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OCTOBER TERM, 2004 677
Syllabus
VAN ORDEN v. PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN, STATE PRESERVATION BOARD, et al.
certiorari to the united states court of appeals for the fifth circuit No. 03–1500. Argued March 2, 2005—Decided June 27, 2005
Among the 21 historical markers and 17 monuments surrounding the Texas State Capitol is a 6-foot-high monolith inscribed with the Ten Commandments. The legislative record illustrates that, after accepting the monument from the Fraternal Order of Eagles—a national social, civic, and patriotic organization—the State selected a site for it based on the recommendation of the state organization that maintains the capitol grounds. Petitioner, an Austin resident who encounters the monument during his frequent visits to those grounds, brought this 42 U. S. C. § 1983 suit seeking a declaration that the monument’s placement violates the First Amendment’s Establishment Clause and an injunction requir ing its removal. Holding that the monument did not contravene the Clause, the District Court found that the State had a valid secular pur pose in recognizing and commending the Eagles for their efforts to re duce juvenile delinquency, and that a reasonable observer, mindful of history, purpose, and context, would not conclude that this passive mon ument conveyed the message that the State endorsed religion. The Fifth Circuit affirmed. Held: The judgment is affirmed. 351 F. 3d 173, affirmed. The Chief Justice, joined by Justice Scalia, Justice Kennedy, and Justice Thomas, concluded that the Establishment Clause allows the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds. Reconciling the strong role played by religion and religious traditions throughout our Nation’s history, see School Dist. of Abington Township v. Schempp, 374 U. S. 203, 212–213, with the principle that governmental intervention in religious matters can itself endanger religious freedom requires that the Court neither abdicate its responsibility to maintain a division between church and state nor evince a hostility to religion, e. g., Zorach v. Clauson, 343 U. S. 306, 313–314. While the Court has sometimes pointed to Lemon v. Kurtzman, 403 U. S. 602, for the governing test, Lemon is not useful in dealing with the sort of passive monument that Texas has erected on
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Syllabus
its capitol grounds. Instead, the analysis should be driven by both the monument’s nature and the Nation’s history. From at least 1789, there has been an unbroken history of official acknowledgment by all three branches of government of religion’s role in American life. Lynch v. Donnelly, 465 U. S. 668, 674. Texas’ display of the Commandments on government property is typical of such acknowledgments. Represen tations of the Commandments appear throughout this Court and its grounds, as well as the Nation’s Capital. Moreover, the Court’s opin ions, like its building, have recognized the role the Decalogue plays in America’s heritage. See, e. g., McGowan v. Maryland, 366 U. S. 420, 442, 462. While the Commandments are religious, they have an undeni able historical meaning. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause. See, e. g., Lynch v. Donnelly, supra, at 680, 687. There are, of course, limits to the government’s display of religious mes sages or symbols. For example, this Court held unconstitutional a Ken tucky statute requiring the posting of the Ten Commandments in every public schoolroom. Stone v. Graham, 449 U. S. 39, 41–42. However, neither Stone itself nor subsequent opinions have indicated that Stone ’s holding would extend beyond the context of public schools to a legis lative chamber, see Marsh v. Chambers, 463 U. S. 783, or to capitol grounds. Texas’ placement of the Commandments monument on its 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, petitioner here apparently walked by the monu ment for years before bringing this suit. Schempp, supra, and Lee v. Weisman, 505 U. S. 577, distinguished. Texas has treated its capitol grounds monuments as representing several strands in the State’s politi cal and legal history. The inclusion of the Commandments monument in this group has a dual significance, partaking of both religion and government, that cannot be said to violate the Establishment Clause. Pp. 683–692. Justice Breyer concluded that this is a difficult borderline case where none of the Court’s various tests for evaluating Establishment Clause questions can substitute for the exercise of legal judgment. See, e. g., School Dist. of Abington Township v. Schempp, 374 U. S. 203, 305 (Goldberg, J., concurring). That judgment is not a personal judgment. Rather, as in all constitutional cases, it must reflect and remain faith ful to the underlying purposes of the First Amendment’s Religion Clauses—to assure the fullest possible scope of religious liberty and tolerance for all, to avoid the religious divisiveness that promotes social conflict, and to maintain the separation of church and state. No exact formula can dictate a resolution to fact-intensive cases such as this.
