McCreary County v. ACLU - Opinion Announcement

Argument of Chief Justice

Mr. Justice: The opinion of the Court in two cases will be announced by Justice Souter.

Argument of Justice Souter

Mr. Souter: The first case in which I have the announcement this morning is McCreary County v. ACLU, No. 03-1693.

This case comes to us on a writ of certiorari to the Court of Appeals for the Sixth Circuit.

It issue two identical series of Ten Commandments displays erected by county officials in two Kentucky Courthouses.

The first display in each county consisted of a large gold frame copy of the Ten Commandments that was hung in 1999 in a busy hallway of each courthouse.

The respondents, the American Civil Liberties Union brought a lawsuit against the county petitioners alleging the displays violated the clause of the Constitution prohibiting the establishment of religion.

The county is responded by passing identical resolutions stating that the commandments were the precedent legal code for Kentucky Law, and approvingly citing various sectarian references including the Kentucky legislature’s description of Jesus Christ as the Prince of Ethics.

As called for by the resolutions, the county’s extended the displays to surround the Ten Commandments with smaller size patriotic and legal documents that highlighted religious references.

The District Court issued a preliminary injunction requiring the displaced to be taken down.

It found that poses risks and the second displays lack any secular purpose and that the county’s object was instead to advance religion in violation of the Constitution.

At this point, the county has got a new lawyer and installed another display, the third within a year.

This one was entitled “The Foundations of American Law and Government” and it comprise an extended text of the commandments surrounded by equal size copies of such documents as the Bill of Rights, a picture of Lady Justice and the lyrics of the Star Spangled Banner.

The Commandments now had an explanatory note next to them stating that they profoundly influence the formation of our county and thus us seen in the decoration of independence.

The District Court found that this display also violated the Establishment Clause concluding that the county has claimed broader educational goals crumbled upon examination of the litigations history.

It divided Sixth Circuit panel affirmed the preliminary injunction on much the same ground.

We granted certiorari and in an opinion of the Court filed with the Clerk today, we now affirm.

The primary questions this case presents are first the extent to which governmental purpose is relevant in enforcing the Establishment Clause, and secondly where they past official action can be relevant in evaluating current actions.

As the opinion explains, an evaluation of purpose has been a long standing all be it rarely just positive feature of our Establishment Clause cases.

Purpose is critical because it directly relates to a central Establishment Clause principle neutrality.

The idea that the government may not discriminate among religions who are between religion and your religion.

Well, no one principle can be this positive in many situations in which religion and government intersect.

Neutrality has long been attached down of our cases and when the government is understood to take sides purposely in religious matters, there can be no neutrality but only the social attention that the framer sought to avoid in drafting the Establishment Clause.

We thus, reaffirm today that government action predominantly intended to advance religion is not permitted under the Establishment Clause.

Applying this principle to the case at hand we reached the following conclusions: Twenty-five years ago in the case of Stone v. Graham, we recognized and held something pretty obvious that the Ten Commandments are inherently religious statements, that does not to be sure mean that every governmental display of the commandments is unconstitutional, context matters and where the display serves on educational or other predominantly secular goal, the display can be constitutional.

In fact, Moses and the Commandments are displayed in this very Courtroom up on the south and east but Moses stands there in the company of other lawgivers both great and secular demonstrating that the display is about lawgivers’ not about religion and was not the product of some religious objective.

In the Kentucky Courthouses however, the first commandment’s display consisted of the text of the commandments in isolation showing that any integration into a secular project the commandment’s text including such provision as “Thou shall have no other gods before Me” leads to the inescapable conclusion that the county has intended to put out a religious message.

The second display only amplified this religious message and indeed the county has make not attempt to defend it describing the second display as dead and buried.

That display with its explicitly cite herein resolution and surrounding religious references could leave no doubt that the county is intended to make a religious statement.

In evaluating the third display, we have to consider the two displays that immediately preceded it.

We think that the District Court was justified in concluding that the county has had not shown any secular educational purpose.

The counties did not repeal the religious resolution that accompanied the second display, iIn fact the third quoted the religious prohibitions of the commandments and even more detail than the preceding once had done.

The county’s educational claims were also undermined by the scatter shot nature of the supposedly foundational materials accompanying the commandments, for example, the picture of Lady Liberty and the overstated description of the commandments influence on American law.

In upholding the District Court’s conclusions that the county has still had a predominantly religious purpose in erecting the third display, we do not hold that past unconstitutional purposes have attained future government action.

Instead, we acknowledge only that stated purposes must be creditable before they will be credited and that the District Court which was familiar with the facts in this case was warranted in concluding that the counties had not adapted a new purpose.

Finally, a word needs to be said about the dissent in this case.

The dissent calls decades of precedent adhering to the neutrality principle to return what it believes to be the Framers’ understanding of the Establishment Clause, but the dissent’s account of history is not compelling and certainly not sufficient to over rule 60 years of precedent recognizing government neutrality as an objective of the Establishment Clause.

While the dissent cites evidence showing that some Framers like our first president included religious references and official speech.

Here is evidence that equally prominent figures like Jefferson and Madison believed that references to be for those references to be forbidden under the Establishment Clause.

And if the history of official religious acknowledgment is too murky to justify departing from a neutrality precedence then the new rule of the dissent derives some history should quicken our resolve to stick with the precedent.

But the dissent will not allow the government to espouse and acknowledge the core religious beliefs of some religious faiths all those that are monotheistic but not others.

