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KENTUCKY TEN COMMANDMENTS CASE
MCCREARY COUNTY V.
AMERICAN CIVIL LIBERTIES UNION OF KY. (03-1693) 354 F.3d 438, affirmed.
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be
released, as is being done in connection with this case, at the time the
opinion is issued. The syllabus constitutes no part of the opinion of the
Court but has been prepared by the Reporter of Decisions for the convenience
of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S.
321, 337.
SUPREME COURT OF THE UNITED STATES
McCREARY COUNTY, KENTUCKY, et al. v. AMERICAN CIVIL
LIBERTIES UNION OF KENTUCKY et al. CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
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No. 03—1693.Argued March 2, 2005–Decided June 27, 2005
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After petitioners, two Kentucky Counties, each posted
large, readily visible copies of the Ten Commandments in their courthouses,
respondents, the American Civil Liberties Union (ACLU) et al., sued under 42
U.S.C. § 1983 to enjoin the displays on the ground that they violated the
First Amendment’s Establishment Clause. The Counties then adopted nearly
identical resolutions calling for a more extensive exhibit meant to show
that the Commandments are Kentucky’s “precedent legal code.” The resolutions
noted several grounds for taking that position, including the state
legislature’s acknowledgment of Christ as the “Prince of Ethics.” The
displays around the Commandments were modified to include eight smaller,
historical documents containing religious references as their sole common
element, e.g., the Declaration of Independence’s “endowed by their Creator”
passage. Entering a preliminary injunction, the District Court followed the
Lemon v. Kurtzman, 403 U.S. 602, test to find, inter alia, that the original
display lacked any secular purpose because the Commandments are a distinctly
religious document, and that the second version lacked such a purpose
because the Counties narrowly tailored their selection of foundational
documents to those specifically referring to Christianity. After changing
counsel, the Counties revised the exhibits again. No new resolution
authorized the new exhibits, nor did the Counties repeal the resolutions
that preceded the second one. The new posting, entitled “The Foundations of
American Law and Government Display,” consists of nine framed documents of
equal size. One sets out the Commandments explicitly identified as the “King
James Version,” quotes them at greater length, and explains that they have
profoundly influenced the formation of Western legal thought and this
Nation. With the Commandments are framed copies of, e.g., the Star Spangled
Banner’s lyrics and the Declaration of Independence, accompanied by
statements about their historical and legal significance. On the ACLU’s
motion, the District Court included this third display in the injunction
despite the Counties’ professed intent to show that the Commandments were
part of the foundation of American Law and Government and to educate County
citizens as to the documents. The court took proclaiming the Commandments’
foundational value as a religious, rather than secular, purpose under Stone
v. Graham, 449 U.S. 39, and found that the Counties’ asserted educational
goals crumbled upon an examination of this litigation’s history. Affirming,
the Sixth Circuit stressed that, under Stone, displaying the Commandments
bespeaks a religious object unless they are integrated with a secular
message. The court saw no integration here because of a lack of a
demonstrated analytical or historical connection between the Commandments
and the other documents.
Held:
1. A determination of the Counties’ purpose is a sound
basis for ruling on the Establishment Clause complaints. The Counties’
objective may be dispositive of the constitutional enquiry. Pp. 10—19.
(a) Lem on’s “secular legislative purpose” enquiry, 403
U.S., at 612, has been a common, albeit seldom dispositive, element of this
Court’s cases, Wallace v. Jaffree, 472 U.S. 38, 75. When the government acts
with the ostensible and predominant purpose of advancing religion, it
violates the central Establishment Clause value of official religious
neutrality, there being no neutrality when the government’s ostensible
object is to take sides. Corporation of Presiding Bishop of Church of Jesus
Christ of Latter&nbhyph;day Saints v. Amos, 483 U.S. 327, 335. A purpose to
favor one faith over another, or adherence to religion generally, clashes
with the “understanding … that liberty and social stability demand a …
tolerance that respects the religious views of all citizens.” Zelman v.
Simmons-Harris, 536 U.S. 639, 718. Pp. 11—12.
(b) The Court declines the Counties’ request to abandon
Lemon’s purpose test. Their assertions that true “purpose” is unknowable,
and its search merely an excuse for courts to act selectively and
unpredictably in picking out evidence of subjective intent, are as seismic
as they are unconvincing. Examination of purpose is a staple of statutory
interpretation for every American appellate court, e.g., General Dynamics
Land Systems, Inc. v. Cline, 540 U.S. 581, 600, and governmental purpose is
a key element of a good deal of constitutional doctrine, e.g., Washington v.
Davis, 426 U.S. 229. Scrutinizing purpose makes practical sense in
Establishment Clause analysis, where an understanding of official objective
emerges from readily discoverable fact set forth in a statute’s text,
legislative history, and implementation or comparable official act. Wallace
v. Jaffree, 472 U.S., at 73—74. Nor is there any indication that the purpose
enquiry is rigged in practice to finding a religious purpose dominant every
time a case is filed. Pp. 12—15.
(c) The Court also avoids the Counties’ alternative tack
of trivializing the purpose enquiry. They would read the Court’s cases as if
the enquiry were so naive that any transparent claim to secularity would
satisfy it, and they would cut context out of the enquiry, to the point of
ignoring history, no matter what bearing it actually had on the significance
of current circumstances. There is no precedent for these arguments, or
reason supporting them. Pp. 15—19.
&nb sp; (1) A legislature’s stated reasons will generally
warrant the deference owed in the first instance to such official claims,
but Lemon requires the secular purpose to be genuine, not a sham, and not
merely secondary to a religious objective, see, e.g., Santa Fe Independent
School Dist. v. Doe, 530 U.S. 290, 308. In those unusual cases where the
claim was an apparent sham, or the secular purpose secondary, the
unsurprising results have been findings of no adequate secular object, as
against a predominantly religious one. See, e.g., Stone, supra, at 41. Pp.
15—17.
&nb sp; (2) The Counties’ argument that purpose in a case
like this should be inferred only from the latest in a series of
governmental actions, however close they may all be in time and subject,
bucks common sense. Reasonable observers have reasonable memories, and the
Court’s precedents sensibly forbid an observer “to turn a blind eye to the
context in which [the] policy arose.” Santa Fe, supra, at 315. Pp. 17—19.
2. Evaluation of the Counties’ claim of secular purpose
for the ultimate displays may take their evolution into account. The
development of the presentation should be considered in determining its
purpose. Pp. 19—26.
(a) Sto ne is the Court’s initial benchmark as its only
case dealing with the constitutionality of displaying the Commandments. It
recognized that the Commandments are an “instrument of religion” and that,
at least on the facts before the Court, their text’s display could
presumptively be understood as meant to advance religion: although state law
specifically required their posting in classrooms, their isolated exhibition
did not allow even for an argument that secular education explained their
being there. 449 U.S., at 41, n. 3. But Stone did not purport to decide the
constitutionality of every possible way the government might set out the
Commandments, and under the Establishment Clause detail is key, County of
Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492
U.S. 573, 595. Hence, the Court looks to the record showing the progression
leading up to the Commandments’ third display, beginning with the first. Pp.
19—20.
(b) There< I> are two obvious similarities between the
display Stone rejected and the first one here: both set out the
Commandments’ text as distinct from any traditionally symbolic
representation like blank tablets, and each stood alone, not as part of an
arguably secular display. Stone stressed the significance of integrating the
Commandments into a secular scheme to forestall the broadcast of an
otherwise clearly religious message, 449 U.S., at 42, and for good reason,
the Commandments being a central point of reference in the religious and
moral history of Jews and Christians. They proclaim the existence of a
monotheistic god (no other gods), regulate details of religious obligation
(no graven images, sabbath breaking, or vain oath swearing), and
unmistakably rest even the universally accepted prohibitions (as against
murder, theft, etc.) on the sanction of the divinity proclaimed at the
text’s beginning. Displaying that text is thus different from symbolic
representation, like tablets with 10 roman numerals, which could be seen as
alluding to a general notion of law, not a sectarian conception of faith.
Where the text is set out, the insistence of the religious message is hard
to avoid in the absence of a context plausibly suggesting a message going
beyond an excuse to promote the religious point of view. The display in
Stone had no such context, and the Counties’ solo exhibit here did nothing
more to counter the sectarian implication than the Stone postings. The
reasonable observer could only think that the Counties meant to emphasize
and celebrate the Commandments’ religious message. Pp. 20—21.
(c) The Counties’ second display, unlike the first, did
not hang the Commandments in isolation, but included the statement of the
government’s purpose expressly set out in the county resolutions, and
underscored it by juxtaposing the Commandments to other documents whose
references to God were highlighted as their sole common element. The
display’s unstinting focus was on religious passages, showing that the
Counties posted the Commandments precisely because of their sectarian
content. That demonstration of the government’s objective was enhanced by
serial religious references and the accompanying resolutions’ claim about
the embodiment of ethics in Christ. Together, the display and resolution
presented an indisputable, and undisputed, showing of an impermissible
purpose. Pp. 21—22.
(d) The lower courts’ conclusion that no legitimizing
secular purpose prompted the Counties’ third display, the “Foundations of
American Law and Government” exhibit, is amply justified. That display
placed the Commandments in the company of other documents the Counties
deemed especially significant in the historical foundation of American
government. In trying to persuade the District Court to lift the preliminary
injunction, the Counties cited several new purposes for the third version,
including a desire to educate County citizens as to the significance of the
documents displayed. The Counties’ claims, however, persuaded neither that
court, which was intimately familiar with this litigation’s details, nor the
Sixth Circuit. Where both lower courts were unable to discern an arguably
valid secular purpose, this Court normally should hesitate to find one.
Edwards v. Aguillard, 482 U.S. 578, 594. The Counties’ new statements of
purpose were presented only as a litigating position, there being no further
authorizing resolutions by the Counties’ governing boards. And although
repeal of the earlier county authorizations would not have erased them from
the record of evidence bearing on current purpose, the extraordinary
resolutions for the second displays passed just months earlier were not
repealed or otherwise repudiated. Indeed, the sectarian spirit of the
resolutions found enhanced expression in the third display, which quoted
more of the Commandment’s purely religious language than the first two
displays had done. No reasonable observer, therefore, could accept the claim
that the Counties had cast off the objective so unmistakable in the earlier
displays. Nor did the selection of posted material suggest a clear theme
that might prevail over evidence of the continuing religious object. For
example, it is at least odd in a collection of documents said to be
“foundational” to include a patriotic anthem, but to omit the Fourteenth
Amendment, the most significant structural provision adopted since the
original framing. An observer would probably suspect the Counties of
reaching for any way to keep a religious document on the walls of
courthouses constitutionally required to embody religious neutrality. Pp.
22—25.
(e) In holding that the preliminary injunction was
adequately supported by evidence that the Counties’ purpose had not changed
at the third stage, the Court does not decide that the Counties’ past
actions forever taint any effort on their part to deal with the subject
matter. The Court holds only that purpose is to be taken seriously under the
Establishment Clause and is to be understood in light of context. District
courts are fully capable of adjusting preliminary relief to take account of
genuine changes in constitutionally significant conditions. Nor does the
Court hold that a sacred text can never be integrated constitutionally into
a governmental display on law or history. Its own courtroom frieze depicts
Moses holding tablets exhibiting a portion of the secularly phrased
Commandments; in the company of 17 other lawgivers, most of them secular
figures, there is no risk that Moses would strike an observer as evidence
that the National Government was violating religious neutrality. P. 26.
354 F.3d 438, affirmed.
Souter, J., delivered the opinion of the Court, in which
Stevens, O’Connor, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed a
concurring opinion. Scalia, J., filed a dissenting opinion, in which
Rehnquist, C. J., and Thomas, J., joined, and in which Kennedy, J., joined
as to Parts II and III.
Opinion
Opinion of the Court
NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United States Reports.Readers
are requested to notify the Reporter of Decisions, Supreme Court of the
United States, Washington, D. C. 20543, of any typographical or other formal
errors, in order that corrections may be made before the preliminary print
goes to press.
SUPREME COURT OF THE UNITED STATES
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No. 03—1693
McCREARY COUNTY, KENTUCKY, et al., PETI- TIONERS v.
AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY et al. ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [June 27, 2005]
Justice Souter delivered the opinion of the Court.
Executives of two counties posted a version of the Ten
Commandments on the walls of their courthouses. After suits were filed
charging violations of the Establishment Clause, the legislative body of
each county adopted a resolution calling for a more extensive exhibit meant
to show that the Commandments are Kentucky’s “precedent legal code,” Def.
Exh. 1 in Memorandum in Support of Defendants’ Motion to Dismiss in Civ. A.
No. 99—507, p. 1 (ED Ky.) (hereinafter Def. Exh. 1). The result in each
instance was a modified display of the Commandments surrounded by texts
containing religious references as their sole common element. After changing
counsel, the counties revised the exhibits again by eliminating some
documents, expanding the text set out in another, and adding some new ones.
The issues are whether a determination of the counties’
purpose is a sound basis for ruling on the Establishment Clause complaints,
and whether evaluation of the counties’ claim of secular purpose for the
ultimate displays may take their evolution into account. We hold that the
counties’ manifest objective may be dispositive of the constitutional
enquiry, and that the development of the presentation should be considered
when determining its purpose.
I
In the summer of 1999, petitioners McCreary County and
Pulaski County, Kentucky (hereinafter Counties), put up in their respective
courthouses large, gold-framed copies of an abridged text of the King James
version of the Ten Commandments, including a citation to the Book of
Exodus.1 In McCreary County, the placement of the Commandments responded to
an order of the county legislative body requiring “the display [to] be
posted in ‘a very high traffic area’ of the courthouse.” 96 F. Supp. 2d 679,
684 (ED Ky. 2000). In Pulaski County, amidst reported controversy over the
propriety of the display, the Commandments were hung in a ceremony presided
over by the county Judge-Executive, who called them “good rules to live by”
and who recounted the story of an astronaut who became convinced “there must
be a divine God” after viewing the Earth from the moon. Dodson, Commonwealth
Journal, Jul. 25, 1999, p. A1, col. 2, in Memorandum in Support of
Plaintiffs’ Motion for Preliminary Injunction in Civ. A. No. 99—509 (ED Ky.)
(internal quotation marks omitted). The Judge-Executive was accompanied by
the pastor of his church, who called the Commandments “a creed of ethics”
and told the press after the ceremony that displaying the Commandments was
“one of the greatest things the judge could have done to close out the
millennium.” Id., at A2, col. 3 (internal quotation marks omitted). In both
counties, this was the version of the Commandments posted:
“Thou shalt have no other gods before me.
“Thou shalt not make unto thee any graven images.
“Thou shalt not take the name of the Lord thy God in
vain.
“Remember the sabbath day, to keep it holy.
“Honor thy father and thy mother.
“Thou shalt not kill.
“Thou shalt not commit adultery.
“Thou shalt not steal.
“Thou shalt not bear false witness.
“Thou shalt not covet.
“Exodus 20:3—17.”2 Def. Exh. 9 in Memorandum in Support
of Defendants’ Motion to Dismiss in Civ. A. No. 99—507 (ED Ky.) (hereinafter
Def. Exh. 9).
