Van Orden V. Perry - Breyer's Concurrence

Breyer's Concurrence

Breyer's concurrence in this case is made all the more interesting because on the surface it appears that he voted quite differently in the McCreary County v. ACLU of Kentucky, a case which was heard and decided at the same time and seems, to the casual observer, virtually identical. However, in Van Orden v. Perry, Breyer submitted an opinion separate from that of the Court, while in McCreary he did not. As a result, the Van Orden case was decided by a plurality, not a majority as the other.

In opening his discussion of reasoning Breyer states:

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 Deity. 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.

He then goes on to list points which are stated to be insufficient individually, but together seem to provide a reasonable basis for "secular purpose":

1. The monument's 40-year history on the Texas state grounds indicates that nonreligious aspects of the tablets' message predominate.
2. The group that donated the monument, the Fraternal Order of Eagles, is a private civic (and primarily secular) organization. Who, 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.
3. The Eagles' consultated with a committee composed of members of several faiths in order to find a nonsectarian text — an act which underscores the group's ethics-based motives.
4. The tablets, as displayed on the monument, prominently acknowledge that the Eagles donated the display.
5. The physical setting of the monument 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 meditation or any other religious activity.
   • The setting does provide a context of history and moral ideals.
   • The larger display (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.

Breyer then goes on to state:

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," to "compel" any "religious practic," 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.

Breyer continues to explain a position which seeks to balance between not "lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause of the First Amendment traditions" and "recogniz the danger of the slippery slope" and ultimately rests upon a "matter of degree is, I believe, critical in a borderline case such as this one."

Breyer concludes by stating he cannot agree with the plurality, nor with Justice Scalia's dissent in McCreary County v. ACLU of Kentucky, but while he does agree with Justice O'Connor's statement of principles in McCreary, but disagrees with her evaluation of the evidence as it bears on the applying those principles to Van Orden v. Perry.