to justify curtailing all
speech capable of giving offense. While this Court has recognized that government may properly
act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and
ideas which cannot be totally banned from the public dialogue, we have at the same time
consistently stressed that "we are often `captives' outside the sanctuary of the home and subject to
objectionable speech." The ability of government, consonant with the Constitution, to shut off
discourse solely to protect others from hearing it is, in other words, dependent upon a showing
that substantial privacy interests are being invaded in an essentially intolerable manner. Any
broader view of this authority would effectively empower a majority to silence dissidents simply
as a matter of personal predilections.
In this regard, persons confronted with Cohen's jacket were in a quite different posture than,
say, those subjected to the raucous emissions of sound trucks blaring outside their residences.
Those in the Los Angeles courthouse could effectively avoid further bombardment of their
sensibilities simply by averting their eyes. And, while it may be that one has a more substantial
claim to a recognizable privacy interest when walking through a courthouse corridor than, for
example, strolling through Central Park, surely it is nothing like the interest in being free from
unwanted expression in the confines of one's own home. Given the subtlety and complexity of
the factors involved, if Cohen's "speech" was otherwise entitled to constitutional protection, we
do not think the fact that some unwilling "listeners" in a public building may have been briefly
exposed to it can serve to justify this breach of the peace conviction where, as here, there was no
evidence that persons powerless to avoid appellant's conduct did in fact object to it, and where
that portion of the statute upon which Cohen's conviction rests evinces no concern, either on its
face or as construed by the California courts, with the special plight of the captive auditor, but,
instead, indiscriminately sweeps within its prohibitions all "offensive conduct" that disturbs "any
neighborhood or person."
II
Against this background, the issue flushed by this case stands out in bold relief. It is whether
California can excise, as "offensive conduct," one particular scurrilous epithet from the public
discourse, either upon the theory of the court below that its use is inherently likely to cause
violent reaction or upon a more general assertion that the States, acting as guardians of public
morality, may properly remove this offensive word from the public vocabulary.
The rationale of the California court is plainly untenable. At most it reflects an
"undifferentiated fear or apprehension of disturbance [which] is not enough to overcome the right
to freedom of expression." We have been shown no evidence that substantial numbers of citizens
are standing ready to strike out physically at whoever may assault their sensibilities with
execrations like that uttered by Cohen. There may be some persons about with such lawless and
violent proclivities, but that is an insufficient base upon which to erect, consistently with
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constitutional values, a governmental power to force persons who wish to ventilate their dissident
views into avoiding particular forms of expression.
Admittedly, it is not so obvious that the First and Fourteenth Amendments must be taken to
disable the States from punishing public utterance of this unseemly expletive in order to maintain
what they regard as a suitable level of discourse within the body politic. We think, however, that
examination and reflection will reveal the shortcomings of a contrary viewpoint.
At the outset, we cannot overemphasize that, in our judgment, most situations where the State
has a justifiable interest in regulating speech will fall within one or more of the various
established exceptions, discussed above but not applicable here, to the usual rule that
governmental bodies may not prescribe the form or content of individual expression. Equally
important to our conclusion is the constitutional backdrop against which our decision must be
made. The constitutional right of free expression is powerful medicine in a society as diverse and
populous as ours. It is designed and intended to remove governmental restraints from the arena of
public discussion, putting the decision as to what views shall be voiced largely into the hands of
each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry
and more perfect polity and in the belief that no other approach would comport with the premise
of individual dignity and choice upon which our political system rests.
To many, the immediate consequence of this freedom may often appear to be only verbal
tumult, discord, and even offensive utterance. These are, however, within established limits, in
truth necessary side effects of the broader enduring values which the process of open debate
permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this
sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what
otherwise might seem a trifling and annoying instance of individual distasteful abuse of a
privilege, these fundamental societal values are truly implicated. That is why "[w]holly neutral
futilities . . . come under the protection of free speech as fully as do Keats' poems or Donne's
sermons," and why "so long as the means are peaceful, the communication need not meet
standards of acceptability."
Against this perception of the constitutional policies involved, we discern certain more
particularized considerations that peculiarly call for reversal of this conviction. First, the
principle contended for by the State seems inherently boundless. How is one to distinguish this
from any other offensive word? Surely the State has no right to cleanse public debate to the point
where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable
general principle exists for stopping short of that result were we to affirm the judgment below.