In each county, the hallway display was “readily visible
to … county citizens who use the courthouse to conduct their civic business,
to obtain or renew driver’s licenses and permits, to register cars, to pay
local taxes, and to register to vote.” 96 F. Supp. 2d., at 684; American
Civil Liberties Union of Kentucky v. Pulaski County, Kentucky, 96 F. Supp.
2d 691, 695 (ED Ky. 2000).
In November 1999, respondents American Civil Liberties
Union of Kentucky et al. sued the Counties in Federal District Court under
Rev. Stat. §1979, 42 U.S.C. § 1983 and sought a preliminary injunction
against maintaining the displays, which the ACLU charged were violations of
the prohibition of religious establishment included in the First Amendment
of the Constitution.3 Within a month, and before the District Court had
responded to the request for injunction, the legislative body of each County
authorized a second, expanded display, by nearly identical resolutions
reciting that the Ten Commandments are “the precedent legal code upon which
the civil and criminal codes of … Kentucky are founded,” and stating several
grounds for taking that position: that “the Ten Commandments are codified in
Kentucky’s civil and criminal laws”; that the Kentucky House of
Representatives had in 1993 “voted unanimously … to adjourn … ‘in
remembrance and honor of Jesus Christ, the Prince of Ethics’ ”; that the
“County Judge and … magistrates agree with the arguments set out by Judge
[Roy] Moore” in defense of his “display [of] the Ten Commandments in his
courtroom”; and that the “Founding Father[s] [had an] explicit understanding
of the duty of elected officials to publicly acknowledge God as the source
of America’s strength and direction.” Def. Exh. 1, at 1—3, 6.
As directed by the resolutions, the Counties expanded the
displays of the Ten Commandments in their locations, presumably along with
copies of the resolution, which instructed that it, too, be posted, id., at
9. In addition to the first display’s large framed copy of the edited King
James version of the Commandments,4 the second included eight other
documents in smaller frames, each either having a religious theme or
excerpted to highlight a religious element. The documents were the “endowed
by their Creator” passage from the Declaration of Independence; the Preamble
to the Constitution of Kentucky; the national motto, “In God We Trust”; a
page from the Congressional Record of February 2, 1983, proclaiming the Year
of the Bible and including a statement of the Ten Commandments; a
proclamation by President Abraham Lincoln designating April 30, 1863, a
National Day of Prayer and Humiliation; an excerpt from President Lincoln’s
“Reply to Loyal Colored People of Baltimore upon Presentation of a Bible,”
reading that “[t]he Bible is the best gift God has ever given to man”; a
proclamation by President Reagan marking 1983 the Year of the Bible; and the
Mayflower Compact. 96 F. Supp. 2d, at 684; 96 F. Supp. 2d, at 695—696.
After argument, the District Court entered a preliminary
injunction on May 5, 2000, ordering that the “display … be removed from
[each] County Courthouse IMMEDIATELY” and that no county official “erect or
cause to be erected similar displays.” 96 F. Supp. 2d, at 691; 96 F. Supp.
2d, at 702—703. The court’s analysis of the situation followed the
three-part formulation first stated in Lemon v. Kurtzman, 403 U.S. 602
(1971). As to governmental purpose, it concluded that the original display
“lack[ed] any secular purpose” because the Commandments “are a distinctly
religious document, believed by many Christians and Jews to be the direct
and revealed word of God.” 96 F. Supp. 2d, at 686; 96 F. Supp. 2d, at 698.
Although the Counties had maintained that the original display was meant to
be educational, “[t]he narrow scope of the display–a single religious text
unaccompanied by any interpretation explaining its role as a foundational
document–can hardly be said to present meaningfully the story of this
country’s religious traditions.” 96 F. Supp. 2d, at 686—687; 96 F. Supp. 2d,
at 698. The court found that the second version also “clearly lack[ed] a
secular purpose” because the “Count[ies] narrowly tailored [their] selection
of foundational documents to incorporate only those with specific references
to Christianity.”5 96 F. Supp. 2d, at 687; 96 F. Supp. 2d, at 699.
The Counties filed a notice of appeal from the
preliminary injunction but voluntarily dismissed it after hiring new
lawyers. They then installed another display in each courthouse, the third
within a year. No new resolution authorized this one, nor did the Counties
repeal the resolutions that preceded the second. The posting consists of
nine framed documents of equal size, one of them setting out the Ten
Commandments explicitly identified as the “King James Version” at Exodus
20:3—17, 145 F. Supp. 2d 845, 847 (ED Ky. 2001) and quoted at greater length
than before:
“Thou shalt have no other gods before me.
“Thou shalt not make unto thee any graven image, or any
likeness of any thing that is in heaven above, or that is in the earth
beneath, or that is in the water underneath the earth: Thou shalt not bow
down thyself to them, nor serve them: for I the LORD thy God am a jealous
God, visiting the iniquity of the fathers upon the children unto the third
and fourth generation of them that hate me.
“Thou shalt not take the name of the LORD thy God in
vain: for the LORD will not hold him guiltless that taketh his name in vain.
“Remember the sabbath day, to keep it holy.
“Honour thy father and thy mother: that thy days may be
long upon the land which the LORD thy God giveth thee.
“Thou shalt not kill.
“Thou shalt not commit adultery.
“Thou shalt not steal.
“Thou shalt not bear false witness against thy neighbour.
“Thou shalt not covet thy neighbour’s house, thou shalt
not covet th[y] neighbor’s wife, nor his manservant, nor his maidservant,
nor his ox, nor his ass, nor anything that is th[y] neighbour’s.” App. to
Pet. for Cert. 189a.
Assembled with the Commandments are framed copies of the
Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics
of the Star Spangled Banner, the Mayflower Compact, the National Motto, the
Preamble to the Kentucky Constitution, and a picture of Lady Justice. The
collection is entitled “The Foundations of American Law and Government
Display” and each document comes with a statement about its historical and
legal significance. The comment on the Ten Commandments reads:
“The Ten Commandments have profoundly influenced the
formation of Western legal thought and the formation of our country. That
influence is clearly seen in the Declaration of Independence, which declared
that ‘We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty, and the pursuit of Happiness.’
The Ten Commandments provide the moral background of the Declaration of
Independence and the foundation of our legal tradition.” Id., at 180a.
The ACLU moved to supplement the preliminary injunction
to enjoin the Counties’ third display,6 and the Counties responded with
several explanations for the new version, including desires “to demonstrate
that the Ten Commandments were part of the foundation of American Law and
Government” and “to educate the citizens of the county regarding some of the
documents that played a significant role in the foundation of our system of
law and government.” 145 F. Supp. 2d, at 848 (internal quotation marks
omitted). The court, however, took the objective of proclaiming the
Commandments’ foundational value as “a religious, rather than secular,
purpose” under Stone v. Graham, 449 U.S. 39 (1980) (per curiam), 145 F.
Supp. 2d, at 849, and found that the assertion that the Counties’ broader
educational goals are secular “crumble[s] … upon an examination of the
history of this litigation,” Ibid. In light of the Counties’ decision to
post the Commandments by themselves in the first instance, contrary to
Stone, and later to “accentuat[e]” the religious objective by surrounding
the Commandments with “specific references to Christianity,” the District
Court understood the Counties’ “clear” purpose as being to post the
Commandments, not to educate.7 145 F. Supp. 2d, at 849—850 (internal
quotation marks omitted).
As requested, the trial court supplemented the
injunction, and a divided panel of the Court of Appeals for the Sixth
Circuit affirmed. The Circuit majority stressed that under Stone, displaying
the Commandments bespeaks a religious object unless they are integrated with
other material so as to carry “a secular message,” 354 F.3d 438, 449 (2003).
The majority judges saw no integration here because of a “lack of a
demonstrated analytical or historical connection [between the Commandments
and] the other documents.” Id., at 451. They noted in particular that the
Counties offered no support for their claim that the Ten Commandments
“provide[d] the moral backdrop” to the Declaration of Independence or
otherwise “profoundly influenced” it. Ibid. (Internal quotation marks
omitted). The majority found that the Counties’ purpose was religious, not
educational, given the nature of the Commandments as “an active symbol of
religion [stating] ‘the religious duties of believers,’ ” Id., at 455. The
judges in the majority understood the identical displays to emphasize “a
single religious influence, with no mention of any other religious or
secular influences,” id., at 454, and they took the very history of the
litigation as evidence of the Counties’ religious objective, id., at 457.
Judge Ryan dissented on the basis of wide recognition
that religion, and the Ten Commandments in particular, have played a
foundational part in the evolution of American law and government; he saw no
reason to gainsay the Counties’ claim of secular purposes. Id., at 472—473.
The dissent denied that the prior displays should have any bearing on the
constitutionality of the current one: a “history of unconstitutional
displays can[not] be used as a sword to strike down an otherwise
constitutional display.”8 Id., at 478.
We granted certiorari, 543 U.S. ___ (2004), and now
affirm.
II
Twenty-five years ago in a case prompted by posting the
Ten Commandments in Kentucky’s public schools, this Court recognized that
the Commandments “are undeniably a sacred text in the Jewish and Christian
faiths” and held that their display in public classrooms violated the First
Amendment’s bar against establishment of religion. Stone, 449 U.S., at 41.
Stone found a predominantly religious purpose in the government’s posting of
the Commandments, given their prominence as “ ‘an instrument of religion,’ ”
id., at 41, n. 3 (quoting School Dist. of Abington Township v. Schempp, 374
U.S. 203, 224 (1963)). The Counties ask for a different approach here by
arguing that official purpose is unknowable and the search for it inherently
vain. In the alternative, the Counties would avoid the District Court’s
conclusion by having us limit the scope of the purpose enquiry so severely
that any trivial rationalization would suffice, under a standard oblivious
to the history of religious government action like the progression of
exhibits in this case.
A
Ever since Lemon v. Kurtzman summarized the three
familiar considerations for evaluating Establishment Clause claims, looking
to whether government action has “a secular legislative purpose” has been a
common, albeit seldom dispositive, element of our cases. 403 U.S., at 612.
Though we have found government action motivated by an illegitimate purpose
only four times since Lemon,9 and “the secular purpose requirement alone may
rarely be determinative … , it nevertheless serves an important function.”10
Wallace v. Jaffree, 472 U.S. 38, 75 (1985) (O’Connor, J., concurring in
judgment).
The touchstone for our analysis is the principle that the
“First Amendment mandates governmental neutrality between religion and
religion, and between religion and nonreligion.” Epperson v. Arkansas, 393
U.S. 97, 104 (1968); Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15—16
(1947); Wallace v. Jaffree, supra, at 53. When the government acts with the
ostensible and predominant purpose of advancing religion, it violates that
central Establishment Clause value of official religious neutrality, there
being no neutrality when the government’s ostensible object is to take
sides. Corporation of Presiding Bishop of Church of Jesus Christ of
Latter&nbhyph;day Saints v. Amos, 483 U.S. 327, 335 (1987) (“Lemon’s
‘purpose’ requirement aims at preventing [government] from abandoning
neutrality and acting with the intent of promoting a particular point of
view in religious matters”). Manifesting a purpose to favor one faith over
another, or adherence to religion generally, clashes with the
“understanding, reached … after decades of religious war, that liberty and
social stability demand a religious tolerance that respects the religious
views of all citizens … .” Zelman v. Simmons-Harris, 536 U.S. 639, 718
(2002) (Breyer, J., dissenting). By showing a purpose to favor religion, the
government “sends the … 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… .’ ” Santa Fe Independent
School Dist. v. Doe, 530 U.S. 290, 309—310 (2000) (quoting Lynch v.
Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring)).
Indeed, the purpose apparent from government action can
have an impact more significant than the result expressly decreed: when the
government maintains Sunday closing laws, it advances religion only
minimally because many working people would take the day as one of rest
regardless, but if the government justified its decision with a stated
desire for all Americans to honor Christ, the divisive thrust of the
official action would be inescapable. This is the teaching of McGowan v.
Maryland, 366 U.S. 420 (1961), which upheld Sunday closing statutes on
practical, secular grounds after finding that the government had forsaken
the religious purposes behind centuries-old predecessor laws. Id., at
449—451.
B
Despite the intuitive importance of official purpose to
the realization of Establishment Clause values, the Counties ask us to
abandon Lemon’s purpose test, or at least to truncate any enquiry into
purpose here. Their first argument is that the very consideration of purpose
is deceptive: according to them, true “purpose” is unknowable, and its
search merely an excuse for courts to act selectively and unpredictably in
picking out evidence of subjective intent. The assertions are as seismic as
they are unconvincing.
Examination of purpose is a staple of statutory
interpretation that makes up the daily fare of every appellate court in the
country, e.g., General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581,
600 (2004) (interpreting statute in light of its “text, structure, purpose,
and history”), and governmental purpose is a key element of a good deal of
constitutional doctrine, e.g., Washington v. Davis, 426 U.S. 229 (1976)
(discriminatory purpose required for Equal Protection violation); Hunt v.
Washington State Apple Advertising Comm’n, 432 U.S. 333, 352—353 (1977)
(discriminatory purpose relevant to dormant Commerce Clause claim); Church
of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (discriminatory
purpose raises level of scrutiny required by free exercise claim). With
enquiries into purpose this common, if they were nothing but hunts for
mares’ nests deflecting attention from bare judicial will, the whole notion
of purpose in law would have dropped into disrepute long ago.
But scrutinizing purpose does make practical sense, as in
Establishment Clause analysis, where an understanding of official objective
emerges from readily discoverable fact, without any judicial psychoanalysis
of a drafter’s heart of hearts. Wallace v. Jaffree, supra, at 74 (O’Connor,
J., concurring in judgment). The eyes that look to purpose belong to an “
‘objective observer,’ ” one who takes account of the traditional external
signs that show up in the “ ‘text, legislative history, and implementation
of the statute,’ ” or comparable official act. Santa Fe Independent School
Dist. v. Doe, supra, at 308 (quoting Wallace v. Jaffree, 472 U.S., at 73)
(O’Connor, J., concurring in judgment)); see also Edwards v. Aguillard, 482
U.S. 578, 594—595 (1987) (enquiry looks to “plain meaning of the statute’s
words, enlightened by their context and the contemporaneous legislative
history [and] the historical context of the statute, … and the specific
sequence of events leading to [its] passage”). There is, then, nothing
hinting at an unpredictable or disingenuous exercise when a court enquires
into purpose after a claim is raised under the Establishment Clause.
The cases with findings of a predominantly religious
purpose point to the straightforward nature of the test. In Wallace, for
example, we inferred purpose from a change of wording from an earlier
statute to a later one, each dealing with prayer in schools. 472 U.S., at
58—60. And in Edwards, we relied on a statute’s text and the detailed public
comments of its sponsor, when we sought the purpose of a state law requiring
creationism to be taught alongside evolution. 482 U.S., at 586—588. In other
cases, the government action itself bespoke the purpose, as in Abington,
where the object of required Bible study in public schools was patently
religious, 374 U.S., at 223—224; in Stone, the Court held that the
“[p]osting of religious texts on the wall serve[d] no … educational
function,” and found that if “the posted copies of the Ten Commandments
[were] to have any effect at all, it [would] be to induce the schoolchildren
to read, meditate upon, perhaps to venerate and obey, the Commandments.” 449
U.S., at 42. In each case, the government’s action was held unconstitutional
only because openly available data supported a commonsense conclusion that a
religious objective permeated the government’s action.
