This was a challenge to a Fraternal Order of Eagles Ten Commandments monument placed in 1961 on the grounds of the Texas Capitol building. The 20-acre grounds contain sixteen other monuments, many of them memorials to Texas’ war-dead. The district court and the Fifth Circuit upheld the display, and the Supreme Court accepted the plaintiff’s request for a writ of certiorari.
In November 2004 AU, joined by allied groups, filed an amicus brief urging the Supreme Court to strike down the display as unconstitutional. We argued that the longevity of a display, and the lack of a prior legal challenge to it, should bear no relevance to a display’s constitutionality.
The Court disagreed, however. In a decision issued June 27, 2005, a plurality of the Court (Justices Rehnquist, Scalia, Thomas, and Kennedy) took the position that the display is a proper recognition of God. Justice Breyer provided the crucial fifth vote to uphold the monument, but he employed much narrower reasoning than the plurality. He opined that the monument is permissible because it is joined by other items, it was donated by an organization with secular motivations, and it had not been the subject of a legal challenge in its 40-year history. Four Justices (Stevens, Ginsburg, O’Connor, and Souter) dissented in three separate opinions, arguing among other things that the display is not neutral among religions.