Summary of McCreary County v. American Civil Liberties Union
Citation: 545 U.S. 844 (2005)
Relevant Facts: McCreary County was one of two counties in Kentucky that placed large copies of the Ten Commandments in their county courthouses. The American Civil Liberties Union (ACLU) brought suit claiming that the displays violated the First Amendment’s Establishment Clause. Both counties then adopted resolutions enlarging the displays to include other historical documents, including the Magna Carta and Declaration of Independence, with each of eight smaller documents connected only in that they each contained some religious reference. After the District Court enjoined the modified displays, the counties displayed a third iteration of the Ten Commandments display. In the third and final version, courthouse displays include nine framed documents of equal size, including the Ten Commandments as one document. Each document was accompanied by a statement purporting to tell of its historical and legal significance. The ACLU moved to have the third version of the display included in the District Court’s injunction, and that Court agreed both that the purpose of the Ten Commandments was religious and that the history of the displays was relevant to demonstrating the religious (as opposed to secular) purpose of the displays in undertaking an Establishment Clause Analysis. The District Court included the third display in its injunction, and the Sixth Circuit affirmed, concluding that the Ten Commandments are religious unless integrated within a secular message- finding no such message in this case.
Issue: Does a display of the Ten Commandments at a county courthouse amongst other historical documents, when those documents were added later to address constitutional concerns, violate the Establishment Clause?
Holding: Yes, the display at issue here violates the Establishment Clause. The county failed to demonstrate an adequate secular purpose as required under Supreme Court precedent, and the Court found the history of the display relevant in determining the counties’ purpose.
Reasoning: Justice Souter delivered the opinion of the Court. First, the majority explained while the secular purpose prong of the traditional Lemon test in Establishment Clause cases is rarely dispositive, an illegitimate purpose alone is an adequate basis for finding a constitutional violation. When the government acts to advance religion, it violates its neutrality obligation necessary to ensure tolerance as a part of basic guarantees of liberty. The Court declined to accept the County’s position that evaluating the purpose of government action is an important part of Establishment Clause cases, explaining that evaluating the purpose of an enactment is a classic judicial role as they interpret statutes. Evaluating action for whether it has a secular purpose requires more than the mere recitation of a secular purpose; rather, the Court should consider all relevant evidence in context, including the history of the display at issue in this case (rather than the final version as urged by Petitioners). Next, the Court explained that in evaluating displays containing religious items, as in this case, the inquiry can properly focus on the history of the display. Here, the original display emphasized the Ten Commandments, the second display still featured the Commandments as the focal point, and the final display sought to include them equally with other documents. As the Court explained, however, display the text of the Commandments is a different inquiry than mere symbolic representations, as the text itself advances numerous religious positions. In evaluating the final display specifically, the Court found it significant that the third display was not created through a new resolution. Rather, the display modified the display called for in the resolution (the second display). The Court also pointed out that the education purpose as described in briefs and arguments seem to arise only in response to litigation. Finally, the Court explained that past behavior does not forever taint a display in evaluating legitimate secular purposes, so long as the proffered purposes are legitimate. Similarly, the Constitution does not forbid all displays of religious materials, but in evaluating displays by government bodies, contexts (and purpose) are key.
Concurrence: Justice O’Connor concurred, writing separately to emphasize the historical importance of the Establishment Clause and the necessity of protecting neutrality that does not draw lines of distinctions between various faiths or selection of no faith at all. Here, the history of the display was relevant to its purpose, and the County sought to establish religious preference through an impermissible endorsement.
Dissent: Justice Scalia dissented, joined by Chief Justice Rehnquist and Justice Thomas. Justice Kennedy joined as to parts II and III only. In Part I, Justice Scalia explained the history of public religion, explaining that the Founders did not seek to exclude religion from public life, nor did they seek to bar public endorsement of faith generally. Furthermore, the Court here as in other cases failed to ground their reasoning in the language or history of the Constitution, applying a principle that may well fluctuate as the membership of the Court does. Next, Justice Scalia criticized the Lemon test, explaining that the Establishment Clause required no such formulation, one which in practice served as merely a means to effectuate the preferences of a shifting majority of the Court. As to the displays in this case, Justice Scalia suggested that the first and second displays may not have been problematic in his view. Displays of the Ten Commandments, important to several faiths, do not impermissibly advance any one faith. Furthermore, the educational goals asserted by the County are a legitimate government purpose, one not lessened by the religious context of some of the texts. While the County may have sought to find a way to display the Ten Commandments, Justice Scalia explained that desire was not impermissible and even so there was certainly not principled basis for relating the final display to the original desire.
Conclusion: The secular purpose prong of Establishment Clause case evaluations is not always dispositive, but is sufficient alone for finding a Constitutional violation. In this case, the Counties sought to advance religion and religious texts through display of documents not cured by subsequent efforts to make the displays more inclusive during the course of litigation.