For, while the particular four-letter word being litigated here is perhaps more distasteful than
most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric.
Indeed, we think it is largely because governmental officials cannot make principled distinctions
in this area that the Constitution leaves matters of taste and style so largely to the individual.
Additionally, we cannot overlook the fact, because it is well illustrated by the episode
involved here, that much linguistic expression serves a dual communicative function: it conveys
not only ideas capable of relatively precise, detached explication, but otherwise inexpressible
emotions as well. In fact, words are often chosen as much for their emotive as their cognitive
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force. We cannot sanction the view that the Constitution, while solicitous of the cognitive
content of individual speech, has little or no regard for that emotive function which, practically
speaking, may often be the more important element of the overall message sought to be
communicated.
Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid
particular words without also running a substantial risk of suppressing ideas in the process.
Indeed, governments might soon seize upon the censorship of particular words as a convenient
guise for banning the expression of unpopular views. We have been able, as noted above, to
discern little social benefit that might result from running the risk of opening the door to such
grave results.
It is, in sum, our judgment that, absent a more particularized and compelling reason for its
actions, the State may not, consistently with the First and Fourteenth Amendments, make the
simple public display here involved of this single four-letter expletive a criminal offense.
Because that is the only arguably sustainable rationale for the conviction here at issue, the
judgment below must be reversed.
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. JUSTICE
BLACK join, dissenting.
Cohen's absurd and immature antic, in my view, was mainly conduct and little speech.
Further, the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire,
315 U.S. 568 (1942), where Mr. Justice Murphy, a known champion of First Amendment
freedoms, wrote for a unanimous bench.
B. Establishment and Free Exercise Clauses
STONE v. GRAHAM
449 U.S. 39 (1980)
PER CURIAM
A Kentucky statute requires the posting of a copy of the Ten Commandments, purchased with
private contributions, on the wall of each public classroom in the State. Petitioners, claiming that
this statute violates the Establishment and Free Exercise Clauses of the First Amendment, sought
an injunction against its enforcement. The state trial court upheld the statute, finding that its
"avowed purpose" was "secular and not religious," and that the statute would "neither advance
nor inhibit any religion" nor involve the State excessively in religious matters. The Supreme
Court of the Commonwealth of Kentucky affirmed by an equally divided court. We reverse.
This Court has announced a three-part test for determining whether a challenged state statute
is permissible under the Establishment Clause of the United States Constitution: "First, the
statute must have a secular legislative purpose; second, its principal or primary effect must be
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one that neither advances nor inhibits religion; finally the statute must not foster 'an excessive
government entanglement with religion.'" Lemon v. Kurtzman. If a statute violates any of these
three principles, it must be struck down. We conclude that Kentucky's statute requiring the
posting of the Ten Commandments in public school rooms has no secular legislative purpose,
and is therefore unconstitutional.
The Commonwealth insists that the statute in question serves a secular legislative purpose,
observing that the legislature required the following notation in small print at the bottom of each
display of the Ten Commandments: "The 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."
The trial court found the "avowed" purpose of the statute to be secular. Under this Court's
rulings, however, such an "avowed" secular purpose is not sufficient to avoid conflict with the
First Amendment. In Abington School District v. Schempp, 374 U.S. 203 (1963), this Court held
unconstitutional the daily reading of Bible verses in the public schools, despite the school
district's assertion of such secular purposes as "the promotion of moral values, the contradiction
to the materialistic trends of our times, and the teaching of literature."
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.
This is not a case in which the Ten Commandments are integrated into the school
curriculum, where the Bible may constitutionally be used in an appropriate study of history,
civilization, ethics, comparative religion, or the like. Posting of religious texts on the wall serves
no such educational function. If the posted copies of the Ten Commandments are to have any
effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate
and obey, the Commandments. However desirable this might be as a matter of private devotion,
it is not a permissible state objective under the Establishment Clause.
It does not matter that the posted copies of the Ten Commandments are financed by private
contributions, for the mere posting of the copies under the auspices of the legislature provides the
"official support of the State Government" that the Establishment Clause prohibits. Nor is it
significant that the Bible verses involved in this case are posted on the wall, rather than read
aloud, for "it is no defense to urge that the religious practices here may be relatively minor
encroachments on the First Amendment." We conclude that Ky. Rev. Stat. § 158.178 violates the
first part of the Lemon v. Kurtzman test, and thus the Establishment Clause.