Nor is there any indication that the enquiry is rigged in
practice to finding a religious purpose dominant every time a case is filed.
In the past, the test has not been fatal very often, presumably because
government does not generally act unconstitutionally, with the predominant
purpose of advancing religion. That said, one consequence of the corollary
that Establishment Clause analysis does not look to the veiled psyche of
government officers could be that in some of the cases in which
establishment complaints failed, savvy officials had disguised their
religious intent so cleverly that the objective observer just missed it. But
that is no reason for great constitutional concern. If someone in the
government hides religious motive so well that the “ ‘objective observer,
acquainted with the text, legislative history, and implementation of the
statute,’ ” Santa Fe Independent School Dist. v. Doe, 530 U.S., at 308
(quoting Wallace, supra, at 73) (O’Connor, J., concurring in judgment)),
cannot see it, then without something more the government does not make a
divisive announcement that in itself amounts to taking religious sides. A
secret motive stirs up no strife and does nothing to make outsiders of
nonadherents, and it suffices to wait and see whether such government action
turns out to have (as it may even be likely to have) the illegitimate effect
of advancing religion.
C
After declining the invitation to abandon concern with
purpose wholesale, we also have to avoid the Counties’ alternative tack of
trivializing the enquiry into it. The Counties would read the cases as if
the purpose enquiry were so naive that any transparent claim to secularity
would satisfy it, and they would cut context out of the enquiry, to the
point of ignoring history, no matter what bearing it actually had on the
significance of current circumstances. There is no precedent for the
Counties’ arguments, or reason supporting them.
1
Lemon said that government action must have “a secular …
purpose,” 403 U.S., at 612, and after a host of cases it is fair to add that
although a legislature’s stated reasons will generally get deference, the
secular purpose required has to be genuine, not a sham, and not merely
secondary to a religious objective. See, e.g., Santa Fe Independent School
Dist. v. Doe, supra, at 308 (“When a governmental entity professes a secular
purpose for an arguably religious policy, the government’s characterization
is, of course, entitled to some deference. But it is nonetheless the duty of
the courts to ‘distinguis[h] a sham secular purpose from a sincere one’ ”);
Edwards, 482 U.S., at 586—587 (“While the Court is normally deferential to a
State’s articulation of a secular purpose, it is required that the statement
of such purpose be sincere and not a sham”); id., at 590, 594 (referring to
enquiry as one into “preeminent” or “primary” purpose); Stone, supra, at 41
(looking to the “pre-eminent purpose” of government action).
Even the Counties’ own cited authority confirms that we
have not made the purpose test a pushover for any secular claim. True,
Wallace said government action is tainted by its object “if it is entirely
motivated by a purpose to advance religion,” 472 U.S., at 56, a remark that
suggests, in isolation, a fairly complaisant attitude. But in that very case
the Court declined to credit Alabama’s stated secular rationale of
“accommodation” for legislation authorizing a period of silence in school
for meditation or voluntary prayer, given the implausibility of that
explanation in light of another statute already accommodating children
wishing to pray. Id., at 57, n. 45 (internal quotation marks omitted). And
it would be just as much a mistake to infer that a timid standard underlies
the statement in Lynch v. Donnelly that the purpose enquiry looks to whether
government “activity was motivated wholly by religious considerations,” 465
U.S., at 680; for two cases cited for that proposition had examined and
rejected claims of secular purposes that turned out to be implausible or
inadequate:11 Stone, 449 U.S., at 41; Abington, 374 U.S., at 223—224.12 See
also Bowen v. Kendrick, 487 U.S. 589, 602 (1988) (using the “motivated
wholly by an impermissible purpose” language, but citing Lynch and Stone).
As we said, the Court often does accept governmental statements of purpose,
in keeping with the respect owed in the first instance to such official
claims. But in those unusual cases where the claim was an apparent sham, or
the secular purpose secondary, the unsurprising results have been findings
of no adequate secular object, as against a predominantly religious one.13
2
The Counties’ second proffered limitation can be
dispatched quickly. They argue that purpose in a case like this one should
be inferred, if at all, only from the latest news about the last in a series
of governmental actions, however close they may all be in time and subject.
But the world is not made brand new every morning, and the Counties are
simply asking us to ignore perfectly probative evidence; they want an
absentminded objective observer, not one presumed to be familiar with the
history of the government’s actions and competent to learn what history has
to show, Santa Fe Independent School Dist. v. Doe, 530 U.S., at 308
(objective observer is familiar with “ ‘implementation of’ ” government
action) (quoting Wallace, supra, at 73) (O’Connor, J., concurring in
judgment)); Edwards, supra, at 595 (enquiry looks to “the historical context
of the statute … and the specific sequence of events leading to [its]
passage”); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753,
780 (1995) (O’Connor, J., concurring in part and concurring in judgment)
(“[T]he reasonable observer in the endorsement inquiry must be deemed aware
of the history and context of the community and forum in which the religious
display appears”). The Counties’ position just bucks common sense:
reasonable observers have reasonable memories, and our precedents sensibly
forbid an observer “to turn a blind eye to the context in which [the] policy
arose.”14 Santa Fe Independent School Dist. v. Doe, supra, at 315.
III
This case comes to us on appeal from a preliminary
injunction. We accordingly review the District Court’s legal rulings de
novo, and its ultimate conclusion for abuse of discretion.15 Ashcroft v.
American Civil Liberties Union, 542 U.S. 656 (2004).
We take Stone as the initial legal benchmark, our only
case dealing with the constitutionality of displaying the Commandments.
Stone recognized that the Commandments are an “instrument of religion” and
that, at least on the facts before it, the display of their text could
presumptively be understood as meant to advance religion: although state law
specifically required their posting in public school classrooms, their
isolated exhibition did not leave room even for an argument that secular
education explained their being there. 449 U.S., at 41, n. 3 (internal
quotation marks omitted). But Stone did not purport to decide the
constitutionality of every possible way the Commandments might be set out by
the government, and under the Establishment Clause detail is key. County of
Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492
U.S. 573, 595 (1989) (opinion of Blackmun, J.) (“[T]he question is what
viewers may fairly understand to be the purpose of the display. That
inquiry, of necessity, turns upon the context in which the contested object
appears”) (internal quotation marks and citation omitted). Hence, we look to
the record of evidence showing the progression leading up to the third
display of the Commandments.
A
The display rejected in Stone had two obvious
similarities to the first one in the sequence here: both set out a text of
the Commandments as distinct from any traditionally symbolic representation,
and each stood alone, not part of an arguably secular display. Stone
stressed the significance of integrating the Commandments into a secular
scheme to forestall the broadcast of an otherwise clearly religious message,
supra, at 42, and for good reason, the Commandments being a central point of
reference in the religious and moral history of Jews and Christians. They
proclaim the existence of a monotheistic god (no other gods). They regulate
details of religious obligation (no graven images, no sabbath breaking, no
vain oath swearing). And they unmistakably rest even the universally
accepted prohibitions (as against murder, theft, and the like) on the
sanction of the divinity proclaimed at the beginning of the text. Displaying
that text is thus different from a symbolic depiction, like tablets with 10
roman numerals, which could be seen as alluding to a general notion of law,
not a sectarian conception of faith. Where the text is set out, the
insistence of the religious message is hard to avoid in the absence of a
context plausibly suggesting a message going beyond an excuse to promote the
religious point of view. The display in Stone had no context that might have
indicated an object beyond the religious character of the text, and the
Counties’ solo exhibit here did nothing more to counter the sectarian
implication than the postings at issue in Stone.16 See also County of
Allegheny, supra, at 598 (“Here, unlike in Lynch [v. Donnelly], nothing in
the context of the display detracts from the crčche’s religious
message”). Actually, the posting by the Counties lacked even the Stone
display’s implausible disclaimer that the Commandments were set out to show
their effect on the civil law.17 What is more, at the ceremony for posting
the framed Commandments in Pulaski County, the county executive was
accompanied by his pastor, who testified to the certainty of the existence
of God. The reasonable observer could only think that the Counties meant to
emphasize and celebrate the Commandments’ religious message.
This is not to deny that the Commandments have had
influence on civil or secular law; a major text of a majority religion is
bound to be felt. The point is simply that the original text viewed in its
entirety is an unmistakably religious statement dealing with religious
obligations and with morality subject to religious sanction. When the
government initiates an effort to place this statement alone in public view,
a religious object is unmistakable.
B
Once the Counties were sued, they modified the exhibits
and invited additional insight into their purpose in a display that hung for
about six months. This new one was the product of forthright and nearly
identical Pulaski and McCreary County resolutions listing a series of
American historical documents with theistic and Christian references, which
were to be posted in order to furnish a setting for displaying the Ten
Commandments and any “other Kentucky and American historical documen[t]”
without raising concern about “any Christian or religious references” in
them. Def. Exh. 1, at 1. As mentioned, the resolutions expressed support for
an Alabama judge who posted the Commandments in his courtroom, and cited the
fact the Kentucky Legislature once adjourned a session in honor of “Jesus
Christ, Prince of Ethics.” Id., at 2—3.
In this second display, unlike the first, the
Commandments were not hung in isolation, merely leaving the Counties’
purpose to emerge from the pervasively religious text of the Commandments
themselves. Instead, the second version was required to include the
statement of the government’s purpose expressly set out in the county
resolutions, and underscored it by juxtaposing the Commandments to other
documents with highlighted references to God as their sole common element.
The display’s unstinting focus was on religious passages, showing that the
Counties were posting the Commandments precisely because of their sectarian
content. That demonstration of the government’s objective was enhanced by
serial religious references and the accompanying resolution’s claim about
the embodiment of ethics in Christ. Together, the display and resolution
presented an indisputable, and undisputed, showing of an impermissible
purpose.
Today, the Counties make no attempt to defend their
undeniable objective, but instead hopefully describe version two as “dead
and buried.” Reply Brief for Petitioners 15. Their refusal to defend the
second display is understandable, but the reasonable observer could not
forget it.
C
1
After the Counties changed lawyers, they mounted a third
display, without a new resolution or repeal of the old one. The result was
the “Foundations of American Law and Government” exhibit, which placed the
Commandments in the company of other documents the Counties thought
especially significant in the historical foundation of American government.
In trying to persuade the District Court to lift the preliminary injunction,
the Counties cited several new purposes for the third version, including a
desire “to educate the citizens of the county regarding some of the
documents that played a significant role in the foundation of our system of
law and government.”18 145 F. Supp. 2d, at 848 (internal quotation marks
omitted). The Counties’ claims did not, however, persuade the court,
intimately familiar with the details of this litigation, or the Court of
Appeals, neither of which found a legitimizing secular purpose in this third
version of the display. “ ‘When both courts [that have already passed on the
case] are unable to discern an arguably valid secular purpose, this Court
normally should hesitate to find one.’ ” Edwards, 482 U.S., at 594, n. 15
(quoting Wallace, 472 U.S., at 66 (Powell, J., concurring)). The conclusions
of the two courts preceding us in this case are well warranted.
These new statements of purpose were presented only as a
litigating position, there being no further authorizing action by the
Counties’ governing boards. And although repeal of the earlier county
authorizations would not have erased them from the record of evidence
bearing on current purpose,19 the extraordinary resolutions for the second
display passed just months earlier were not repealed or otherwise
repudiated.20 Indeed, the sectarian spirit of the common resolution found
enhanced expression in the third display, which quoted more of the purely
religious language of the Commandments than the first two displays had done;
for additions, see App. to Pet. for Cert. 189a (“I the LORD thy God am a
jealous God”) (text of Second Commandment in third display); (“the LORD will
not hold him guiltless that taketh his name in vain”) (from text of Third
Commandment); and (“that thy days may be long upon the land which the LORD
thy God giveth thee”) (text of Fifth Commandment). No reasonable observer
could swallow the claim that the Counties had cast off the objective so
unmistakable in the earlier displays.
Nor did the selection of posted material suggest a clear
theme that might prevail over evidence of the continuing religious object.
In a collection of documents said to be “foundational” to American
government, it is at least odd to include a patriotic anthem, but to omit
the Fourteenth Amendment, the most significant structural provision adopted
since the original Framing. And it is no less baffling to leave out the
original Constitution of 1787 while quoting the 1215 Magna Carta even to the
point of its declaration that “fish-weirs shall be removed from the Thames.”
App. to Pet. for Cert. 205a, ¶33. If an observer found these choices and
omissions perplexing in isolation, he would be puzzled for a different
reason when he read the Declaration of Independence seeking confirmation for
the Counties’ posted explanation that the “Ten Commandments’ … influence is
clearly seen in the Declaration,” id., at 180a; in fact the observer would
find that the Commandments are sanctioned as divine imperatives, while the
Declaration of Independence holds that the authority of government to
enforce the law derives “from the consent of the governed,” id., at 190a.21
If the observer had not thrown up his hands, he would probably suspect that
the Counties were simply reaching for any way to keep a religious document
on the walls of courthouses constitutionally required to embody religious
neutrality.22
2
In holding the preliminary injunction adequately
supported by evidence that the Counties’ purpose had not changed at the
third stage, we do not decide that the Counties’ past actions forever taint
any effort on their part to deal with the subject matter. We hold only that
purpose needs to be taken seriously under the Establishment Clause and needs
to be understood in light of context; an implausible claim that governmental
purpose has changed should not carry the day in a court of law any more than
in a head with common sense. It is enough to say here that district courts
are fully capable of adjusting preliminary relief to take account of genuine
changes in constitutionally significant conditions. See Ashcroft v. American
Civil Liberties Union, 542 U.S. 656 (2004).
Nor do we have occasion here to hold that a sacred text
can never be integrated constitutionally into a governmental display on the
subject of law, or American history. We do not forget, and in this
litigation have frequently been reminded, that our own courtroom frieze was
deliberately designed in the exercise of governmental authority so as to
include the figure of Moses holding tablets exhibiting a portion of the
Hebrew text of the later, secularly phrased Commandments; in the company of
17 other lawgivers, most of them secular figures, there is no risk that
Moses would strike an observer as evidence that the National Government was
violating neutrality in religion.23
IV
The importance of neutrality as an interpretive guide is
no less true now than it was when the Court broached the principle in
Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947), and a word needs to be
said about the different view taken in today’s dissent. We all agree, of
course, on the need for some interpretative help. The First Amendment
contains no textual definition of “establishment,” and the term is certainly
not self-defining. No one contends that the prohibition of establishment
stops at a designation of a national (or with Fourteenth Amendment
incorporation, Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), a state)
church, but nothing in the text says just how much more it covers. There is
no simple answer, for more than one reason.
The prohibition on establishment covers a variety of
issues from prayer in widely varying government settings, to financial aid
for religious individuals and institutions, to comment on religious
questions. In these varied settings, issues of about interpreting inexact
Establishment Clause language, like difficult interpretative issues
generally, arise from the tension of competing values, each constitutionally
respectable, but none open to realization to the logical limit.
