McCreary County v. American Civil Liberties Union of Kentucky

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545 U.S. 844 (2005), argued 2 Mar. 2005, decided 27 June 2005 by vote of 5 to 4; Souter for the Court, O’Connor concurring, Scalia in dissent, joined by Rehnquist, Thomas, and Kennedy in part. Two Kentucky counties installed large framed copies of the Ten Commandments in their courthouses, accompanied by framed copies of other American historical documents. The American Civil Liberties Union (ACLU) challenged the displays under the Establishment Clause of the First Amendment. Originally, the displays included only framed copies of the Ten Commandments, which McCreary County hung in response to a legislative order, and which Pulaski Country hung in a ceremony that included statements of a religious nature, including some spoken by a pastor.

After the ACLU filed suit, the legislatures of both counties, in order to reflect the view that the Ten Commandments are the foundation for the laws of Kentucky, ordered new displays that included eight government documents with religious references. They also issued statements effectively endorsing the right to publicly acknowledge God. After the district court entered preliminary injunctions against the displays, the counties changed the displays to include additional government documents with religious references in an attempt to show that the Ten Commandments are a foundation of American law and government. The district court extended the injunctions to these displays as well.

Writing for the Supreme Court majority, Justice David H. Souter held that the displays violated the Establishment Clause. He evaluated them under the test from Lemon v. Kurtzman (1971), part of which asks whether governmental action has a secular legislative purpose. Souter refused to jettison purpose analysis or see it as requiring the Court to analyze the actual intent of the legislature. Asking instead whether an objective observer would perceive the displays as manifesting a predominantly religious purpose, he observed that the displays were part of the Judeo-Christian religious tradition and emphasized a religious message. Souter concluded that an objective observer would not be swayed by the later efforts to include other government documents. The counties did not disclaim the prior religious message, he noted, and the newest displays were too selective, leaving out many documents important to the foundation of American law but including those that validated the religious message of the Ten Commandments. Justice Sandra Day O’Connor concurred, stressing that the displays conveyed a message of religious endorsement. Justice Breyer joined the majority to invalidate the displays here, but voted with a different majority, comprised of the dissenters in this case, to uphold a Ten Commandments display in a case decided the same day, Van Orden v. Perry. He did not regard that display as having a similar history of religious endorsement.

Justice Antonin Scalia dissented, joined by Chief Justice William H. Rehnquist, Justice Clarence Thomas, and, in part, Justice Anthony M. Kennedy. Scalia rejected the notion that the Establishment Clause prohibits any public acknowledgment of God. He also contended that the displays were constitutional even under Lemon's purpose prong, because: (1) no observers would find them noteworthy, and (2) the counties’ earlier religious motivations were irrelevant.


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