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JUSTICE REHNQUIST, dissenting.
The Court concludes that the Kentucky statute involved in this case "has no secular
legislative purpose." This even though, as the trial court found, "[the] General Assembly thought
the statute had a secular legislative purpose and specifically said so." The Court's summary
rejection of a secular purpose articulated by the legislature and confirmed by the state court is
without precedent. This Court regularly looks to legislative articulations of a statute's purpose in
Establishment Clause cases. The fact that the asserted secular purpose may overlap with what
some may see as a religious objective does not render it unconstitutional.
The Court rejects the secular purpose articulated by the State because the Decalogue is
"undeniably a sacred text." It is equally undeniable, however, that the Ten Commandments have
had a significant impact on the development of secular legal codes of the Western World.
Certainly the State was permitted to conclude that a document with such secular significance
should be placed before its students, with a statement of the document's secular import.
The Establishment Clause does not require that the public sector be insulated from all things
which may have a religious significance or origin. This Court has recognized that "religion has
been closely identified with our history and government," and that "[the] history of man is
inseparable from the history of religion" Kentucky has decided to make students aware of this
fact by demonstrating the secular impact of the Ten Commandments. The words of Justice
Jackson, concurring in McCollum v. Board of Education (1948), merit quotation:
"Perhaps subjects such as mathematics, physics or chemistry are, or can be, completely
secularized. But it would not seem practical to teach appreciation of the arts if we are to forbid
exposure to religious influences. Music without sacred music, architecture minus the cathedral,
or painting without the scriptural themes would be eccentric and incomplete. I should suppose it
is a proper part of preparation for a worldly life to know the roles that religions have played in
the tragic story of mankind. The fact is that nearly everything in our culture worth transmitting,
everything which gives meaning to life, is saturated with religious influences. One can hardly
respect the system of education that would leave the student wholly ignorant of the currents of
religious thought that move the world society for a part in which he is being prepared." I dissent.
VAN ORDEN v. PERRY
545 U.S. 677 (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." The
monolith challenged here stands 6-feet high and 3-feet wide. It is located between the Capitol
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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."
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. The Eagles paid
the cost of erecting the monument.
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. 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. 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.
These two faces are evident in representative cases both upholding and invalidating laws
under the Establishment Clause. Over the last 25 years, we have sometimes pointed to Lemon v.
Kurtzman as providing the governing test in Establishment Clause challenges. Many of our
recent cases simply have not applied the Lemon 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: "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." 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."
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," and that "the history of man is inseparable from the history of
religion." 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.
In this case we are faced with a display of the Ten Commandments outside the Texas State
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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. 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. These displays of the Ten Commandments bespeak the
rich American tradition of religious acknowledgments.
Of course, the Ten Commandments are religious. 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. Simply having religious content
does not run afoul of the Establishment Clause.
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.
Stone 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."
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. 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.
JUSTICE SCALIA, concurring.
I join the opinion of The Chief Justice because I think it reflects our current Establishment
Clause jurisprudence. 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.
JUSTICE THOMAS, concurring.
This case would be far simpler if we returned to the original meaning of the word
"establishment." The Framers understood an establishment "necessarily [to] involve actual legal
coercion."
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
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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.
While the Court correctly rejects the challenge to the monument, a more fundamental
rethinking of our Establishment Clause jurisprudence remains in order.
JUSTICE BREYER, concurring in the judgment.
The Establishment Clause does not compel the government to purge from the public sphere
all that in any way partakes of the religious. Such absolutism is not only inconsistent with our
national traditions, but would also tend to promote the kind of social conflict the Establishment
Clause seeks to avoid.
The Court has found no single mechanical formula that can accurately draw the
constitutional line in every case. 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 results which partake of a brooding and pervasive devotion to the secular and a passive,
or even active, hostility to the religious." Neither can this Court's tests readily explain the
Establishment Clause's tolerance, for example, of the prayers that open legislative meetings,
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.
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. That judgment must 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, no exact formula can dictate a resolution to such fact-intensive cases.
The case before us is a borderline case. On the one hand, the Commandments' text
undeniably has a religious message. 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.
