SCALIA, J., DISSENTING
MCCREARY COUNTY V. AMERICAN CIVIL LIBERTIESUNION OF KY.
545 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 03-1693
McCREARY COUNTY, KENTUCKY, et al., PETI-
TIONERS
v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY
et al.
on writ of certiorari to the united states court of
appeals for the sixth circuit
[June 27, 2005]
Justice Scalia, with whom The
Chief Justice and Justice Thomas join, and with whom Justice
Kennedy joins as to Parts II and III, dissenting.
I would uphold McCreary County
and Pulaski County, Kentucky’s (hereinafter Counties) displays of
the Ten Commandments. I shall discuss first, why the Court’s oft
repeated assertion that the government cannot favor religious
practice is false; second, why today’s opinion extends the scope of
that falsehood even beyond prior cases; and third, why even on the
basis of the Court’s false assumptions the judgment here is
wrong.
I
A
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
and the next morning virtually all of the participants watched, in
their hotel rooms, the address to the Nation by the President of
the United States concerning the murderous attacks upon the Twin
Towers and the Pentagon, in which thousands of Americans had been
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 a European country, who, after extending
his profound condolences for 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 ______.’ It is of course absolutely forbidden.”
That is one model of the
relationship between church and state—a model spread across Europe
by the armies of Napoleon, and reflected in the Constitution of
France, which begins “France is [a] . . . secular . . . Republic.”
France Const., Art. 1, in 7 Constitutions of the Countries of the
World, p. 1 (G. Flanz ed. 2000). Religion is to be strictly
excluded from the public forum. This is not, and never was, the
model adopted by America. George Washington added to the form of
Presidential oath prescribed by Art. II, §1, cl. 8, of the
Constitution, the concluding words “so help me God.” See Blomquist,
The Presidential Oath, the American National Interest and a Call
for Presiprudence, 73 UMKC L. Rev. 1, 34 (2004). The Supreme
Court under John Marshall opened its sessions with the prayer, “God
save the United States and this Honorable Court.” 1 C. Warren, The
Supreme Court in United States History 469 (rev. ed. 1926). The
First Congress instituted the practice of beginning its legislative
sessions with a prayer.
Marsh v.
Chambers,
463
U. S. 783, 787 (1983). 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 and Senate.
Id., at 788. 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 favours of Almighty God.”
See H. R. Jour., 1st Cong., 1st Sess. 123 (1826 ed.); see also
Sen. Jour., 1st Sess., 88 (1820 ed.). President Washington offered
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,’ ”
Van Orden v.
Perry,
ante, at 7–8
(plurality opinion) (quoting President Washington’s first
Thanksgiving Proclamation), thus beginning a tradition of offering
gratitude to God that continues today. See
Wallace v.
Jaffree,
472 U. S. 38, 100–103 (1985)
(Rehnquist, J., dissenting).[
Footnote 1] The same Congress also reenacted the Northwest
Territory Ordinance of 1787, 1 Stat. 50, Article III of which
provided: “Religion, morality, and knowledge, being necessary to
good government and the happiness of mankind, schools and the means
of education shall forever be encouraged.”
Id., at 52, n.
(a). And of course the First Amendment itself accords
religion (and no other manner of belief) special constitutional
protection.
These actions of our First President and
Congress and the Marshall Court were not idiosyncratic; they
reflected the beliefs of the period. Those who wrote the
Constitution believed that morality was essential to the well-being
of society and that encouragement of religion was the best way to
foster morality. The “fact that the Founding Fathers believed
devotedly that there was a God and that the unalienable rights of
man were rooted in Him is clearly evidenced in their writings, from
the Mayflower Compact to the Constitution itself.”
School Dist.
of Abington Township v.
Schempp, 374 U. S. 203, 213
(1963). See Underkuffler-Freund, The Separation of the Religious
and the Secular: A Foundational Challenge to First-Amendment
Theory, 36 Wm. & Mary L. Rev. 837, 896–918 (1995).
President Washington opened his Presidency with a prayer, see
Inaugural Addresses of the Presidents of the United States 1, 2
(1989), and reminded his fellow citizens at the conclusion of it
that “reason and experience both forbid us to expect that National
morality can prevail in exclusion of religious principle.” Farewell
Address (1796), reprinted in 35 Writings of George Washington 229
(J. Fitzpatrick ed. 1940). President John Adams wrote to the
Massachusetts Militia, “we have no government armed with power
capable of contending with human passions unbridled by morality and
religion. … Our Constitution was made only for a moral and
religious people. It is wholly inadequate to the government of any
other.” Letter (Oct. 11, 1798), reprinted in 9 Works of John Adams
229 (C. Adams ed. 1971). Thomas Jefferson concluded his second
inaugural address by inviting his audience to pray:
“I shall need, too, the favor of that Being in
whose hands we are, who led our fathers, as Israel of old, from
their native land and planted them in a country flowing with all
the necessaries and comforts of life; who has covered our infancy
with His providence and our riper years with His wisdom and power
and to whose goodness I ask you to join in supplications with me
that He will so enlighten the minds of your servants, guide their
councils, and prosper their measures that whatsoever they do shall
result in your good, and shall secure to you the peace, friendship,
and approbation of all nations.” Inaugural Addresses of the
Presidents of the United States, at 18, 22–23.
