McCreary County (KY) v. ACLU

Bill Long 7/12/ 05

5-4 decision (6-3 on Scalia's First Point); June 27, 2005

At issue in this case was whether displays of the 10 Commandments along with other historical documents in the Pulaski and McCreary County Courthouses (KY), paid for by private funds, violated the First Amendment prohibition against government establishment of religion. The Court (Souter for the majority) held that such a display violated the first part of the Lemon test--that the display must have a secular legislative purpose, and thereby violated the First Amendment. The dissent would have held that the Lemon test should be overruled and that there is no establishment of religion even if the government officially endorses, and not simply recognizes the historical importance of, monotheism in American culture. An analysis of the opinion is here.

Relevant Facts

The decision seemed to hinge largely on the unique facts of the case. In Summer 1999 these two counties erected a gold-framed display of the 10 Commandments, derived from Ex. 20, in prominent places of their courthouses. When the ACLU brought an injunction in November 1999 to remove these displays, the counties revised their displays. Now the 10 Commandments were flanked by smaller displays of eight other documents, with their religious passages highlighted (e.g., the Declaration of Independence, the Preamble of the KY state constitution; the phrase "In God we Trust" from currency, etc.). In May 2000 the US District Court granted the ACLU's request for injunction on the basis that the displays betrayed a religious purpose, thus contradicting the first prong of the Lemon test. After this the counties changed attorneys and erected yet a third display, this time with the 10 Commandments flanked by 8 historical documents which, together with the 10 Commandments, were supposed to present the foundational documents of KY law. Some of these documents were the Magna Carta, Mayflower Compact, Bill of Rights, lyrics from the Star-Spangled Banner. The ACLU moved to enjoin these displays, also, and the injunction was granted and then affirmed by a panel of the 6th Circuit, with one judge dissenting.

The Flow of Justice Souter' Argument

Three important preliminary points for the Court were: (1) that the 10 Commandments, according to the Stone (1980) decision, was a religious document; (2) that the Lemon test, articulated in 1971, is still the law of the land; and (3) that the Lemon test assumes that government must be not only neutral with respect to favoring one expression of religion over another but also neutral with respect to favoring religion over irreligion. Armed with these three principles, the Court's analysis followed quickly. The first display was certainly a religious display. Statements of by public officials to the contrary (i.e., statements stressing their secular purpose) must be weighed to determine whether they are "sham" purposes or the real purpose in view. Thus, Justice Souter gave a fairly supple reading to 1st Lemon prong. The second and third displays could not correct the first one; a "reasonable observer," a phrase used by Justice O'Connor, would conclude that these displays were all of a piece. Thus, they foundered on the first Lemon prong.

But Justice Souter doesn't stop here. He also probes some statements from the Founding Fathers in order to determine if the non-establishment of religion in the First Amendment was compatible with the endorsement of religion by the government. That is, are endorsement of religion and establishment of religion the same thing? The dissent will claim that they are. Souter argued, however, that the historical evidence was not all of a piece. Certainly there were some official statements and decisions which seemed to suggest that endorsement of religion and non-establishment were compatible. But the evidence wasn't uniform. Therefore, for Souter and the majority, it was more helpful to consider that the Founders had no consistent philosophy on this question (a point, naturally, that drives Justice Scalia up the wall), and that therefore the Court's principle of government neutrality towards religion (articulated first in Everson in 1947), where religion is not to be preferred to irreligion, ought to be affirmed.

Justice Scalia's Dissent

Justice Scalia was joined in dissent by Justices Thomas, Rehnquist and Kennedy (Kennedy only for parts II and III of Scalia's dissent). I want to make Kennedy's position clear because part I of Scalia's opinion is arguably the most radical--claiming not only that there is a unitary tradition in the Founding Fathers of government endorsement of religion that is not the same as government establishment of religion but that the religion that is being endorsed by the Fathers is a generic monotheism. Thus, polytheists and atheists do not have the same kind of claim on government endorsement of their religion as monotheists do. This is the "remarkable" claim, as Souter called it, of the dissent. Yet Scalia quotes at least nine sources which support his point that government endorsement of religion did not mean government establishment of the same.

Some of the examples he gives are legislative provision of chaplain salaries, chaplain prayers at the beginning of legislative session, setting aside national days of thanksgiving to God for safety and deliverance, etc. With this approach to the First Amendment, Scalia believes that the neutrality test of Everson needs to be dispensed with once for all, and that the Lemon test has outlived its usefulness.

Conclusion

What this case seems to show, in the final analysis, is that the basic assumption that the First Amendment mandates government neutrality towards religions and between religion and irrelegion is the centrally debated point of the establishment clause jurisprudence in our day. The next case illustrates a practical illustration of this jurisprudence: that displays of religious objects on public property in the context of secular objects are more likely to be approved by the court than display of religious objects by themselves.

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