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. And in certain contexts, a display
of the tablets can also convey a historical message -- a fact that helps to explain the display of
those tablets in courthouses throughout the Nation.
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 4012
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 efforts to combat juvenile delinquency. The Eagles' consultation with members of several
faiths in order to find a nonsectarian text underscores the group's ethics-based motives. The
tablets, as displayed on the monument, prominently acknowledge that the Eagles donated the
display, a factor which 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.
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. The setting does not readily lend itself to 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.
The context suggests that the State intended the display's moral message -- an illustrative
message reflecting the historical "ideals" of Texans -- to predominate.
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.
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. The message transmitted by Texas' chosen
display is quite plain: This State endorses the divine code of the "Judeo-Christian" God.
I
In my judgment, at the very least, the Establishment Clause has created a strong
presumption against the display of religious symbols on public property. The adornment of our
public spaces with displays of religious symbols and messages runs the risk of "offending
nonmembers of the faith being advertised as well as adherents who consider the particular
advertisement disrespectful."
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. This metaphorical wall protects principles long recognized
in this Court's cases. The most fundamental of these principles is that the Establishment Clause
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demands religious neutrality -- government may not exercise a preference for one religious faith
over another. 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."
Acknowledgments of this broad understanding of the neutrality principle are legion in our
cases.
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." 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 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 inconsistent with the plurality's wholehearted validation of
an official state endorsement of the message that there is one, and only one, God.
II
The Decalogue is a venerable religious text. The profoundly sacred message inscribed on
the Texas monument is emphasized by the especially large letters that identify its author: "I AM
the LORD thy God." It commands present worship of Him and no other deity. It instructs us to
follow a code of divine law, some of which has 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, the
Ten Commandments display projects an inherently sectarian message. There are many versions
of the Decalogue, ascribed to by different religions. In choosing to display this version of the
Commandments, Texas tells the observer that the State supports this side of the doctrinal
religious debate. Given that the chosen text invariably places the State at the center of a serious
sectarian dispute, the display is unquestionably unconstitutional under our case law.
Even if the message of the monument 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. And, at the very least, the text of the Ten Commandments impermissibly commands
a preference for religion over irreligion. 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
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permanent monument at the seat of its government. 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."
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 actually enhances the religious content of its message.
Critical examination of the Decalogue's prominent display at the seat of Texas government
unmistakably reveals on which side of the "slippery slope" 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 by leaders who spoke
in plainly religious rhetoric. It is our duty to interpret the First Amendment's command 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. 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.
Constitutions are, to use the words of Chief Justice Marshall, 'designed to approach immortality
as nearly as human institutions can approach it.' In the application of a constitution our
contemplation cannot be only of what has been but of what may be.
The principle that guides my analysis is neutrality. I recognize that the requirement that
government must remain neutral between religion and irreligion would have seemed foreign to
some of the Framers. Fortunately, we are not bound by the Framers' expectations -- we are
bound by the legal principles they enshrined in our Constitution.
JUSTICE O'CONNOR, dissenting.
For essentially the reasons given by JUSTICE SOUTER, I respectfully dissent.
JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE GINSBURG join,
dissenting.
Although the Religion Clauses have not been read to mandate absolute governmental
neutrality toward religion, the Establishment Clause requires neutrality as a general rule. 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 either to adopt the religious message or to urge its acceptance by others.
In this case, moreover, the text is presented to give particular prominence to the
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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." What follows, of course, are the rules
against other gods, graven images, vain swearing, and Sabbath breaking.
To drive the religious point home, the engraved quotation is framed by religious symbols.
Nothing on the monument, in fact, detracts from its religious nature,2 and the plurality does not
suggest otherwise. It would therefore be difficult to miss the point that the government of Texas
is telling everyone who sees the monument to live up to a moral code because God requires it.
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. Viewers may see the tablets of the Commandments 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, 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.
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 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. 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.
The monument sits on the grounds of the Texas State Capitol. The "statehouse" 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
rejection of religion.
2
That the monument also surrounds the Commandments with various American symbols
(the U.S. flag and a bald eagle) only underscores the impermissibility of Texas's actions: by
juxtaposing these patriotic symbols with the Commandments, the monument sends the message
that being American means being religious and also subscribing to the Commandments.
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