James Madison, in his first inaugural address,
likewise placed his confidence “in the guardianship and guidance of
that Almighty Being whose power regulates the destiny of nations,
whose blessings have been so conspicuously dispensed to this rising
Republic, and to whom we are bound to address our devout gratitude
for the past, as well as our fervent supplications and best hopes
for the future.”
Id., at 25, 28.
Nor have the views of our people
on this matter significantly changed. Presidents continue to
conclude the Presidential oath with the words “so help me God.” Our
legislatures, state and national, continue to open their sessions
with prayer 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 government, remains commonplace. Our
coinage bears the motto “IN GOD WE TRUST.” And our Pledge of
Allegiance contains the acknowledgment that we are a Nation “under
God.” As one of our Supreme Court opinions rightly observed, “We
are a religious people whose institutions presuppose a Supreme
Being.”
Zorach v.
Clauson, 343 U. S. 306, 313
(1952), repeated with approval in
Lynch v.
Donnelly,
465 U. S. 668, 675
(1984);
Marsh, 463 U. S., at 792;
Abington Township,
supra, at 213.
With all of this reality (and
much more) staring it in the face, how can the Court
possibly assert that “ ‘the First Amendment mandates
governmental neutrality between … religion and nonreligion,’ ”
ante, at 11, and that “[m]anifesting a purpose to favor .
. . adherence to religion generally,”
ante, at 12, 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 our society, recently reflected in an Act
of Congress adopted
unanimously by the Senate and with
only 5 nays in the House of Representatives, see 148 Cong. Rec.
S6226 (2002);
id., at H7186, criticizing a Court of
Appeals opinion that had held “under God” in the Pledge of
Allegiance unconstitutional. See Act of Nov. 13, 2002, §§1(9),
2(a), 3(a), 116 Stat. 2057, 2058, 2060–2061 (reaffirming the Pledge
of Allegiance and the National Motto (“In God We Trust”) and
stating that the Pledge of Allegiance is “clearly consistent with
the text and intent of the Constitution”). Nothing stands behind
the Court’s assertion that governmental affirmation of the
society’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 farther than the mid-20th century. See
ante, at 11, citing
Corporation of Presiding Bishop of
Church of Jesus Christ of Latter&nbhyph;day Saints v.
Amos, 483
U. S. 327, 335 (1987), in turn citing
Lemon v.
Kurtzman,
403 U. S. 602, 612
(1971), in turn citing
Board of Ed. of Central School Dist. No.
1 v.
Allen, 392 U. S. 236, 243
(1968), in turn quoting
Abington Township, supra,
at 222, in turn citing
Everson v.
Board of Ed. of
Ewing, 330 U. S.
1, 15 (1947).[
Footnote 2]
And it is, moreover, a thoroughly discredited say-so. It is
discredited, 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 brain-spun
“
Lemon test” that embodies the supposed principle of
neutrality between religion and irreligion. See
Lamb’s
Chapel v.
Center Moriches Union Free School Dist.,
508 U. S. 384,
398–399 (1993) (Scalia, J., concurring in judgment) (collecting
criticism of
Lemon);
Van Orden,
ante, at
1, 6 (Thomas, J., concurring);
Board of Ed. of Kiryas Joel
Village School Dist. v.
Grumet, 512 U. S. 687, 720
(1994) (O’Connor, J., concurring in part and concurring in
judgment);
County of Allegheny v.
American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 655–656,
672–673 (1989) (Kennedy, J., concurring in judgment in part and
dissenting in part);
Wallace, 472 U. S., at 112
(Rehnquist, J., dissenting); see also
Committee for Public Ed.
and Religious Liberty v.
Regan, 444 U. S. 646, 671
(1980) (Stevens, J., dissenting) (disparaging “the sisyphean task
of trying to patch together the ‘blurred, indistinct, and variable
barrier’ described in
Lemon”). And it is discredited
because the Court has not had the courage (or the foolhardiness) to
apply the neutrality principle consistently.
What distinguishes the rule of law from the
dictatorship of a shifting Supreme Court majority is the absolutely
indispensable requirement that judicial opinions be grounded in
consistently applied principle. That is what prevents judges from
ruling now this way, now that—thumbs up or thumbs down—as their
personal preferences dictate. Today’s opinion forthrightly (or
actually, somewhat less than forthrightly) admits that it does not
rest upon consistently applied principle. In a revealing footnote,
ante, at 11, n. 10, 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
lovely euphemism is that sometimes the Court chooses to decide
cases on the principle that government cannot favor religion, and
sometimes it does not. The footnote goes on to say that “[i]n
special instances we have found good reason” to dispense with the
principle, but “[n]o such reasons present themselves here.”