The First Amendment has not one but two clauses tied to
“religion,” the second forbidding any prohibition on the “the free exercise
thereof,” and sometimes, the two clauses compete: spending government money
on the clergy looks like establishing religion, but if the government cannot
pay for military chaplains a good many soldiers and sailors would be kept
from the opportunity to exercise their chosen religions. See Cutter v.
Wilkinson, 544 U.S. ___, ___ (2005) (slip. op., at 8—9). At other times,
limits on governmental action that might make sense as a way to avoid
establishment could arguably limit freedom of speech when the speaking is
done under government auspices. Rosenberger v. Rector and Visitors of Univ.
of Va., 515 U.S. 819 (1995). The dissent, then, is wrong to read cases like
Walz v. Tax Comm’n of City of New York, 397 U.S. 664 (1970), as a rejection
of neutrality on its own terms, post, at 7—8, for trade-offs are inevitable,
and an elegant interpretative rule to draw the line in all the multifarious
situations is not be had.
Given the variety of interpretative problems, the
principle of neutrality has provided a good sense of direction: the
government may not favor one religion over another, or religion over
irreligion, religious choice being the prerogative of individuals under the
Free Exercise Clause. The principle has been helpful simply because it
responds to one of the major concerns that prompted adoption of the Religion
Clauses. The Framers and the citizens of their time intended not only to
protect the integrity of individual conscience in religious matters, Wallace
v. Jaffree, 472 U.S., at 52—54, and n. 38, but to guard against the civic
divisiveness that follows when the Government weighs in on one side of
religious debate; nothing does a better job of roiling society, a point that
needed no explanation to the descendants of English Puritans and Cavaliers
(or Massachusetts Puritans and Baptists). E.g., Everson, supra, at 8 (“A
large proportion of the early settlers of this country came here from Europe
to escape [religious persecution]”). A sense of the past thus points to
governmental neutrality as an objective of the Establishment Clause, and a
sensible standard for applying it. To be sure, given its generality as a
principle, an appeal to neutrality alone cannot possibly lay every issue to
rest, or tell us what issues on the margins are substantial enough for
constitutional significance, a point that has been clear from the Founding
era to modern times. E.g., Letter from J. Madison to R. Adams (1832), in 5
The Founders’ Constitution at 107 (P. Kurland & R. Lerner eds. 1987) (“[In
calling for separation] I must admit moreover that it may not be easy, in
every possible case, to trace the line of separation between the rights of
religion and the Civil authority with such distinctness as to avoid
collisions & doubts on unessential points”); Sherbert v. Verner, 374 U.S.
398, 422 (1963) (Harlan, J., dissenting) (“The constitutional obligation of
‘neutrality’ … is not so narrow a channel that the slightest deviation from
an absolutely straight course leads to condemnation”). But invoking
neutrality is a prudent way of keeping sight of something the Framers of the
First Amendment thought important.
The dissent, however, puts forward a limitation on the
application of the neutrality principle, with citations to historical
evidence said to show that the Framers understood the ban on establishment
of religion as sufficiently narrow to allow the government to espouse
submission to the divine will. The dissent identifies God as the God of
monotheism, all of whose three principal strains (Jewish, Christian, and
Muslim) acknowledge the religious importance of the Ten Commandments. Post,
at 9—10. On the dissent’s view, it apparently follows that even rigorous
espousal of a common element of this common monotheism, is consistent with
the establishment ban.
But the dissent’s argument for the original understanding
is flawed from the outset by its failure to consider the full range of
evidence showing what the Framers believed. The dissent is certainly correct
in putting forward evidence that some of the Framers thought some
endorsement of religion was compatible with the establishment ban; the
dissent quotes the first President as stating that “national morality
[cannot] prevail in exclusion of religious principle,” for example, post, at
3, and it cites his first Thanksgiving proclamation giving thanks to God,
post, at 2 (internal quotation marks omitted). Surely if expressions like
these from Washington and his contemporaries were all we had to go on, there
would be a good case that the neutrality principle has the effect of
broadening the ban on establishment beyond the Framers’ understanding of it
(although there would, of course, still be the question of whether the
historical case could overcome some 60 years of precedent taking neutrality
as its guiding principle).24
But the fact is that we do have more to go on, for there
is also evidence supporting the proposition that the Framers intended the
Establishment Clause to require governmental neutrality in matters of
religion, including neutrality in statements acknowledging religion. The
very language of the Establishment Clause represented a significant
departure from early drafts that merely prohibited a single national
religion, and, the final language instead “extended [the] prohibition to
state support for ‘religion’ in general.” See Lee v. Weisman, 505 U.S. 577,
614—615 (1992) (Souter, J., concurring) (tracing development of language).
The historical record, moreover, is complicated beyond
the dissent’s account by the writings and practices of figures no less
influential than Thomas Jefferson and James Madison. Jefferson, for example,
refused to issue Thanksgiving Proclamations because he believed that they
violated the Constitution. See Letter to S. Miller (Jan. 23, 1808), in 5 The
Founders’ Constitution at 98. And Madison, whom the dissent claims as
supporting its thesis, post, at 4, criticized Virginia’s general assessment
tax not just because it required people to donate “three pence” to religion,
but because “it is itself a signal of persecution. It degrades from the
equal rank of Citizens all those whose opinions in Religion do not bend to
those of the Legislative authority.” 505 U.S., at 622 (internal quotation
marks omitted); see also Letter from J. Madison to E. Livingston (July 10,
1822), in 5 The Founders’ Constitution, at 106 (“[R]eligion & Govt. will
both exist in greater purity, the less they are mixed together”); Letter
from J. Madison to J. Adams (Sept. 1833) in Religion and Politics in the
Early Republic 120 (D. Dresibach ed. 1996) (stating that with respect to
religion and government the “tendency to a usurpation on one side, or the
other, or to a corrupting coalition or alliance between them, will be best
guarded against by an entire abstinence of the Government from
interference”); Van Orden v. Perry, 545 U.S. ___ (2005) (Stevens, J.,
dissenting) (slip op., at 19-20).25
The fair inference is that there was no common
understanding about the limits of the establishment prohibition, and the
dissent’s conclusion that its narrower view was the original understanding,
post, at 2—3, stretches the evidence beyond tensile capacity. What the
evidence does show is a group of statesmen, like others before and after
them, who proposed a guarantee with contours not wholly worked out, leaving
the Establishment Clause with edges still to be determined. And none the
worse for that. Indeterminate edges are the kind to have in a constitution
meant to endure, and to meet “exigencies which, if foreseen at all, must
have been seen dimly, and which can be best provided for as they occur.”
McCulloch v. Maryland, 4 Wheat. 316, 415 (1819).
While the dissent fails to show a consistent original
understanding from which to argue that the neutrality principle should be
rejected, it does manage to deliver a surprise. As mentioned, the dissent
says that the deity the Framers had in mind was the God of monotheism, with
the consequence that government may espouse a tenet of traditional
monotheism. This is truly a remarkable view. Other members of the Court have
dissented on the ground that the Establishment Clause bars nothing more than
governmental preference for one religion over another, e.g., Wallace v.
Jaffree, 472 U.S., at 98—99 (Rehnquist, J., dissenting), but at least
religion has previously been treated inclusively. Today’s dissent, however,
apparently means that government should be free to approve the core beliefs
of a favored religion over the tenets of others, a view that should trouble
anyone who prizes religious liberty. Certainly history cannot justify it; on
the contrary, history shows that the religion of concern to the Framers was
not that of the monotheistic faiths generally, but Christianity in
particular, a fact that no member of this Court takes as a premise for
construing the Religion Clauses. Justice Story probably reflected the
thinking of the framing generation when he wrote in his Commentaries that
the purpose of the Clause was “not to countenance, much less to advance,
Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to
exclude all rivalry among Christian sects.” R. Cord, Separation of Church
and State: Historical Fact and Current Fiction 13 (1988) (emphasis omitted).
The Framers would, therefore, almost certainly object to the dissent’s
unstated reasoning that because Christianity was a monotheistic “religion,”
monotheism with Mosaic antecedents should be a touchstone of establishment
interpretation.26 Even on originalist critiques of existing precedent there
is, it seems, no escape from interpretative consequences that would surprise
the Framers. Thus, it appears to be common ground in the interpretation of a
Constitution “intended to endure for ages to come,” McCulloch v. Maryland,
supra, at 415, that applications unanticipated by the Framers are
inevitable.
Historical evidence thus supports no solid argument for
changing course (whatever force the argument might have when directed at the
existing precedent), whereas public discourse at the present time certainly
raises no doubt about the value of the interpretative approach invoked for
60 years now. We are centuries away from the St. Bartholomew’s Day massacre
and the treatment of heretics in early Massachusetts, but the divisiveness
of religion in current public life is inescapable. This is no time to deny
the prudence of understanding the Establishment Clause to require the
Government to stay neutral on religious belief, which is reserved for the
conscience of the individual.
V
Given the ample support for the District Court’s finding
of a predominantly religious purpose behind the Counties’ third display, we
affirm the Sixth Circuit in upholding the preliminary injunction.
It is so ordered.
--------------------------------------------------------------------------------
Notes 1. We do not consider here a display of the Ten
Commandments in schoolrooms in Harlan County, Kentucky, that was litigated
in consolidated proceedings in the District Court and Court of Appeals. That
display is the subject of a separate petition to this Court.
2. This text comes from a record exhibit showing the
Pulaski County Commandments that were part of the County’s first and second
displays. The District Court found that the displays in each County were
functionally identical. 96 F. Supp. 2d 679, 682, n. 2 (ED Ky. 2000); 96 F.
Supp. 2d 691, 693, n. 2 (ED Ky. 2000).
3. The First Amendment provides that “Congress shall make
no law respecting an establishment of religion, or prohibiting the free
exercise thereof … .” This prohibition of establishment applies to “the
States and their political subdivisions” through the Fourteenth Amendment.
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 301 (2000)
4. The District Court noted that there was some confusion
as to whether the Ten Commandments hung independently in the second display,
or were incorporated into the copy of the page from the Congressional Record
declaring 1983 “the Year of the Bible.” 96 F. Supp. 2d, at 684, and n. 4; 96
F. Supp. 2d, at 695—696, and n. 4. The exhibits in the record depict the
Commandments hanging as a separate item, Def. Exh. 9, and that is more
consistent with the Counties’ description of the second display in this
Court. “[After erecting the first display] Petitioners posted additional
donated documents… . This display consisted of the Ten Commandments along
with other historical documents.” Brief for Petitioners 2. Like the District
Court, we find our analysis applies equally to either format.
5. The court also found that the display had the effect
of endorsing religion: “Removed from their historical context and placed
with other documents with which the only common link is religion, the
documents have the undeniable effect of endorsing religion.” 96 F. Supp. 2d,
at 688; 96 F. Supp. 2d, at 699—700.
6. Before the District Court issued the modified
injunction, the Counties removed the label of “King James Version” and the
citation to Exodus. 145 F. Supp. 2d 845, 847 (ED Ky. 2001).
7. The Court also found that the effect of the third
display was to endorse religion because the “reasonable observer will see
one religious code placed alongside eight political or patriotic documents,
and will understand that the counties promote that one religious code as
being on a par with our nation’s most cherished secular symbols and
documents” and because the “reasonable observer [would know] something of
the controversy surrounding these displays, which has focused on only one of
the nine framed documents: the Ten Commandments.” Id., at 851, 852.
8. The Sixth Circuit did not decide whether the display
had the impermissible effect of advancing religion because one judge, having
found the display motivated by a religious purpose, did not reach that
issue. 354 F.3d, at 462 (Gibbons, J., concurring). The other judge in the
majority concluded that a reasonable observer would find that the display
had the effect of endorsing religion given the lack of analytical connection
between the Commandments and the other documents in the display, the
courthouse location of the display, and the history of the displays. Id., at
458—459. The dissent found no effect of endorsement because it concluded
that a reasonable observer would only see that the County had merely
acknowledged the foundational role of the Ten Commandments rather than
endorsed their religious content. Id., at 479—480.
9. Stone v. Graham, 449 U.S. 39, 41 (1980) (per curiam);
Wallace v. Jaffree, 472 U.S. 38, 56—61 (1985); Edwards v. Aguillard, 482
U.S. 578, 586—593 (1987); Santa Fe Independent School District v. Doe, 530
U.S., at 308—309.
10. At least since Everson v. Board of Ed. of Ewing, 330
U.S. 1 (1947), it has been clear that Establishment Clause doctrine lacks
the comfort of categorical absolutes. In special instances we have found
good reason to hold governmental action legitimate even where its manifest
purpose was presumably religious. See, e.g., Marsh v. Chambers, 463 U.S. 783
(1983) (upholding legislative prayer despite its religious nature). No such
reasons present themselves here.
11. Moreover, Justice O’Connor provided the fifth vote
for the Lynch majority and her concurrence emphasized the point made
implicitly in the majority opinion that a secular purpose must be serious to
be sufficient. 465 U.S., at 691 (The purpose inquiry “is not satisfied … by
the mere existence of some secular purpose, however dominated by religious
purposes”).
12. Stone found the sacred character of the Ten
Commandments preeminent despite an avowed secular purpose to show their
“adoption as the fundamental legal code of Western Civilization and the
Common Law … .” 449 U.S., at 39—40, n. 1 (internal quotation marks omitted).
And the Abington Court was unconvinced that music education or the teaching
of literature were actual secular objects behind laws requiring public
school teachers to lead recitations from the Lord’s Prayer and readings from
the Bible. 374 U.S., at 273.
13. The dissent nonetheless maintains that the purpose
test is satisfied so long as any secular purpose for the government action
is apparent. Post, at 18—19 (opinion of Scalia, J.). Leaving aside the fact
that this position is inconsistent with the language of the cases just
discussed, it would leave the purpose test with no real bite, given the ease
of finding some secular purpose for almost any government action. While
heightened deference to legislatures is appropriate for the review of
economic legislation, an approach that credits any valid purpose, no matter
how trivial, has not been the way the Court has approached government action
that implicates establishment.
14. One consequence of taking account of the purpose
underlying past actions is that the same government action may be
constitutional if taken in the first instance and unconstitutional if it has
a sectarian heritage. This presents no incongruity, however, because purpose
matters. Just as Holmes’s dog could tell the difference between being kicked
and being stumbled over, it will matter to objective observers whether
posting the Commandments follows on the heels of displays motivated by
sectarianism, or whether it lacks a history demonstrating that purpose. The
dissent, apparently not giving the reasonable observer as much credit as
Holmes’s dog, contends that in practice it will be “absur[d]” to rely upon
differences in purpose in assessing government action. Post, at 24. As an
initial matter, it will be the rare case in which one of two identical
displays violates the purpose prong. In general, like displays tend to show
like objectives and will be treated accordingly. But where one display has a
history manifesting sectarian purpose that the other lacks, it is
appropriate that they be treated differently, for the one display will be
properly understood as demonstrating a preference for one group of religious
believers as against another. See supra, at 11—12. While posting the
Commandments may not have the effect of causing greater adherence to them,
an ostensible indication of a purpose to promote a particular faith
certainly will have the effect of causing viewers to understand the
government is taking sides.
