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Click here for the full text of this decision FACTS:Thomas Van Orden challenged the presence of a six-foot tall granite monument, on which the Ten Commandments are etched, that is one of 17 monuments around the Texas Capitol grounds’ 22 acres. The monument was accepted for installation on the grounds in 1961 as a gift from the Fraternal Order of Eagles. The monument also includes other symbols, including Hebrew script, a star of David, two Christian symbols, an American flag, an eagle and a pyramid symbol like the one on the dollar bill. It bears the inscription, “PRESENTED TO THE PEOPLE AND YOUTH OF TEXAS BY THE FRATERNAL ORDER OF EAGLES OF TEXAS 1961.” As stipulated by the parties, the monument, which is located in a line between the Capitol and the Texas Supreme Court, requires no virtually no maintenance, was solely paid for by the Eagles, and was selected for placement by the Building Engineering and Management Division of the State Board of Control. Also on the capitol grounds are monuments incorporating references to God, and Aztec prophets, as well as statues celebrating women, children, minorities and veterans. Van Orden argued that Texas “accepted” the monument for the purpose of promoting the Commandments as a personal code of conduct for youths and, because the Commandments are a sectarian religious code, their promotion and endorsement by the state as a personal code contravenes the First Amendment. The district court rebuffed his argument, finding the monument served a secular purpose and a reasonable observer would not conclude that the state sought to endorse or promote religion by its display. Van Orden now appeals. HOLDING:Affirmed. The court starts with the three-part test for challenges under the First Amendment of Lemon v. Kurtzman, 403 U.S. 602 (1971): 1. whether the government activity in question has a secular purpose; 2. whether the activity’s primary effect advances or inhibits religion; and 3. whether the government activity fosters an excessive entanglement with religion. The court adds that government neutrality toward religion has been read to mean that a state cannot favor religion over non-religion or one religion over another. However, neutrality does not demand that the state “be blind to the pervasive presences [sic] of strongly held views about religion with myriad faiths and doctrines.” Consequently, the court notes that the proper application of First Amendment principles demands a sense of proportion and a fact-sensitive analysis. Thus, examining the monument within its full setting. There is nothing to indicate that the stated purpose of accepting the monument � which noted the Eagles’ work curbing juvenile misconduct � was a sham. Van Orden ignores the fact that the Commandments have a secular and a religious message, the court finds, and there is no evidence of any religious invocations pronounced at the time the monument was accepted. The court also concludes that the primary effect of the monument is secular in nature, though the court declines to accept the state’s contention that the monument is merely part of a museum setting. “Even those who would see the decalogue as wise counsel born of man’s experience rather than as divinely inspired religious teaching cannot deny its influence upon the civil and criminal laws of this country.” The court says that “history matters here,” and points out that no legal complaints have been filed in the 42 years it has stood on the Capitol grounds. “This Court is well aware that Travis County is not lacking in persons willing and able to seek judicial relief from perceived interferences [sic] with constitutional rights. . . . Had this monument been recently installed, the inference of religious purpose would have been stronger.” The court concludes that no judicial decree can erase the history the text has had as a powerful teacher of ethics and or wise counsel in governing a free people. OPINION:Higginbotham, Circuit Judge.

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