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Counsel
Acting Solicitor General Clement argued the cause for the United States as amicus curiae in support of respond ents. With him on the brief were Assistant Attorney Gen eral Keisler, Deputy Assistant Attorney General Katsas, Patricia A. Millett, Robert M. Loeb, and Lowell V. Stur gill, Jr. *
*Briefs of amici curiae urging reversal were filed for American Atheists by Robert J. Bruno; for the American Humanist Association et al. by Eliz abeth L. Hileman; for the American Jewish Congress et al. by Marc D. Stern and Jeffrey Sinensky; for Americans United for Separation of Church and State et al. by Ian Heath Gershengorn, William M. Hohengar ten, Ayesha Khan, Richard B. Katskee, Elliot M. Mincberg, and Judith E. Schaeffer; for the Anti-Defamation League et al. by Jeffrey R. Babbin, Aaron S. Bayer, Kenneth D. Heath, Frederick M. Lawrence, Daniel S. Alter, and Steven M. Freeman; for the Baptist Joint Committee et al. by Douglas Laycock and K. Hollyn Hollman; for the Council for Secular Humanism by Edward Tabash; for the Freedom from Religion Foundation by James A. Friedman and James D. Peterson; and for the Hindu Ameri can Foundation et al. by Henry C. Dinger, Jeffrey A. Simes, Keith A. Zullow, Aseem V. Mehta, and Jessica Jamieson. Briefs of amici curiae urging affirmance were filed for the State of Indiana et al. by Steve Carter, Attorney General of Indiana, Thomas M. Fisher, and Rebecca Walker, Deputy Attorney General, and by the Attor neys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Mike Beebe of Arkansas, Charles J. Crist, Jr., of Florida, Lawrence G. Wasden of Idaho, Phill Kline of Kansas, Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, Jim Hood of Mississippi, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, Gerald J. Pappert of Pennsylvania, Henry McMaster of South Carolina, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, Jerry W. Kilgore of Virginia, and Patrick J. Crank of Wyoming; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Francis J. Manion, and Walter M. Weber; for the American Family Association Center for Law & Policy by Stephen M. Crampton, Brian Fahling, and Michael J. DePrimo; for the Becket Fund for Religious Liberty by Anthony R. Pi carello, Jr.; for the Claremont Institute Center for Constitutional Juris prudence by John C. Eastman and Edwin Meese III; for the Eagle Forum Education & Legal Defense Fund by Douglas G. Smith and Phyllis Schlafly; for the Ethics and Public Policy Center by Mark A. Perry; for the Foundation for Moral Law, Inc., by Benjamin D. DuPre´^ and Gregory M. Jones; for the Fraternal Order of Eagles by Kelly Shackelford and
Cite as: 545 U. S. 677 (2005) 681
Opinion of Rehnquist, C. J.
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., Reg. Sess. (2001).^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 “PRE-
George A. Miller; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin, Alyza D. Lewin, Dennis Rapps, David Zwiebel, and Nathan J. Diament; for the Pacific Justice Institute by Peter D. Lepis copo; for the Rutherford Institute by John W. Whitehead; and for Janet Napolitano et al. by Len L. Munsil. Briefs of amici curiae were filed for the Atheist Law Center et al. by Pamela L. Sumners and Larry Darby; for the Chester County Historic Preservation Network by Alfred W. Putnam, Jr.; for Faith and Action et al. by Bernard P. Reese, Jr.; for Focus on the Family et al. by Benjamin W. Bull and Jordan W. Lorence; for the Thomas More Law Center by Edward L. White III; and for Wallbuilders, Inc., by Barry C. Hodge. (^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, Trib ute 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.
Cite as: 545 U. S. 677 (2005) 683
Opinion of Rehnquist, C. J.
Court’s holdings with respect to the monument’s purpose and effect. 351 F. 3d 173 (CA5 2003). We granted certiorari, 543 U. S. 923 (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.^2
The other face looks toward the principle that governmental intervention in religious matters can itself endanger reli gious freedom. This case, like all Establishment Clause challenges, pre sents us with the difficulty of respecting both faces. Our institutions presuppose a Supreme Being, yet these institu tions must not press religious observances upon their citi zens. 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. Recon ciling these two faces requires that we neither abdicate our
(^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”).
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Opinion of Rehnquist, C. J.
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 co operates 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 reli gious 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.” Zor ach 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”).^3
(^3) Despite Justice Stevens’ recitation of occasional language to the con trary, post, at 710–711, 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. 709 (2005); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-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 accom modations of religion. See post, at 711 (opinion of Stevens, J.) (recogniz ing that the Establishment Clause permits some “recognition” or “ac knowledgment” of religion); post, at 740–741, and n. 4 (opinion of Souter, J.) (discussing a number of permissible displays with religious content).
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Opinion of Rehnquist, C. J.
to Lemon v. Kurtzman, 403 U. S. 602 (1971), as providing the governing test in Establishment Clause challenges.^6 Com pare 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 con cluding that the challenged practice was invalid under a dif ferent 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 anal ysis 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 exam ple, both Houses passed resolutions in 1789 asking President George Washington to issue a Thanksgiving Day Proclama tion to “recommend to the people of the United States a day of public thanksgiving and prayer, to be observed, by ac knowledging, with grateful hearts, the many and signal fa vors of Almighty God.” 1 Annals of Cong. 90, 914 (internal quotation marks omitted). President Washington’s procla
(^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).
Cite as: 545 U. S. 677 (2005) 687
Opinion of Rehnquist, C. J.
mation directly attributed to the Supreme Being the founda tions and successes of our young Nation:
“Now, therefore, I do recommend and assign Thurs day, 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 na tion; for the signal and manifold mercies and the favor able interpositions of His providence in the course and conclusion of the late war; for the great degree of tran quillity, 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 na tional one now lately instituted; for the civil and reli gious 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 his tory of man is inseparable from the history of religion,” Engel v. Vitale, 370 U. S. 421, 434 (1962).^7 This recognition
(^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 judg
Cite as: 545 U. S. 677 (2005) 689
Opinion of Rehnquist, C. J.