15. We note that the only factor in the preliminary
injunction analysis that is at issue here is the likelihood of the ACLU’s
success on the merits.
16. Although the Counties point out that the courthouses
contained other displays besides the Ten Commandments, there is no
suggestion that the Commandments display was integrated to form a secular
display.
17. In Stone, the Commandments were accompanied by a
small disclaimer: “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.” 449 U.S., at 39—40,
n. 1 (internal quotation marks omitted).
18. The Counties’ other purposes were: “to erect a
display containing the Ten Commandments that is constitutional; … to
demonstrate that the Ten Commandments were part of the foundation of
American Law and Government; … [to include the Ten Commandments] as part of
the display for their significance in providing ‘the moral background of the
Declaration of Independence and the foundation of our legal tradition.’ ”
145 F. Supp. 2d, at 848 (some internal quotation marks omitted).
19. Following argument in this case, in which the
resolutions were discussed, the McCreary and Pulaski County Boards did
repeal the resolutions, acts of obviously minimal significance in the
evolution of the evidence.
20. The Counties argue that the objective observer would
not continue to believe that the resolution was in effect after the third
display went up because the resolution authorized only the second display.
But the resolution on its face is not limited to any particular display. On
the contrary, it encourages the creation of a display with the Ten
Commandments that also includes such documents as “the National anthem … the
National Motto … the preamble to the Kentucky Constitution[,] the
Declaration of Independence [and] the Mayflower Compact … without censorship
because of any Christian or religious references.” Def. Exh. 1, at 1. The
third display contains all of these documents, suggesting that it fell
within the resolutions as well. The record does not indicate whether the
resolutions were posted with the third display.
21. The Counties have now backed away from their broad
assertion that the Commandments provide “the” moral background of the
Declaration of Independence, and now merely claim that many of the
Commandments “regarding murder, property, theft, coveting, marriage, rest
from labor and honoring parents are compatible with the rights to life,
liberty and happiness.” Brief for Petitioners 10, n. 7.
22. The Counties grasp at McGowan v. Maryland, 366 U.S.
420 (1961), but it bears little resemblance to this case. As noted supra, at
12—13, McGowan held that religious purposes behind centuries-old
predecessors of Maryland’s Sunday laws were not dispositive of the purposes
of modern Sunday laws, where the legislature had removed much of the
religious reference in the laws and stated secular and pragmatic
justifications for them. 366 U.S., at 446—452. But a conclusion that
centuries-old purposes may no longer be operative says nothing about the
relevance of recent evidence of purpose, and this case is far more like
Santa Fe, with its evolution of a school football game prayer policy over
the course of a single lawsuit. Like that case, “[t]his [one] comes to us as
the latest step in developing litigation brought as a challenge to
institutional practices that unquestionably violated the Establishment
Clause.” 530 U.S., at 315. (describing the evolution of the school
district’s football prayer policy). Thus, as in Santa Fe, it makes sense to
examine the Counties’ latest action “in light of [their] history of”
unconstitutional practices. Id., at 309.
23. The dissent notes that another depiction of Moses and
the Commandments adorns this Court’s east pediment. Post, at 23. But as with
the courtroom frieze, Moses is found in the company of other figures, not
only great but secular.
24. The dissent also maintains that our precedents show
that a solo display of the Commandments is a mere acknowledgement of
religion “on par with the inclusion of a crčche or a menorah” in a
holiday display, or an official’s speech or prayer, post, at 22. Whether or
not our views would differ about the significance of those practices if we
were considering them as original matters, they manifest no objective of
subjecting individual lives to religious influence comparable to the
apparent and openly acknowledged purpose behind posting the Commandments.
Crčches placed with holiday symbols and prayers by legislators do not
insistently call for religious action on the part of citizens; the history
of posting the Commandments expressed a purpose to urge citizens to act in
prescribed ways as a personal response to divine authority.
25. The dissent cites material suggesting that
separationists like Jefferson and Madison were not absolutely consistent in
abstaining from official religious acknowledgment. Post, at 4. But, a record
of inconsistent historical practice is too weak a lever to upset decades of
precedent adhering to the neutrality principle. And it is worth noting that
Jefferson thought his actions were consistent with non-endorsement of
religion and Madison regretted any backsliding he may have done. Lee v.
Weisman, 505 U.S. 577, 622—25 (1992) (Souter, J., concurring). “Homer
nodded.” Id., at 624, n. 5 (corrected in erratum at 535 U.S., at II).
26. There might, indeed, even have been some reservations
about monotheism as the paradigm example. It is worth noting that the
canonical biography of George Washington, the dissent’s primary exemplar of
the monotheistic tradition, calls him a deist. J. Flexner, George
Washington: Anguish and Farewell (1793—1799) 490 (1972) (“Washington’s
religious belief was that of the enlightenment: deism”). It would have been
odd for the First Congress to propose an Amendment with Religion Clauses
that took no account of the President’s religion. As with other historical
matters pertinent here, however, there are conflicting conclusions. R.
Brookhiser, Founding Father: Rediscovering George Washington 146 (1996)
(“Washington’s God was no watchmaker”). History writ small does not give
clear and certain answers to questions about the limits of “religion” or
“establishment.”
Concurrence
O’Connor, J., concurring
SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
No. 03—1693
McCREARY COUNTY, KENTUCKY, et al., PETI- TIONERS v.
AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY et al. ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [June 27, 2005]
Justice O’Connor, concurring.
I join in the Court’s opinion. The First Amendment
expresses our Nation’s fundamental commitment to religious liberty by means
of two provisions–one protecting the free exercise of religion, the other
barring establishment of religion. They were written by the descendents of
people who had come to this land precisely so that they could practice their
religion freely. Together with the other First Amendment guarantees–of free
speech, a free press, and the rights to assemble and petition–the Religion
Clauses were designed to safeguard the freedom of conscience and belief that
those immigrants had sought. They embody an idea that was once considered
radical: Free people are entitled to free and diverse thoughts, which
government ought neither to constrain nor to direct.
Reasonable minds can disagree about how to apply the
Religion Clauses in a given case. But the goal of the Clauses is clear: to
carry out the Founders’ plan of preserving religious liberty to the fullest
extent possible in a pluralistic society. By enforcing the Clauses, we have
kept religion a matter for the individual conscience, not for the prosecutor
or bureaucrat. At a time when we see around the world the violent
consequences of the assumption of religious authority by government,
Americans may count themselves fortunate: Our regard for constitutional
boundaries has protected us from similar travails, while allowing private
religious exercise to flourish. The well-known statement that “[w]e are a
religious people,” Zorach v. Clauson, 343 U.S. 306, 313 (1952), has proved
true. Americans attend their places of worship more often than do citizens
of other developed nations, R. Fowler, A. Hertzke, & L. Olson, Religion and
Politics in America 28—29 (2d ed. 1999), and describe religion as playing an
especially important role in their lives, Pew Global Attitudes Project,
Among Wealthy Nations U.S. Stands Alone in its Embrace of Religion (Dec. 19,
2002). Those who would renegotiate the boundaries between church and state
must therefore answer a difficult question: Why would we trade a system that
has served us so well for one that has served others so poorly?
Our guiding principle has been James Madison’s–that
“[t]he Religion … of every man must be left to the conviction and conscience
of every man.” Memorial and Remonstrance Against Religious Assessments, 2
Writings of James Madison 183, 184 (G. Hunt ed. 1901) (hereinafter
Memorial). To that end, we have held that the guarantees of religious
freedom protect citizens from religious incursions by the States as well as
by the Federal Government. Everson v. Board of Ed. of Ewing, 330 U.S. 1, 16
(1947); Cantwell v. Connecticut, 310 U.S. 296 (1940). Government may not
coerce a person into worshiping against her will, nor prohibit her from
worshiping according to it. It may not prefer one religion over another or
promote religion over nonbelief. Everson, supra, at 15—16. It may not
entangle itself with religion. Walz v. Tax Comm’n of City of New York, 397
U.S. 664, 674 (1970). And government may not, by “endorsing religion or a
religious practice,” “mak[e] adherence to religion relevant to a person’s
standing in the political community.” Wallace v. Jaffree, 472 U.S. 38, 69
(1985) (O’Connor, J., concurring in judgment).
When we enforce these restrictions, we do so for the same
reason that guided the Framers–respect for religion’s special role in
society. Our Founders conceived of a Republic receptive to voluntary
religious expression, and provided for the possibility of judicial
intervention when government action threatens or impedes such expression.
Voluntary religious belief and expression may be as threatened when
government takes the mantle of religion upon itself as when government
directly interferes with private religious practices. When the government
associates one set of religious beliefs with the state and identifies
nonadherents as outsiders, it encroaches upon the individual’s decision
about whether and how to worship. In the marketplace of ideas, the
government has vast resources and special status. Government religious
expression therefore risks crowding out private observance and distorting
the natural interplay between competing beliefs. Allowing government to be a
potential mouthpiece for competing religious ideas risks the sort of
division that might easily spill over into suppression of rival beliefs.
Tying secular and religious authority together poses risks to both.
Given the history of this particular display of the Ten
Commandments, the Court correctly finds an Establishment Clause violation.
See ante, at 19—25. The purpose behind the counties’ display is relevant
because it conveys an unmistakable message of endorsement to the reasonable
observer. See Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J.,
concurring).
It is true that many Americans find the Commandments in
accord with their personal beliefs. But we do not count heads before
enforcing the First Amendment. See West Virginia Bd. of Ed. v. Barnette, 319
U.S. 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw
certain subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials and to establish them as
legal principles to be applied by the courts”). Nor can we accept the theory
that Americans who do not accept the Commandments’ validity are outside the
First Amendment’s protections. There is no list of approved and disapproved
beliefs appended to the First Amendment–and the Amendment’s broad terms
(“free exercise,” “establishment,” “religion”) do not admit of such a
cramped reading. It is true that the Framers lived at a time when our
national religious diversity was neither as robust nor as well recognized as
it is now. They may not have foreseen the variety of religions for which
this Nation would eventually provide a home. They surely could not have
predicted new religions, some of them born in this country. But they did
know that line-drawing between religions is an enterprise that, once begun,
has no logical stopping point. They worried that “the same authority which
can establish Christianity, in exclusion of all other Religions, may
establish with the same ease any particular sect of Christians, in exclusion
of all other Sects.” Memorial 186. The Religion Clauses, as a result,
protect adherents of all religions, as well as those who believe in no
religion at all.
***
We owe our First Amendment to a generation with a
profound commitment to religion and a profound commitment to religious
liberty–visionaries who held their faith “with enough confidence to believe
that what should be rendered to God does not need to be decided and
collected by Caesar.” Zorach, supra, at 324—325 (Jackson, J., dissenting).
In my opinion, the display at issue was an establishment of religion in
violation of our Constitution. For the reasons given above, I join in the
Court’s opinion.
Dissent
Scalia, J., dissenting
SUPREME COURT OF THE UNITED STATES
--------------------------------------------------------------------------------
No. 03—1693
McCREARY COUNTY, KENTUCKY, et al., PETI- TIONERS v.
AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY et al. ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [June 27, 2005]
Justice Scalia, with whom The Chief Justice and Justice
Thomas join, and with whom Justice Kennedy joins as to Parts II and III,
dissenting.
I would uphold McCreary County and Pulaski County,
Kentucky’s (hereinafter Counties) displays of the Ten Commandments. I shall
discuss first, why the Court’s oft repeated assertion that the government
cannot favor religious practice is false; second, why today’s opinion
extends the scope of that falsehood even beyond prior cases; and third, why
even on the basis of the Court’s false assumptions the judgment here is
wrong.
I
A
On September 11, 2001 I was attending in Rome, Italy an
international conference of judges and lawyers, principally from Europe and
the United States. That night and the next morning virtually all of the
participants watched, in their hotel rooms, the address to the Nation by the
President of the United States concerning the murderous attacks upon the
Twin Towers and the Pentagon, in which thousands of Americans had been
killed. The address ended, as Presidential addresses often do, with the
prayer “God bless America.” The next afternoon I was approached by one of
the judges from a European country, who, after extending his profound
condolences for my country’s loss, sadly observed “How I wish that the Head
of State of my country, at a similar time of national tragedy and distress,
could conclude his address ‘God bless ______.’ It is of course absolutely
forbidden.”
That is one model of the relationship between church and
state–a model spread across Europe by the armies of Napoleon, and reflected
in the Constitution of France, which begins “France is [a] . . . secular . .
. Republic.” France Const., Art. 1, in 7 Constitutions of the Countries of
the World, p. 1 (G. Flanz ed. 2000). Religion is to be strictly excluded
from the public forum. This is not, and never was, the model adopted by
America. George Washington added to the form of Presidential oath prescribed
by Art. II, §1, cl. 8, of the Constitution, the concluding words “so help me
God.” See Blomquist, The Presidential Oath, the American National Interest
and a Call for Presiprudence, 73 UMKC L. Rev. 1, 34 (2004). The Supreme
Court under John Marshall opened its sessions with the prayer, “God save the
United States and this Honorable Court.” 1 C. Warren, The Supreme Court in
United States History 469 (rev. ed. 1926). The First Congress instituted the
practice of beginning its legislative sessions with a prayer. Marsh v.
Chambers, 463 U.S. 783, 787 (1983). The same week that Congress submitted
the Establishment Clause as part of the Bill of Rights for ratification by
the States, it enacted legislation providing for paid chaplains in the House
and Senate. Id., at 788. The day after the First Amendment was proposed, the
same Congress that had proposed it requested the President to proclaim “ a
day of public thanksgiving and prayer, to be observed, by acknowledging,
with grateful hearts, the many and signal favours of Almighty God.” See H.
R. Jour., 1st Cong., 1st Sess. 123 (1826 ed.); see also Sen. Jour., 1st
Sess., 88 (1820 ed.). President Washington offered the first Thanksgiving
Proclamation shortly thereafter, devoting November 26, 1789 on behalf of the
American people “ ‘to the service of that great and glorious Being who is
the beneficent author of all the good that is, that was, or that will be,’ ”
Van Orden v. Perry, ante, at 7—8 (plurality opinion) (quoting President
Washington’s first Thanksgiving Proclamation), thus beginning a tradition of
offering gratitude to God that continues today. See Wallace v. Jaffree, 472
U.S. 38, 100—103 (1985) (Rehnquist, J., dissenting).1 The same Congress also
reenacted the Northwest Territory Ordinance of 1787, 1 Stat. 50, Article III
of which provided: “Religion, morality, and knowledge, being necessary to
good government and the happiness of mankind, schools and the means of
education shall forever be encouraged.” Id., at 52, n. (a). And of course
the First Amendment itself accords religion (and no other manner of belief)
special constitutional protection.