While some members of this Court have argued that the Establishment Clause that bids only discrimination among religious sects but not between religion and irreligion.

This is the first time the view has been advanced that the government may favor some religions but not others.

We think that this view flies in the face of the neutrality that Framers thought necessary to prevent the religious strife with which they were all too familiar.

As for us, we are centuries away from the St. Bartholomew’s Day massacre and from the treatment of heretics in early Massachusetts but the divisiveness of religion in current public life is indisputable.

This is no time to turn our back on the principle of neutrality.

It has served religious liberty and freedom of conscience so well.

Justice O’Connor has filed a concurring opinion; Justice Scalia will announce the dissenting opinion.

Argument of Justice Scalia

Mr. Scalia: My dissent is divided into three parts; the last two joined by the Chief Justice and Justice Kennedy and Thomas discussed respectively how today’s opinion retch it up this Court’s hostility to religion by adding two new elements to the famous lemon test that it has been using in Establishment Clause cases for about the last 50 or 60 years, and how even applying that heightened tests the display of the Ten Commandments in this case passes master because there is a distinction between preaching religion and acknowledging the role of religion in our national history.

I want to summarize this morning only Part 1 of my opinion which is joined by the Chief Justice and Justice Thomas.

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 the President of the United States gave an address to the nation concerning the murderous attacks upon the twin towers and the pentagon in which almost 3,000 Americans were 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 European country who after extending his profound condolences on 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 the name of the county.”

It is of course absolutely forbidden, he said.

That is one model of the relationship between church and state.

A model spread across Europe by the armies in Napoleon and reflected in the Constitution of France which begins France is a secular republic.

Religion is strictly excluded from the public forum.

That is not and never was the model adapted by America.

George Washington added to the form of presidential oath prescribed by Article II of the Constitution that concluding words “So help me God.”

The Supreme Court under John Marshall opened its sessions with the prayer “God save the United States and this honorable court."

The First Congress instituted the practice of beginning its legislative sessions with a prayer.

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 of Senate.

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 favors of almighty God."

President Washington authored 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.”

I could add to these examples many other official and quasi-official indications of the compatibility with the Establishment Clause of expressions of belief in God.

Today’s majority opinion brings forward no official or quasi-official statement expressing what the majority says to be the contrary view, only letters and statements of individual Framers.

Some of which are contradicted by the actions that those Framers themselves took when they were in official office.

There is moreover no indication that America's views on the official acknowledgment of God today are any different from what they were in 1789.

Presidents continue to conclude the presidential oath with the words, “So help me God” and to wish you thanksgiving proclamations calling for thanks to God.

Our legislatures state and national continue to open their sessions with prayers 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 the government remains common place.

Our coinage there is the model “In God we trust” and less than three years ago an active Congress adapted unanimously by the Senate and with only five nays in the House of Representatives criticized a Federal Court opinion that had held the words under “God” in the pledge of allegiance to be unconstitutional.

With all of this reality and much more scarring it in the face how can the court possibly assert as it does in today’s opinion that “the First Amendment mandates governmental neutrality between religion and non-religion”, manifesting a purpose to favor adherence to religion generally 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 American society nothing stands behind the Court's assertion that governmental affirmation of America’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 further than the mid 20th century.

It is moreover a thoroughly discredited say so.

It is discredit 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 so-called lemon test that embodies the supposed principle of neutrality between religion and irreligion, and it is discredited because the court has not had the courage or the full of heartiness to apply the neutrality principle consistently.

Today’s opinion admits that it does not rest upon consistently applied principle.

In a revealing footnote 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 euphemism is that sometimes the court chooses to decide cases on the principle that government cannot favor religion and sometimes it does not.

For example, the court has approved the exemption of houses of worship from property taxes.

It has approved a program allowing students to absent themselves from public school in order to take religion classes and it has exempted religious organizations from generally applicable prohibitions of religious discrimination.

Indeed, it has even approved post Lemon government led prayer to God permitting a state legislature's practice of paying a chaplain to lead it in prayer at the opening of legislative sessions.

What could possibly be the court’s reason for occasionally ignoring the neutrality principle?

I suggest that it is the instinct for self-preservation and the recognition that the court cannot go too far down the road of a judge enforce neutrality that contradicts both historical fact and current practice without losing 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 demonstratively false principle that the government cannot favor religion over irreligion, today’s opinion suggest that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another.

That is indeed a valid principle where public aid or assistance to religion is concerned or where the free exercise of religion is at issue but it necessarily applies and has always applied in a more limited sense to public acknowledgment of the Creator.

If religion in the public forum had to be entirely non-denominational, 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 the public acknowledgment of religious belief, it is entirely clear from our nation’s historical practices and its practices today that there is a distance between the acknowledgment of a single Creator and the establishment of a religion.

The former is as the court itself said in the case appproving legislator prayers “a tolerable acknowledgment of beliefs widely held among the people of this country.

The three most popular religions in the United States, Christianity, Judaism, and Islam which combined a count for 97.9% of all believers are monotheistic.

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.

Publicly honoring the Ten Commandments is thus indistinguishable in so far as discrimination against other religious is concerned from publicly honoring God.

Both practices are recognized across such a broad and diverse range of the population that they cannot reasonably be understood as a government endorsement of a particular religious viewpoint.

The Court today fails to recognize that in the context of public acknowledgements of one God or of the Ten Commandments, there are legitimate competing interests.

On the one hand, the interest of a minority, the religious minority and not feeling excluded, but on the other hand, 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.

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."