Similar acknowledgments can be seen throughout a visi tor’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 Command ments 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 Cham ber of the United States House of Representatives.^9 Our opinions, like our building, have recognized the role the Decalogue plays in America’s heritage. See, e. g., McGo wan v. Maryland, 366 U. S., at 442; id., at 462 (separate opin
(^9) Other examples of monuments and buildings reflecting the prominent role of religion abound. For example, the Washington, Jefferson, and Lin coln Memorials all contain explicit invocations of God’s importance. The apex of the Washington Monument is inscribed “Laus Deo,” which is trans lated 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. In scribed on the wall of the Lincoln Memorial are two of Lincoln’s most famous speeches, the Gettysburg Address and his Second Inaugural Ad dress. Both inscriptions include those speeches’ extensive acknowledg ments 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.”
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Opinion of Rehnquist, C. J.
ion of Frankfurter, J.).^10 The Executive and Legislative Branches have also acknowledged the historical role of the Ten Commandments. See, e. g., Public Papers of the Presi dents, 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 reli gious acknowledgments. Of course, the Ten Commandments are religious—they were so viewed at their inception and so remain. The monu ment, 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 ex amples 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– (1970). There are, of course, limits to the display of religious mes sages or symbols. For example, we held unconstitutional a Kentucky statute requiring the posting of the Ten Com mandments 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
(^10) See also Edwards v. Aguillard, 482 U. S., at 593–594; Lynch v. Don nelly, 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 dis senting in part); Stone v. Graham, 449 U. S. 39, 45 (1980) (Rehnquist, J., dissenting).
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Thomas, J., concurring
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.
Justice Scalia, concurring. I join the opinion of The Chief Justice because I think it accurately reflects our current Establishment Clause juris prudence—or at least the Establishment Clause jurispru dence 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, hon oring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Command ments. See McCreary County v. American Civil Liberties Union of Ky., post, at 885–894 (Scalia, J., dissenting).
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 Jus tice rightly recognizes that the monument has “religious significance.” Ante, at 690. He properly recognizes the role of religion in this Nation’s history and the permissibility of government displays acknowledging that history. Ante, at 686–688. For those reasons, I join The Chief Justice’s opinion in full. This case would be easy if the Court were willing to aban don the inconsistent guideposts it has adopted for addressing
Cite as: 545 U. S. 677 (2005) 693
Thomas, J., concurring
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, 45–46 (2004) (opinion concurring in judgment); see also Zelman v. Simmons-Harris, 536 U. S. 639, 677–680, and n. 3 (2002) (concurring opinion). 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. 709, 728, n. 3 (2005) (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] in volve 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, manda tory observance or mandatory payment of taxes supporting ministers.” Cutter, supra, at 729 (Thomas, J., concurring). And “government practices that have nothing to do with cre ating or maintaining... coercive state establishments” sim ply do not “implicate the possible liberty interest of being
*See, e. g., County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 592–594 (1989) (employing en dorsement test); Lemon v. Kurtzman, 403 U. S. 602, 612–613 (1971) (set ting forth three-pronged test); Marsh v. Chambers, 463 U. S. 783, 790– (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”).
Cite as: 545 U. S. 677 (2005) 695
Thomas, J., concurring
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., Robin son v. Edmond, 68 F. 3d 1226 (CA10 1995); Murray v. Aus tin, 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) (Ken nedy, J., concurring in judgment in part and dissenting in part). Second, in a seeming attempt to balance out its willingness to consider almost any acknowledgment of religion an estab lishment, in other cases Members of this Court have con cluded that the term or symbol at issue has no religious meaning by virtue of its ubiquity or rote ceremonial invoca tion. See, e. g., id., at 630–631 (O’Connor, J., concurring in part and concurring in judgment); Lynch v. Donnelly, 465 U. S. 668, 716–717 (1984) (Brennan, J., dissenting). But words such as “God” have religious significance. For exam ple, just last Term this Court had before it a challenge to the recitation of the Pledge of Allegiance, which includes the
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Thomas, J., concurring
phrase “one Nation under God.” The declaration that our country is “ ‘one Nation under God’ ” necessarily “entail[s] an affirmation that God exists.” Newdow, 542 U. S., at 48 (Thomas, J., concurring in judgment). This phrase is thus anathema to those who reject God’s existence and a valida tion 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. More over, repetition does not deprive religious words or symbols of their traditional meaning. Words like “God” are not vul garities for which the shock value diminishes with each suc cessive utterance. Even when this Court’s precedents recognize the religious meaning of symbols or words, that recognition fails to re spect fully religious belief or disbelief. This Court looks for the meaning to an observer of indeterminate religious affili ation 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 in part and concurring in judgment) (presum ing 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 commu nity.’ ” Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 309–310 (2000) (quoting Lynch, supra, at 688 (O’Con nor, 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