These actions of our First President and Congress and the
Marshall Court were not idiosyncratic; they reflected the beliefs of the
period. Those who wrote the Constitution believed that morality was
essential to the well-being of society and that encouragement of religion
was the best way to foster morality. 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.” School Dist. of Abington
Township v. Schempp, 374 U.S. 203, 213 (1963). See Underkuffler-Freund, The
Separation of the Religious and the Secular: A Foundational Challenge to
First-Amendment Theory, 36 Wm. & Mary L. Rev. 837, 896—918 (1995). President
Washington opened his Presidency with a prayer, see Inaugural Addresses of
the Presidents of the United States 1, 2 (1989), and reminded his fellow
citizens at the conclusion of it that “reason and experience both forbid us
to expect that National morality can prevail in exclusion of religious
principle.” Farewell Address (1796), reprinted in 35 Writings of George
Washington 229 (J. Fitzpatrick ed. 1940). President John Adams wrote to the
Massachusetts Militia, “we have no government armed with power capable of
contending with human passions unbridled by morality and religion. … Our
Constitution was made only for a moral and religious people. It is wholly
inadequate to the government of any other.” Letter (Oct. 11, 1798),
reprinted in 9 Works of John Adams 229 (C. Adams ed. 1971). Thomas Jefferson
concluded his second inaugural address by inviting his audience to pray:
“I shall need, too, the favor of that Being in whose
hands we are, who led our fathers, as Israel of old, from their native land
and planted them in a country flowing with all the necessaries and comforts
of life; who has covered our infancy with His providence and our riper years
with His wisdom and power and to whose goodness I ask you to join in
supplications with me that He will so enlighten the minds of your servants,
guide their councils, and prosper their measures that whatsoever they do
shall result in your good, and shall secure to you the peace, friendship,
and approbation of all nations.” Inaugural Addresses of the Presidents of
the United States, at 18, 22—23.
James Madison, in his first inaugural address, likewise
placed his confidence “in the guardianship and guidance of that Almighty
Being whose power regulates the destiny of nations, whose blessings have
been so conspicuously dispensed to this rising Republic, and to whom we are
bound to address our devout gratitude for the past, as well as our fervent
supplications and best hopes for the future.” Id., at 25, 28.
Nor have the views of our people on this matter
significantly changed. Presidents continue to conclude the Presidential oath
with the words “so help me God.” Our legislatures, state and national,
continue to open their sessions with prayer led by official chaplains. The
sessions of this Court continue to open with the prayer “God save the United
States and this Honorable Court.” Invocation of the Almighty by our public
figures, at all levels of government, remains commonplace. Our coinage bears
the motto “IN GOD WE TRUST.” And our Pledge of Allegiance contains the
acknowledgment that we are a Nation “under God.” As one of our Supreme Court
opinions rightly observed, “We are a religious people whose institutions
presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952),
repeated with approval in Lynch v. Donnelly, 465 U.S. 668, 675 (1984);
Marsh, 463 U.S., at 792; Abington Township, supra, at 213.
With all of this reality (and much more) staring it in
the face, how can the Court possibly assert that “ ‘the First Amendment
mandates governmental neutrality between … religion and nonreligion,’ ”
ante, at 11, and that “[m]anifesting a purpose to favor . . . adherence to
religion generally,” ante, at 12, is unconstitutional? Who says so? Surely
not the words of the Constitution. Surely not the history and traditions
that reflect our society’s constant understanding of those words. Surely not
even the current sense of our society, recently reflected in an Act of
Congress adopted unanimously by the Senate and with only 5 nays in the House
of Representatives, see 148 Cong. Rec. S6226 (2002); id., at H7186,
criticizing a Court of Appeals opinion that had held “under God” in the
Pledge of Allegiance unconstitutional. See Act of Nov. 13, 2002, §§1(9),
2(a), 3(a), 116 Stat. 2057, 2058, 2060—2061 (reaffirming the Pledge of
Allegiance and the National Motto (“In God We Trust”) and stating that the
Pledge of Allegiance is “clearly consistent with the text and intent of the
Constitution”). Nothing stands behind the Court’s assertion that
governmental affirmation of the society’s belief in God is unconstitutional
except the Court’s own say-so, citing as support only the unsubstantiated
say-so of earlier Courts going back no farther than the mid-20th century.
See ante, at 11, citing Corporation of Presiding Bishop of Church of Jesus
Christ of Latter&nbhyph;day Saints v. Amos, 483 U.S. 327, 335 (1987), in
turn citing Lemon v. Kurtzman, 403 U.S. 602, 612 (1971), in turn citing
Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 243
(1968), in turn quoting Abington Township, supra, at 222, in turn citing
Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15 (1947).2 And it is,
moreover, a thoroughly discredited say-so. It is discredited, to begin with,
because a majority of the Justices on the current Court (including at least
one Member of today’s majority) have, in separate opinions, repudiated the
brain-spun “Lemon test” that embodies the supposed principle of neutrality
between religion and irreligion. See Lamb’s Chapel v. Center Moriches Union
Free School Dist., 508 U.S. 384, 398—399 (1993) (Scalia, J., concurring in
judgment) (collecting criticism of Lemon); Van Orden, ante, at 1, 6 (Thomas,
J., concurring); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet,
512 U.S. 687, 720 (1994) (O’Connor, J., concurring in part and concurring in
judgment); County of Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U.S. 573, 655—656, 672—673 (1989) (Kennedy, J.,
concurring in judgment in part and dissenting in part); Wallace, 472 U.S.,
at 112 (Rehnquist, J., dissenting); see also Committee for Public Ed. and
Religious Liberty v. Regan, 444 U.S. 646, 671 (1980) (Stevens, J.,
dissenting) (disparaging “the sisyphean task of trying to patch together the
‘blurred, indistinct, and variable barrier’ described in Lemon”). And it is
discredited because the Court has not had the courage (or the foolhardiness)
to apply the neutrality principle consistently.
What distinguishes the rule of law from the dictatorship
of a shifting Supreme Court majority is the absolutely indispensable
requirement that judicial opinions be grounded in consistently applied
principle. That is what prevents judges from ruling now this way, now
that–thumbs up or thumbs down–as their personal preferences dictate. Today’s
opinion forthrightly (or actually, somewhat less than forthrightly) admits
that it does not rest upon consistently applied principle. In a revealing
footnote, ante, at 11, n. 10, the Court acknowledges that the “Establishment
Clause doctrine” it purports to be applying “lacks the comfort of
categorical absolutes.” What the Court means by this lovely euphemism is
that sometimes the Court chooses to decide cases on the principle that
government cannot favor religion, and sometimes it does not. The footnote
goes on to say that “[i]n special instances we have found good reason” to
dispense with the principle, but “[n]o such reasons present themselves
here.” Ibid. It does not identify all of those “special instances,” much
less identify the “good reason” for their existence.
I have cataloged elsewhere the variety of circumstances
in which this Court–even after its embrace of Lemon’s stated prohibition of
such behavior–has approved government action “undertaken with the specific
intention of improving the position of religion,” Edwards v. Aguillard, 482
U.S. 578, 616 (1987) (Scalia, J., dissenting). See id., 616—618. Suffice it
to say here that when the government relieves churches from the obligation
to pay property taxes, when it allows students to absent themselves from
public school to take religious classes, and when it exempts religious
organizations from generally applicable prohibitions of religious
discrimination, it surely means to bestow a benefit on religious
practice–but we have approved it. See Amos, supra, at 338 (exemption from
federal prohibition of religious discrimination by employers); Walz v. Tax
Comm’n of City of New York, 397 U.S. 664, 673 (1970) (property tax exemption
for church property); Zorach, 343 U.S., at 308, 315 (law permitting students
to leave public school for the purpose of receiving religious education).
Indeed, we have even approved (post-Lemon) government-led prayer to God. In
Marsh v. Chambers, supra, the Court upheld the Nebraska State Legislature’s
practice of paying a chaplain to lead it in prayer at the opening of
legislative sessions. The Court explained that “[t]o invoke Divine guidance
on a public body entrusted with making the laws is not . . . an
‘establishment’ of religion or a step toward establishment; it is simply a
tolerable acknowledgment of beliefs widely held among the people of this
country.” 463 U.S., at 792. (Why, one wonders, is not respect for the Ten
Commandments a tolerable acknowledgment of beliefs widely held among the
people of this country?)
The only “good reason” for ignoring the neutrality
principle set forth in any of these cases was the antiquity of the practice
at issue. See Marsh, supra, at 786—792, 794; Walz, supra, at 676—680. That
would be a good reason for finding the neutrality principle a mistaken
interpretation of the Constitution, but it is hardly a good reason for
letting an unconstitutional practice continue. We did not hide behind that
reason in Reynolds v. Sims, 377 U.S. 533 (1964), which found
unconstitutional bicameral state legislatures of a sort that had existed
since the beginning of the Republic. And almost monthly, it seems, the Court
has not shrunk from invalidating aspects of criminal procedure and penology
of similar vintage. See, e.g., Deck v. Missouri, 544 U.S. ___, ___ (2005)
(slip op., at 10—11) (invalidating practice of shackling defendants absent
“special circumstances”); id., at ___ (slip op., at 7—11) (Thomas, J.,
dissenting); Roper v. Simmons, 543 U.S. ___, ___ (2005) (slip op., at 14)
(invalidating practice of executing under-18-year-old offenders); id., at
___ (slip op., at 2, n. 1) (Scalia, J., dissenting). What, then, could be
the genuine “good reason” for occasionally ignoring the neutrality
principle? I suggest it is the instinct for self-preservation, and the
recognition that the Court, which “has no influence over either the sword or
the purse,” The Federalist No. 78, p. 412 (J. Pole ed. 2005), cannot go too
far down the road of an enforced neutrality that contradicts both historical
fact and current practice without losing all that sustains it: the
willingness of the people to accept its interpretation of the Constitution
as definitive, in preference to the contrary interpretation of the
democratically elected branches.
Besides appealing to the demonstrably false principle
that the government cannot favor religion over irreligion, today’s opinion
suggests that the posting of the Ten Commandments violates the principle
that the government cannot favor one religion over another. See ante, at 19;
see also Van Orden, ante, at 11—13 (Stevens, J., dissenting). That is indeed
a valid principle where public aid or assistance to religion is concerned,
see Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002), or where the free
exercise of religion is at issue, Church of Lukumi Babalu Aye, Inc. v.
Hialeah, 508 U.S. 520, 532—533 (1993); id., at 557—558 (Scalia, J.,
concurring in part and concurring in judgment), but it necessarily applies
in a more limited sense to public acknowledgment of the Creator. If religion
in the public forum had to be entirely nondenominational, there could be no
religion in the public forum at all. One cannot say the word “God,” or “the
Almighty,” one cannot offer public supplication or thanksgiving, without
contradicting the beliefs of some people that there are many gods, or that
God or the gods pay no attention to human affairs. With respect to public
acknowledgment of religious belief, it is entirely clear from our Nation’s
historical practices that the Establishment Clause permits this disregard of
polytheists and believers in unconcerned deities, just as it permits the
disregard of devout atheists. The Thanksgiving Proclamation issued by George
Washington at the instance of the First Congress was scrupulously
nondenominational–but it was monotheistic. 3 In Marsh v. Chambers, supra, we
said that the fact the particular prayers offered in the Nebraska
Legislature were “in the Judeo-Christian tradition,” id., at 793, posed no
additional problem, because “there is no indication that the prayer
opportunity has been exploited to proselytize or advance any one, or to
disparage any other, faith or belief,” id., at 794—795.
Historical practices thus demonstrate that there is a
distance between the acknowledgment of a single Creator and the
establishment of a religion. The former is, as Marsh v. Chambers put it, “a
tolerable acknowledgment of beliefs widely held among the people of this
country.” Id., at 792. The three most popular religions in the United
States, Christianity, Judaism, and Islam–which combined account for 97.7% of
all believers–are monotheistic. See U.S. Dept. of Commerce, Bureau of
Census, Statistical Abstract of the United States: 2004—2005, p. 55 (124th
ed. 2004) (Table No. 67). All of them, moreover (Islam included), believe
that the Ten Commandments were given by God to Moses, and are divine
prescriptions for a virtuous life. See 13 Encyclopedia of Religion 9074 (2d
ed. 2005); The Qur’an 104 (M. Haleem trans. 2004). Publicly honoring the Ten
Commandments is thus indistinguishable, insofar as discriminating against
other religions is concerned, from publicly honoring God. Both practices are
recognized across such a broad and diverse range of the population–from
Christians to Muslims–that they cannot be reasonably understood as a
government endorsement of a particular religious viewpoint.4
B
A few remarks are necessary in response to the criticism
of this dissent by the Court, as well as Justice Stevens’ criticism in the
related case of Van Orden v. Perry, ante, p. 1. Justice Stevens’ writing is
largely devoted to an attack upon a straw man. “[R]eliance on early
religious proclamations and statements made by the Founders is …
problematic,” he says, “because those views were not espoused at the
Constitutional Convention in 1787 nor enshrined in the Constitution’s text.”
Van Orden, ante, at 18—19 (dissenting opinion) (footnote omitted). But I
have not relied upon (as he and the Court in this case do) mere
“proclamations and statements” of the Founders. I have relied primarily upon
official acts and official proclamations of the United States or of the
component branches of its Government, including the First Congress’s
beginning of the tradition of legislative prayer to God, its appointment of
congressional chaplains, its legislative proposal of a Thanksgiving
Proclamation, and its reenactment of the Northwest Territory Ordinance; our
first President’s issuance of a Thanksgiving Proclamation; and invocation of
God at the opening of sessions of the Supreme Court. The only mere
“proclamations and statements” of the Founders I have relied upon were
statements of Founders who occupied federal office, and spoke in at least a
quasi-official capacity–Washington’s prayer at the opening of his Presidency
and his Farewell Address, President John Adams’ letter to the Massachusetts
Militia, and Jefferson’s and Madison’s inaugural addresses. The Court and
Justice Stevens, by contrast, appeal to no official or even quasi-official
action in support of their view of the Establishment Clause–only James
Madison’s Memorial and Remonstrance Against Religious Assessments, written
before the federal Constitution had even been proposed, two letters written
by Madison long after he was President, and the quasi-official inaction of
Thomas Jefferson in refusing to issue a Thanksgiving Proclamation. See ante,
at 30—31; Van Orden, ante, at 19 (Stevens, J., dissenting). The Madison
Memorial and Remonstrance, dealing as it does with enforced contribution to
religion rather than public acknowledgment of God, is irrelevant; one of the
letters is utterly ambiguous as to the point at issue here, and should not
be read to contradict Madison’s statements in his first inaugural address,
quoted earlier; even the other letter does not disapprove public
acknowledgment of God, unless one posits (what Madison’s own actions as
President would contradict) that reference to God contradicts “the equality
of all religious sects.” See Letter from James Madison to Edward Livingston
(July 10, 1822), in 5 The Founders’ Constitution 105—106 (P. Kurland & R.
Lerner eds. 1987). And as to Jefferson: the notoriously self-contradicting
Jefferson did not choose to have his nonauthorship of a Thanksgiving
Proclamation inscribed on his tombstone. What he did have inscribed was his
authorship of the Virginia Statute for Religious Freedom, a governmental act
which begins “Whereas Almighty God hath created the mind free . . . .” Va.
Code Ann. §57—1 (Lexis 2003).
