In the
summer of 1999, officials in McCreary and
The trial
court ruled against the counties. The Sixth Circuit Court of Appeals affirmed,
holding that the Ten Commandments essentially was a religious, not secular,
document, and that the evolution of the exhibit indicated that the primary
purpose behind the counties’ actions was religious. The U.S. Supreme Court
granted review.
Justice Souter
delivered the opinion of the Court.
Twenty-five years ago in a case prompted by posting the Ten
Commandments in
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. Though
we have found government action motivated by an illegitimate purpose only four
times since Lemon, and “the secular purpose requirement alone may rarely be
determinative..., it nevertheless serves an important function.” Wallace v. Jaffree
(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.
Lemon said that government action must have “a secular …
purpose,” 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….
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. 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. Hence, we look to the record of evidence
showing the progression leading up to the third display of the Commandments.
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, and for good reason … 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. 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. What is more, at the ceremony for posting the
framed Commandments in
… 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.” Their refusal to defend the second display is understandable, but the
reasonable observer could not forget it.
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.” 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. The
conclusions of the two courts preceding us in this case are well warranted….
… No reasonable observer could swallow the claim that the
Counties had cast off the objective so unmistakable in the earlier displays….
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….
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.
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, but to guard against the civic divisiveness…..
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.
Justice
O’Connor, concurring.
Given the history of this particular display of the Ten
Commandments, the Court correctly finds an Establishment Clause violation. The
purpose behind the counties’ display is relevant because it conveys an
unmistakable message of endorsement to the reasonable observer.
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. 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.” 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.” 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.
Justice
Scalia, with whom the Chief Justice, Justice Kennedy [in part], and Justice
Thomas join, dissenting.
… [T]he 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.” Surely that cannot be.
If … 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….
The Court has in the past prohibited government actions that
“proselytize or advance any one, or ... disparage any other, faith or belief,”
or that apply some level of coercion (though I and others have disagreed about
the form that coercion must take). The passive display of the Ten Commandments,
even standing alone, does not begin to do either. What Justice Kennedy said of
the crèche 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.” (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.
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. 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.” 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” 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.” 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. 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 …
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, the Court has identified no evidence of a purpose to advance religion in a way that is inconsistent with our cases …