McCreary County v. American Civil Liberties Union of Kentucky
545 U.S. 844 (2005)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
When evaluating a government's display of a religious text under the Establishment Clause, courts must determine if the government's stated secular purpose is genuine or a sham by considering the context and history of the display. A predominantly religious purpose, evidenced by the evolution of the display in response to litigation, is unconstitutional.
Facts:
- In the summer of 1999, McCreary County and Pulaski County, Kentucky, installed large, gold-framed displays of the King James version of the Ten Commandments in their respective courthouses.
- In Pulaski County, the County Judge-Executive presided over a dedication ceremony with his pastor, calling the Commandments 'good rules to live by' and a 'creed of ethics'.
- After the ACLU filed suit, each county's legislative body adopted resolutions authorizing a second, expanded display. These resolutions cited the Ten Commandments as Kentucky's 'precedent legal code' and expressed support for Judge Roy Moore's defense of a similar display.
- The second displays featured the Ten Commandments alongside eight other documents, each selected for its religious references, such as the national motto 'In God We Trust' and a proclamation for the 'Year of the Bible'.
- After a preliminary injunction was issued against the second displays, the counties hired new lawyers and erected a third display without a new resolution.
- This third display, titled 'The Foundations of American Law and Government Display,' consisted of nine framed documents of equal size, including the Ten Commandments, the Magna Carta, the Declaration of Independence, and a picture of Lady Justice.
- An explanatory plaque for the third display claimed the Ten Commandments 'provide the moral background of the Declaration of Independence and the foundation of our legal tradition.'
Procedural Posture:
- The American Civil Liberties Union of Kentucky (ACLU) sued McCreary and Pulaski Counties in the U.S. District Court for the Eastern District of Kentucky, seeking a preliminary injunction against the initial Ten Commandments displays.
- After the counties erected their second, expanded displays, the District Court granted the ACLU's request for a preliminary injunction, finding both the first and second versions lacked a secular purpose.
- The counties initially appealed to the Sixth Circuit Court of Appeals but then voluntarily dismissed their appeal.
- After the counties installed their third display, the ACLU moved to supplement the preliminary injunction.
- The District Court granted the motion and supplemented the injunction, finding the third display's purpose was also predominantly religious when viewed in light of the case's history.
- The counties (petitioners) appealed to the U.S. Court of Appeals for the Sixth Circuit.
- A divided panel of the Sixth Circuit affirmed the District Court's ruling.
- The U.S. Supreme Court granted certiorari to review the Sixth Circuit's decision.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a courthouse display of the Ten Commandments violate the Establishment Clause of the First Amendment when the history of the display and the county's actions demonstrate a predominantly religious purpose?
Opinions:
Majority - Justice Souter
Yes. A government's stated secular purpose for a religious display must be genuine and not a sham, and this display's evolution reveals a predominantly religious objective that violates the Establishment Clause. Under the purpose prong of the Lemon test, the government's purpose must be evaluated through the eyes of an 'objective observer' who is aware of the context and history of the action. The initial solo posting of the Ten Commandments was clearly religious. The second display, which surrounded the Commandments with other documents selected solely for their religious content and was authorized by resolutions referencing Jesus Christ and Judge Roy Moore, only reinforced this religious purpose. The third display, despite its new title and inclusion of secular documents, cannot be viewed in a vacuum. The counties' failure to repeal the prior resolutions and the odd selection of documents in the 'Foundations' display suggest the educational purpose was a pretext developed in response to litigation. A reasonable observer, aware of this history, would conclude that the counties' primary purpose remained the advancement of religion.
Dissenting - Justice Scalia
No. The courthouse displays of the Ten Commandments are constitutional because the Establishment Clause does not mandate government neutrality between religion and nonreligion. The Court's assertion to the contrary ignores a long history of official acknowledgments of God by all three branches of government, from Presidential proclamations to the Supreme Court's own opening cry. The majority errs by replacing Lemon's requirement of 'a' secular purpose with a new, heightened standard that the secular purpose must 'predominate' over any religious one. The final display's stated purpose—to educate citizens on the foundations of American law—is a plausible secular purpose. The history of prior displays should not be used as an inescapable 'taint' to invalidate an otherwise constitutional display, and doing so reduces the Establishment Clause to an absurd analysis of litigation strategy rather than constitutional principle.
Concurring - Justice O'Connor
Yes. The display violates the Establishment Clause because the history of the counties' actions conveys an unmistakable message of religious endorsement to a reasonable observer. The purpose of the Religion Clauses is to preserve religious liberty by preventing government from taking a side on religious matters, which makes nonadherents feel like 'outsiders' in the political community. While many Americans agree with the Ten Commandments, the First Amendment's protections are not determined by majority rule; they protect adherents of all religions and those of no religion. The purpose behind the display is relevant because it is what communicates the unconstitutional message of endorsement. Given the context of this litigation, the counties' predominant purpose was clearly to endorse religion, not to educate.
Analysis:
This decision solidifies the principle that courts must examine the entire history and context of a government's actions, not just its latest justification, when assessing purpose under the Establishment Clause. It establishes that a government cannot easily 'cure' an unconstitutional religious display by adding secular elements after litigation has begun, as the sequence of events can reveal a sham secular purpose. The case introduces the concept that a 'sectarian heritage' can render an action unconstitutional, even if the action in its final form might have been permissible if created that way initially. This creates a significant hurdle for government bodies attempting to modify religious displays in the face of legal challenges.