It is no answer for Justice Stevens to say that the
understanding that these official and quasi-official actions reflect was not
“enshrined in the Constitution’s text.” Van Orden, ante, at 18 (dissenting
opinion). The Establishment Clause, upon which Justice Stevens would rely,
was enshrined in the Constitution’s text, and these official actions show
what it meant. There were doubtless some who thought it should have a
broader meaning, but those views were plainly rejected. Justice Stevens says
that reliance on these actions is “bound to paint a misleading picture,” Van
Orden, ante, at 19, but it is hard to see why. What is more probative of the
meaning of the Establishment Clause than the actions of the very Congress
that proposed it, and of the first President charged with observing it?
Justice Stevens also appeals to the undoubted fact that
some in the founding generation thought that the Religion Clauses of the
First Amendment should have a narrower meaning, protecting only the
Christian religion or perhaps only Protestantism. See Van Orden, ante, at
20—22. I am at a loss to see how this helps his case, except by providing a
cloud of obfuscating smoke. (Since most thought the Clause permitted
government invocation of monotheism, and some others thought it permitted
government invocation of Christianity, he proposes that it be construed not
to permit any government invocation of religion at all.) At any rate, those
narrower views of the Establishment Clause were as clearly rejected as the
more expansive ones. Washington’s First Thanksgiving Proclamation is merely
an example. All of the actions of Washington and the First Congress upon
which I have relied, virtually all Thanksgiving Proclamations throughout our
history,5 and all the other examples of our Government’s favoring religion
that I have cited, have invoked God, but not Jesus Christ.6 Rather than
relying upon Justice Stevens’ assurance that “[t]he original understanding
of the type of ‘religion’ that qualified for constitutional protection under
the First amendment certainly did not include . . . followers of Judaism and
Islam,” Van Orden, ante, at 22; see also ante, at 32—33, I would prefer to
take the word of George Washington, who, in his famous Letter to the Hebrew
Congregation of Newport, Rhode Island, wrote that,
“All possess alike liberty of conscience and immunities
of citizenship. It is now no more that toleration is spoken of, as if it was
by the indulgence of one class of people, that another enjoyed the exercise
of their inherent natural rights.” 6 The Papers of George Washington,
Presidential Series 285 (D. Twohig et al. eds. 1996).
The letter concluded, by the way, with an invocation of
the one God:
“May the father of all mercies scatter light and not
darkness in our paths, and make us all in our several vocations useful here,
and in his own due time and way everlastingly happy.” Ibid.
Justice Stevens says that if one is serious about
following the original understanding of the Establishment Clause, he must
repudiate its incorporation into the Fourteenth Amendment, and hold that it
does not apply against the States. See Van Orden, ante, at 24—26 (dissenting
opinion). This is more smoke. Justice Stevens did not feel that way last
Term, when he joined an opinion insisting upon the original meaning of the
Confrontation Clause, but nonetheless applying it against the State of
Washington. See Crawford v. Washington, 541 U.S. 36 (2004). The notion that
incorporation empties the incorporated provisions of their original meaning
has no support in either reason or precedent.
Justice Stevens argues that original meaning should not
be the touchstone anyway, but that we should rather “expoun[d] the meaning
of constitutional provisions with one eye towards our Nation’s history and
the other fixed on its democratic aspirations.” Van Orden, ante, at 27—28
(dissenting opinion). This is not the place to debate the merits of the
“living Constitution,” though I must observe that Justice Stevens’ quotation
from McCulloch v. Maryland, 4 Wheat. 316, 407 (1819), refutes rather than
supports that approach.7 Even assuming, however, that the meaning of the
Constitution ought to change according to “democratic aspirations,” why are
those aspirations to be found in Justices’ notions of what the Establishment
Clause ought to mean, rather than in the democratically adopted dispositions
of our current society? As I have observed above, numerous provisions of our
laws and numerous continuing practices of our people demonstrate that the
government’s invocation of God (and hence the government’s invocation of the
Ten Commandments) is unobjectionable–including a statute enacted by Congress
almost unanimously less than three years ago, stating that “under God” in
the Pledge of Allegiance is constitutional, see 116 Stat., at 2058. To
ignore all this is not to give effect to “democratic aspirations” but to
frustrate them.
Finally, I must respond to Justice Stevens’ assertion
that I would “marginaliz[e] the belief systems of more than 7 million
Americans” who adhere to religions that are not monotheistic. Van Orden,
ante, at 13—14, n. 18 (dissenting opinion). Surely that is a gross
exaggeration. The beliefs of those citizens are entirely protected by the
Free Exercise Clause, and by those aspects of the Establishment Clause that
do not relate to government acknowledgment of the Creator. Invocation of God
despite their beliefs is permitted not because nonmonotheistic religions
cease to be religions recognized by the religion clauses of the First
Amendment, but because governmental invocation of God is not an
establishment. Justice Stevens fails to recognize that in the context of
public acknowledgments of God there are legitimate competing interests: On
the one hand, the interest of that minority in not feeling “excluded”; but
on the other, the interest of the overwhelming majority of religious
believers in being able to give God thanks and supplication as a people, and
with respect to our national endeavors. Our national tradition has resolved
that conflict in favor of the majority.8 It is not for this Court to change
a disposition that accounts, many Americans think, for the phenomenon
remarked upon in a quotation attributed to various authors, including
Bismarck, but which I prefer to associate with Charles de Gaulle: “God
watches over little children, drunkards, and the United States of America.”
II
As bad as the Lemon test is, it is worse for the fact
that, since its inception, its seemingly simple mandates have been
manipulated to fit whatever result the Court aimed to achieve. Today’s
opinion is no different. In two respects it modifies Lemon to ratchet up the
Court’s hostility to religion. First, the Court justifies inquiry into
legislative purpose, not as an end itself, but as a means to ascertain the
appearance of the government action to an “ ‘objective observer.’ ” Ante, at
13. Because in the Court’s view the true danger to be guarded against is
that the objective observer would feel like an “outside[r]” or “not [a] full
membe[r] of the political community,” its inquiry focuses not on the actual
purpose of government action, but the “purpose apparent from government
action.” Ante, at 12. Under this approach, even if a government could show
that its actual purpose was not to advance religion, it would presumably
violate the Constitution as long as the Court’s objective observer would
think otherwise. See Capitol Square Review and Advisory Bd. v. Pinette, 515
U.S. 753, 776—777 (1995) (O’Connor, J., concurring in part and concurring in
judgment) (stating that “when the reasonable observer would view a
government practice as endorsing religion, . . . it is our duty to hold the
practice invalid,” even if the law at issue was neutral and the benefit
conferred on the religious entity was incidental).
I have remarked before that it is an odd jurisprudence
that bases the unconstitutionality of a government practice that does not
actually advance religion on the hopes of the government that it would do
so. See Edwards, 482 U.S., at 639. But that oddity pales in comparison to
the one invited by today’s analysis: the legitimacy of a government action
with a wholly secular effect would turn on the misperception of an imaginary
observer that the government officials behind the action had the intent to
advance religion.
Second, the Court replaces Lemon’s requirement that the
government have “a secular . . . purpose,” 403 U.S., at 612 (emphasis
added), with the heightened requirement that the secular purpose
“predominate” over any purpose to advance religion. Ante, at 15—17. The
Court treats this extension as a natural outgrowth of the longstanding
requirement that the government’s secular purpose not be a sham, but simple
logic shows the two to be unrelated. If the government’s proffered secular
purpose is not genuine, then the government has no secular purpose at all.
The new demand that secular purpose predominate contradicts Lemon’s more
limited requirement, and finds no support in our cases. In all but one of
the five cases in which this Court has invalidated a government practice on
the basis of its purpose to benefit religion, it has first declared that the
statute was motivated entirely by the desire to advance religion. See Santa
Fe Independent School Dist. v. Doe, 530 U.S. 290, 308—309 (2000) (dismissing
the school district’s proffered secular purposes as shams); Wallace, 472
U.S., at 56 (finding “no secular purpose”) (emphasis added); Stone v.
Graham, 449 U.S. 39, 41 (1980) (per curiam) (finding that “Kentucky’s
statute requiring the posting of the Ten Commandments in public school rooms
has no secular legislative purpose”) (emphasis added); Epperson v. Arkansas,
393 U.S. 97, 107—109 (1968). In Edwards, supra, the Court did say that the
state action was invalid because its “primary” or “preeminent” purpose was
to advance a particular religious belief, 482 U.S., at 590, 593, 594, but
that statement was unnecessary to the result, since the Court rejected the
State’s only proffered secular purpose as a sham. See id., at 589.
I have urged that Lemon’s purpose prong be abandoned,
because (as I have discussed in Part I) even an exclusive purpose to foster
or assist religious practice is not necessarily invalidating. But today’s
extension makes things even worse. By shifting the focus of Lemon’s purpose
prong from the search for a genuine, secular motivation to the hunt for a
predominantly religious purpose, the Court converts what has in the past
been a fairly limited inquiry into a rigorous review of the full record.9
Those responsible for the adoption of the Religion Clauses would surely
regard it as a bitter irony that the religious values they designed those
Clauses to protect have now become so distasteful to this Court that if they
constitute anything more than a subordinate motive for government action
they will invalidate it.
III
Even accepting the Court’s Lemon-based premises, the
displays at issue here were constitutional.
A
To any person who happened to walk down the hallway of
the McCreary or Pulaski County Courthouse during the roughly nine months
when the Foundations Displays were exhibited, the displays must have seemed
unremarkable–if indeed they were noticed at all. The walls of both
courthouses were already lined with historical documents and other assorted
portraits; each Foundations Display was exhibited in the same format as
these other displays and nothing in the record suggests that either County
took steps to give it greater prominence.
Entitled “The Foundations of American Law and Government
Display,” each display consisted of nine equally sized documents: the
original version of the Magna Carta, the Declaration of Independence, the
Bill of Rights, the Star Spangled Banner, the Mayflower Compact of 1620, a
picture of Lady Justice, the National Motto of the United States (“In God We
Trust”), the Preamble to the Kentucky Constitution, and the Ten
Commandments. The displays did not emphasize any of the nine documents in
any way: The frame holding the Ten Commandments was of the same size and had
the same appearance as that which held each of the other documents. See 354
F.3d 438, 443 (CA6 2003).
Posted with the documents was a plaque, identifying the
display, and explaining that it “contains documents that played a
significant role in the foundation of our system of law and government.”
Ibid. The explanation related to the Ten Commandments was third in the list
of nine and did not serve to distinguish it from the other documents. It
stated:
“The Ten Commandments have profoundly influenced the
formation of Western legal thought and the formation of our country. That
influence is clearly seen in the Declaration of Independence, which declared
that, ‘We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty, and the pursuit of Happiness.’
The Ten Commandments provide the moral background of the Declaration of
Independence and the foundation of our legal tradition.” Ibid.
B
On its face, the Foundations Displays manifested the
purely secular purpose that the Counties asserted before the District Court:
“to display documents that played a significant role in the foundation of
our system of law and government.” Affidavit of Judge Jimmie Green in
Support of Defendants’ Opposition to Plaintiffs’ Motion for Contempt or, in
the Alternative, for Supplemental Preliminary Injunction in Civ. A. No.
99—507 (ED Ky.), p. 2. That the Displays included the Ten Commandments did
not transform their apparent secular purpose into one of impermissible
advocacy for Judeo-Christian beliefs. Even an isolated display of the
Decalogue conveys, at worst, “an equivocal message, perhaps of respect for
Judaism, for religion in general, or for law.” Allegheny County, 492 U.S.,
at 652 (Stevens, J., concurring in part and dissenting in part). But when
the Ten Commandments appear alongside other documents of secular
significance in a display devoted to the foundations of American law and
government, the context communicates that the Ten Commandments are included,
not to teach their binding nature as a religious text, but to show their
unique contribution to the development of the legal system. See id., at
652—653. This is doubly true when the display is introduced by a document
that informs passersby that it “contains documents that played a significant
role in the foundation of our system of law and government.”
The same result follows if the Ten Commandments display
is viewed in light of the government practices that this Court has
countenanced in the past. The acknowledgment of the contribution that
religion in general, and the Ten Commandments in particular, have made to
our Nation’s legal and governmental heritage is surely no more of a step
towards establishment of religion than was the practice of legislative
prayer we approved in Marsh v. Chambers, 463 U.S. 783 (1983), and it seems
to be on par with the inclusion of a crčche or a menorah in a
“Holiday” display that incorporates other secular symbols, see Lynch, supra,
at 679—680; Allegheny County, supra, at 621. The parallels between this case
and Marsh and Lynch are sufficiently compelling that they ought to decide
this case, even under the Court’s misguided Establishment Clause
jurisprudence.10
Acknowledgment of the contribution that religion has made
to our Nation’s legal and governmental heritage partakes of a centuries-old
tradition. Members of this Court have themselves often detailed the degree
to which religious belief pervaded the National Government during the
founding era. See Lynch, supra, at 674—678; Marsh, supra, at 786—788; Lee v.
Weisman, 505 U.S. 577, 633—636 (1992) (Scalia, J., dissenting); Wallace, 472
U.S. at 100—106 (Rehnquist, J., dissenting); Engel v. Vitale, 370 U.S. 421,
446—450, and n. 3 (1962) (Stewart, J., dissenting). Display of the Ten
Commandments is well within the mainstream of this practice of
acknowledgment. Federal, State, and local governments across the Nation have
engaged in such display.11 The Supreme Court Building itself includes
depictions of Moses with the Ten Commandments in the Courtroom and on the
east pediment of the building, and symbols of 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.” Van Orden, ante, at 9 (plurality
opinion). Similar depictions of the Decalogue appear on public buildings and
monuments throughout our Nation’s Capital. Ibid. The frequency of these
displays testifies to the popular understanding that the Ten Commandments
are a foundation of the rule of law, and a symbol of the role that religion
played, and continues to play, in our system of government.
Perhaps in recognition of the centrality of the Ten
Commandments as a widely recognized symbol of religion in public life, the
Court is at pains to dispel the impression that its decision will require
governments across the country to sandblast the Ten Commandments from the
public square. See ante, at 26. The constitutional problem, the Court says,
is with the Counties’ purpose in erecting the Foundations Displays, not the
displays themselves. The Court adds in a footnote: “One consequence of
taking account of the purpose underlying past actions is that the same
government action may be constitutional if taken in the first instance and
unconstitutional if it has a sectarian heritage.” Ante, at 18, n. 14.
This inconsistency may be explicable in theory, but I
suspect that the “objective observer” with whom the Court is so concerned
will recognize its absurdity in practice. By virtue of details familiar only
to the parties to litigation and their lawyers, McCreary and Pulaski
Counties, Kentucky, and Rutherford County, Tennessee, have been ordered to
remove the same display that appears in courthouses from Mercer County,
Kentucky to Elkhart County, Indiana. Compare American Civil Liberties Union
of Tenn. v. Rutherford County, 209 F. Supp. 2d 799, 808—809 (MD Tenn. 2002)
(holding Foundations Display to be unconstitutional based on prior actions
of county commission) with Books v. Elkhart County, 401 F.3d 857, 869 (CA7
2005) (sustaining Foundations Display as “secular . . . in its purpose and
effect”); American Civil Liberties Union of Ky. v. Mercer County, 219 F.
