OPINION OF THE COURT MCCREARY COUNTY V. AMERICAN CIVIL LIBERTIESUNION OF KY. 545 U. S. ____ (2005) 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 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.[ Footnote 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.”[ Footnote 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.[ Footnote 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,[ Footnote 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.”[ Footnote 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,[ Footnote
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.[ Footnote 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.”[ Footnote 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 ,[ Footnote 9 ] and
“the secular purpose requirement alone may rarely be
determinative … , it nevertheless serves an important
function.”[ Footnote 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:[ Footnote 11 ] Stone, 449 U. S., at
41; Abington, 374 U. S., at 223–224.[ Footnote 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.[ Footnote
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.”[ Footnote 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.[ Footnote
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 .[ Footnote 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.[ Footnote 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.”[ Footnote
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,[ Footnote 19 ] the extraordinary resolutions for the second
display passed just months earlier were not repealed or otherwise
repudiated.[ Footnote 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.[ Footnote
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.[ Footnote
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.[ Footnote
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).[ Footnote
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).[ Footnote
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.[ Footnote 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. Footnote
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. Footnote
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). Footnote
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) Footnote
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. Footnote
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. Footnote
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). Footnote
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. Footnote
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. Footnote
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. Footnote
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. Footnote
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”). Footnote
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. Footnote
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. Footnote
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. Footnote
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. Footnote
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. Footnote
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). Footnote
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). Footnote
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. Footnote
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. Footnote
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. Footnote
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. Footnote
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. Footnote
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. Footnote
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). Footnote
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.” O'CONNOR, J., CONCURRING MCCREARY COUNTY V. AMERICAN CIVIL LIBERTIESUNION OF KY. 545 U. S. ____ (2005) 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. SCALIA, J., DISSENTING MCCREARY COUNTY V. AMERICAN CIVIL LIBERTIESUNION OF KY. 545 U. S. ____ (2005) 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).[ Footnote 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).[ Footnote 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. [ Footnote 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.[ Footnote 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,[ Footnote 5 ] and all the other examples of our Government’s favoring
religion that I have cited, have invoked God, but not Jesus
Christ.[ Footnote 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.[ Footnote
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.[ Footnote 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.[ Footnote 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.[ Footnote 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.[ Footnote 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).[ Footnote 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.[ Footnote 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.[ Footnote 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. Footnote 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). Footnote 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). Footnote 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. Footnote 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. Footnote 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). Footnote 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). Footnote 7 See Scalia,
Originalism: The Lesser Evil, 57 Cincinnati L. Rev. 852–853
(1989). Footnote 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. Footnote 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”). Footnote 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. Footnote 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). Footnote 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. Footnote 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). Footnote 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).