Supp. 2d 777, 787—789 (ED Ky. 2002) (rejecting Establishment Clause
challenge to an identical Foundations Display and distinguishing McCreary
County on the ground that the County’s purpose had not been “tainted with
any prior history”). Displays erected in silence (and under the direction of
good legal advice) are permissible, while those hung after discussion and
debate are deemed unconstitutional. Reduction of the Establishment Clause to
such minutiae trivializes the Clause’s protection against religious
establishment; indeed, it may inflame religious passions by making the
passing comments of every government official the subject of endless
litigation.
C
In any event, the Court’s conclusion that the Counties
exhibited the Foundations Displays with the purpose of promoting religion is
doubtful. In the Court’s view, the impermissible motive was apparent from
the initial displays of the Ten Commandments all by themselves: When that
occurs, the Court says, “a religious object is unmistakable.” Ante, at 21.
Surely that cannot be. If, as discussed above, the Commandments have a
proper place in our civic history, even placing them by themselves can be
civically motivated–especially when they are placed, not in a school (as
they were in the Stone case upon which the Court places such reliance), but
in a courthouse. Cf. Van Orden, ante, at 4 (Breyer, J., concurring in
judgment) (“The circumstances surrounding the display’s placement on the
capital grounds, and its physical setting suggest that the State itself
intended the … nonreligious aspects of the tablets’ message to
predominate”). And the fact that at the posting of the exhibit a clergyman
was present is unremarkable (clergymen taking particular pride in the role
of the Ten Commandments in our civic history); and even more unremarkable
the fact that the clergyman “testified to the certainty of the existence of
God,” ante, at 21.
The Court has in the past prohibited government actions
that “proselytize or advance any one, or . . . disparage any other, faith or
belief,” see Marsh, 463 U.S., at 794—795, or that apply some level of
coercion (though I and others have disagreed about the form that coercion
must take), see, e.g., Lee v. Weisman, 505 U.S., at 592 (prayer at
high-school graduation invalid because of “subtle coercive pressure”); id.,
at 642 (Scalia, J., dissenting). The passive display of the Ten
Commandments, even standing alone, does not begin to do either. What Justice
Kennedy said of the crčche in Allegheny County is equally true of the
Counties’ original Ten Commandments displays:
“No one was compelled to observe or participate in any
religious ceremony or activity. [T]he count[ies] [did not] contribut[e]
significant amounts of tax money to serve the cause of one religious faith.
[The Ten Commandments] are purely passive symbols of [the religious
foundation for many of our laws and governmental institutions]. Passersby
who disagree with the message conveyed by th[e] displays are free to ignore
them, or even to turn their backs, just as they are free to do when they
disagree with any other form of government speech.” 492 U.S., at 664
(opinion concurring in judgment in part and dissenting in part).
Nor is it the case that a solo display of the Ten
Commandments advances any one faith. They are assuredly a religious symbol,
but they are not so closely associated with a single religious belief that
their display can reasonably be understood as preferring one religious sect
over another. The Ten Commandments are recognized by Judaism, Christianity,
and Islam alike as divinely given. See 13 Encyclopedia of Religion 9074 (2d
ed. 2005).12
The Court also points to the Counties’ second displays,
which featured a number of statements in historical documents reflecting a
religious influence, and the resolutions that accompanied their erection, as
evidence of an impermissible religious purpose.13 In the Court’s view,
“[t]he [second] display’s unstinting focus . . . on religious passages,
show[s] that the Counties were posting the Commandments precisely because of
their sectarian content.” Ante, at 22. No, all it necessarily shows is that
the exhibit was meant to focus upon the historic role of religious belief in
our national life–which is entirely permissible. And the same can be said of
the resolution. To forbid any government focus upon this aspect of our
history is to display what Justice Goldberg called “untutored devotion to
the concept of neutrality,” Abington Township, 374 U.S., at 306 (concurring
opinion), that would commit the Court (and the Nation) to a revisionist
agenda of secularization.
Turning at last to the displays actually at issue in this
case, the Court faults the Counties for not repealing the resolution
expressing what the Court believes to be an impermissible intent. Under
these circumstances, the Court says, “no reasonable observer could swallow
the claim that the Counties had cast off the objective so unmistakable in
the earlier displays.” Ante, at 24. Even were I to accept all that the Court
has said before, I would not agree with that assessment. To begin with, of
course, it is unlikely that a reasonable observer would even have been aware
of the resolutions, so there would be nothing to “cast off.” The Court
implies that the Counties may have been able to remedy the “taint” from the
old resolutions by enacting a new one. See ante, at 23—24. But that action
would have been wholly unnecessary in light of the explanation that the
Counties included with the displays themselves: A plaque next to the
documents informed all who passed by that each display “contains documents
that played a significant role in the foundation of our system of law and
government.” Additionally, there was no reason for the Counties to repeal or
repudiate the resolutions adopted with the hanging of the second displays,
since they related only to the second displays. After complying with the
District Court’s order to remove the second displays “immediately,” and
erecting new displays that in content and by express assertion reflected a
different purpose from that identified in the resolutions, the Counties had
no reason to believe that their previous resolutions would be deemed to be
the basis for their actions.14 After the Counties discovered that the
sentiments expressed in the resolutions could be attributed to their most
recent displays (in oral argument before this Court), they repudiated them
immediately.
In sum: The first displays did not necessarily evidence
an intent to further religious practice; nor did the second displays, or the
resolutions authorizing them; and there is in any event no basis for
attributing whatever intent motivated the first and second displays to the
third. Given the presumption of regularity that always accompanies our
review of official action, see supra, at 18—19 n. 9, the Court has
identified no evidence of a purpose to advance religion in a way that is
inconsistent with our cases. The Court may well be correct in identifying
the third displays as the fruit of a desire to display the Ten Commandments,
ante, at 24, but neither our cases nor our history support its assertion
that such a desire renders the fruit poisonous.
***
For the foregoing reasons, I would reverse the judgment
of the Court of Appeals.
--------------------------------------------------------------------------------
Notes 1. See, e.g., President’s Thanksgiving Day 2004
Proclamation (Nov. 23, 2004), available at
http://www.whitehouse.gov/news/releases/2004/11/ 20041123-4. html (all
internet materials as visited June 24, 2005 and available in Clerk of
Court’s case file).
2. The fountainhead of this jurisprudence, Everson v.
Board of Ed. of Ewing, based its dictum that “[n]either a state nor the
Federal Government . . . can pass laws which . . . aid all religions,” 330
U.S., at 15, on a review of historical evidence that focused on the debate
leading up to the passage of the Virginia Bill for Religious Liberty, see
id., at 11—13. A prominent commentator of the time remarked (after a
thorough review of the evidence himself) that it appeared the Court had been
“sold . . . a bill of goods.” Corwin, The Supreme Court as National School
Board, 14 Law & Contemp. Prob. 3, 16 (1949).
3. The Court thinks it “surpris[ing]” and “truly
remarkable” to believe that “the deity the Framers had in mind” (presumably
in all the instances of invocation of the deity I have cited) “was the God
of monotheism.” Ante, at 32. This reaction would be more comprehensible if
the Court could suggest what other God (in the singular, and with a capital
G) there is, other than “the God of monotheism." This is not necessarily the
Christian God (though if it were, one would expect Christ regularly to be
invoked, which He is not); but it is inescapably the God of monotheism.
4. This is not to say that a display of the Ten
Commandments could never constitute an impermissible endorsement of a
particular religious view. The Establishment Clause would prohibit, for
example, governmental endorsement of a particular version of the Decalogue
as authoritative. Here the display of the Ten Commandments alongside eight
secular documents, and the plaque’s explanation for their inclusion, make
clear that they were not posted to take sides in a theological dispute.
5. The two exceptions are the March 23, 1798 proclamation
of John Adams, which asks God “freely to remit all our offenses” “through
the Redeemer of the World,” http://www.pilgrimhall.org/ThanxProc1789.htm,
and the November 17, 1972 proclamation of Richard Nixon, which stated, “From
Moses at the Red Sea to Jesus preparing to feed the multitudes, the
Scriptures summon us to words and deeds of gratitude, even before divine
blessings are fully perceived,” Presidential Proclamation No. 4170, 37 Fed.
Reg. 24647 (1972).
6. Justice Stevens finds that Presidential inaugural and
farewell speeches (which are the only speeches upon which I have relied) do
not violate the Establishment Clause only because everyone knows that they
express the personal religious views of the speaker, and not government
policy. See Van Orden, ante, at 17—18 (dissenting opinion). This is a
peculiar stance for one who has voted that a student-led invocation at a
high school football game and a rabbi-led invocation at a high school
graduation did constitute the sort of governmental endorsement of religion
that the Establishment Clause forbids. See Santa Fe Independent School Dist.
v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577 (1992).
7. See Scalia, Originalism: The Lesser Evil, 57
Cincinnati L. Rev. 852—853 (1989).
8. Nothing so clearly demonstrates the utter
inconsistency of our Establishment Clause jurisprudence as Justice
O’Connor’s stirring concurrence in the present case. “[W]e do not,” she
says, “count heads before enforcing the First Amendment.” Ante, at 4. But
Justice O’Connor joined the opinion of the Court in Marsh v. Chambers, 463
U.S. 783 (1983) which held legislative prayer to be “a tolerable
acknowledgment of beliefs widely held among the people of this country.”
Id., at 792.
9. The Court’s reflexive skepticism of the government’s
asserted secular purposes is flatly inconsistent with the deferential
approach taken by our previous Establishment Clause cases. We have repeated
many times that, where a court undertakes the sensitive task of reviewing a
government’s asserted purpose, it must take the government at its word
absent compelling evidence to the contrary. See, e.g., Edwards v. Aguillard,
482 U.S. 578, 586 (stating that “the Court is . . . deferential to a State’s
articulation of a secular purpose,” unless that purpose is insincere or a
sham); Mueller v. Allen, 463 U.S. 388, 394—395 (1983) (ascribing the Court’s
disinclination to invalidate government practices under Lemon’s purpose
prong to its “reluctance to attribute unconstitutional motives to the
States, particularly when a plausible secular purpose for the State’s
program may be discerned from the face of the statute”); see also Wallace v.
Jaffree, 472 U.S. 38, 74 (O’Connor, J., concurring in judgment) (“the
inquiry into the purpose of the legislature . . . should be deferential and
limited”).
10. The Court’s only response is that the inclusion of
the Ten Commandments in a display about the foundations of American law
reflects “a purpose to call on citizens to act in prescribed ways as a
personal response to divine authority,” in a way that legislative prayer and
the inclusion of a crčche in a Holiday display do not. See ante, at
30, n. 24. That might be true if the Commandments were displayed by
themselves in a church, or even in someone’s home. It seems to me patently
untrue–given the Decalogue’s “undeniable historical meaning” as a symbol of
the religious foundations of law, see Van Orden, ante, at 11 (plurality
opinion)–when they are posted in a courthouse display of historical
documents. The observer would no more think himself “called upon to act” in
conformance with the Commandments than he would think himself called upon to
think and act like William Bradford because of the courthouse posting of the
Mayflower Compact–especially when he is told that the exhibit consists of
documents that contributed to American law and government.
11. The significant number of cases involving Ten
Commandments displays in the last two years suggests the breadth of their
appearance. See, e.g., Books v. Elkhart County, 401 F.3d 857, 858—859 (CA7
2005) (Ten Commandments included in a display identical to the Foundations
display); Mercier v. Fraternal Order of Eagles, 395 F.3d 693, 696 (CA7 2005)
(Ten Commandments monument in city park since 1965); Modrovich v. Allegheny
County, 385 F.3d 397, 399 (CA3 2004) (Ten Commandments plaque, donated in
1918, on wall of Allegheny County Courthouse); Freethought Soc. of Greater
Philadelphia v. Chester County, 334 F.3d 247, 249 (CA3 2003) (Ten
Commandment plaque, donated in 1920, on wall of Chester County Courthouse);
King v. Richmond County, 331 F.3d 1271, 1273—1274 (CA11 2003) (Ten
Commandments depicted in county seal since 1872).
12. Because there are interpretational differences
between faiths and within faiths concerning the meaning and perhaps even the
text of the Commandments, Justice Stevens maintains that any display of the
text of the Ten Commandments is impermissible because it “invariably places
the [government] at the center of a serious sectarian dispute.” Van Orden,
ante, at 13 (dissenting opinion). I think not. The sectarian dispute
regarding text, if serious, is not widely known. I doubt that most religious
adherents are even aware that there are competing versions with doctrinal
consequences (I certainly was not). In any event, the context of the display
here could not conceivably cause the viewer to believe that the government
was taking sides in a doctrinal controversy.
13. Posted less than a month after respondents filed
suit, the second displays included an excerpt from the Declaration of
Independence, the Preamble to the Kentucky Constitution, a page from the
Congressional Record declaring 1983 to be the Year of the Bible and the
proclamation of President Reagan stating the same, a proclamation of
President Lincoln designating April 30, 1863 as a National Day of Prayer and
Humiliation, an excerpt from Lincoln’s “Reply to Loyal Colored People of
Baltimore upon Presentation of a Bible” stating that “[t]he Bible is the
best gift God has ever given to man,” and the Mayflower Compact. 96 F. Supp.
2d 679, 684 (ED Ky., 2000). The Counties erected the displays in accordance
with a resolution passed by their legislative bodies, authorizing the
County-Judge Executives “to read or post the Ten Commandments as the
precedent legal code upon which the civil and criminal codes of the
Commonwealth of Kentucky are founded,” and to display alongside the Ten
Commandments copies of the documents listed above “without censorship
because of any Christian or religious references in these writings,
documents, and historical records.” Def. Exh. 1 in Memorandum in Support of
Defendants’ Motion to Dismiss in Civ. A. No. 99—507, p. 1 (ED Ky.)
(hereinafter Def. Exh. 1).
14. Contrary to the Court’s suggestion, see ante, at 24,
n. 20, it is clear that the resolutions were closely tied to the second
displays, but not to the third. Each of the documents included in the second
displays was authorized by the resolutions, and those displays, consistent
with the resolutions’ direction to “post the Ten Commandments as the
precedent legal code upon which the civil and criminal codes of the
Commonwealth of Kentucky are founded,” Def. Exh. 1, consisted of a large
copy of the Ten Commandments alongside much smaller framed copies of other
historical, religious documents. The third displays, in contrast, included
documents not mentioned in the resolutions (the Magna Carta and a picture of
Lady Justice) and did not include documents authorized by the resolutions
(correspondence and proclamations of Abraham Lincoln and the Resolution of
Congress declaring 1983 to be the Year of the Bible). The resolutions also
provided that they were to be posted beside the displays that they
authorized. Def. Exh. 1, at 9. Yet respondents have never suggested the
resolutions were posted next to the third displays, and the record before
the Court indicates that they were not. The photos included in the Appendix
show that the third displays included 10 frames–the nine historical
documents and the prefatory statement explaining the relevance of each of
the documents. See App. to Pet. for Cert. 177a (McCreary County), 178a
(Pulaski County).
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