Ibid. It does not identify all of those “special
instances,” much less identify the “good reason” for their
existence.
I have cataloged elsewhere the variety of
circumstances in which this Court—even
after its embrace
of
Lemon’s stated prohibition of such behavior—has
approved government action “undertaken with the specific intention
of improving the position of religion,”
Edwards v.
Aguillard, 482 U. S. 578, 616 (1987) (Scalia, J.,
dissenting). See
id., 616–618. Suffice it to say here that
when the government relieves churches from the obligation to pay
property taxes, when it allows students to absent themselves from
public school to take religious classes, and when it exempts
religious organizations from generally applicable prohibitions of
religious discrimination, it surely means to bestow a benefit on
religious practice—but we have approved it. See
Amos,
supra, at 338 (exemption from federal prohibition of
religious discrimination by employers);
Walz v.
Tax
Comm’n of City of New York, 397 U. S. 664, 673
(1970) (property tax exemption for church property);
Zorach, 343 U. S., at 308, 315 (law permitting students to
leave public school for the purpose of receiving religious
education). Indeed, we have even approved (post-
Lemon)
government-led prayer to God. In
Marsh v.
Chambers,
supra, the Court upheld the Nebraska
State Legislature’s practice of paying a chaplain to lead it in
prayer at the opening of legislative sessions. The Court explained
that “[t]o invoke Divine guidance on a public body entrusted with
making the laws is not . . . an ‘establishment’ of religion or a
step toward establishment; it is simply a tolerable acknowledgment
of beliefs widely held among the people of this country.” 463 U.
S., at 792. (Why, one wonders, is not respect for the Ten
Commandments a tolerable acknowledgment of beliefs widely held
among the people of this country?)
The only “good reason” for ignoring the
neutrality principle set forth in any of these cases was the
antiquity of the practice at issue. See
Marsh,
supra, at 786–792, 794;
Walz,
supra, at
676–680. That would be a good reason for finding the neutrality
principle a mistaken interpretation of the Constitution, but it is
hardly a good reason for letting an unconstitutional practice
continue. We did not hide behind that reason in
Reynolds
v.
Sims,
377 U. S. 533 (1964),
which found unconstitutional bicameral state legislatures of a sort
that had existed since the beginning of the Republic. And almost
monthly, it seems, the Court has not shrunk from invalidating
aspects of criminal procedure and penology of similar vintage. See,
e.g.,
Deck v.
Missouri, 544 U. S. ___,
___ (2005) (slip op., at 10–11) (invalidating practice of shackling
defendants absent “special circumstances”);
id., at ___
(slip op., at 7–11) (Thomas, J., dissenting);
Roper v.
Simmons, 543 U. S. ___, ___ (2005) (slip op., at 14)
(invalidating practice of executing under-18-year-old offenders);
id., at ___ (slip op., at 2, n. 1) (Scalia, J.,
dissenting). What, then, could be the genuine “good reason” for
occasionally ignoring the neutrality principle? I suggest it is the
instinct for self-preservation, and the recognition that the Court,
which “has no influence over either the sword or the purse,” The
Federalist No. 78, p. 412 (J. Pole ed. 2005), cannot go too far
down the road of an enforced neutrality that contradicts both
historical fact and current practice without losing all that
sustains it: 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 demonstrably false
principle that the government cannot favor religion over
irreligion, today’s opinion suggests that the posting of the Ten
Commandments violates the principle that the government cannot
favor one religion over another. See
ante, at 19; see also
Van Orden,
ante, at 11–13 (Stevens, J.,
dissenting). That is indeed a valid principle where public aid or
assistance to religion is concerned, see
Zelman v.
Simmons-Harris, 536 U. S. 639, 652
(2002), or where the free exercise of religion is at issue,
Church of Lukumi Babalu Aye, Inc. v.
Hialeah,
508 U. S. 520,
532–533 (1993);
id., at 557–558 (Scalia, J., concurring in
part and concurring in judgment), but it necessarily applies in a
more limited sense to public acknowledgment of the Creator. If
religion in the public forum had to be entirely nondenominational,
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 public
acknowledgment of religious belief, it is entirely clear from our
Nation’s historical practices that the Establishment Clause permits
this disregard of polytheists and believers in unconcerned deities,
just as it permits the disregard of devout atheists. The
Thanksgiving Proclamation issued by George Washington at the
instance of the First Congress was scrupulously
nondenominational—but it was monotheistic.
[Footnote 3] In
Marsh v. Chambers, supra, we said that the fact
the particular prayers offered in the Nebraska Legislature were “in
the Judeo-Christian tradition,” id., at 793, posed no
additional problem, because “there is no indication that the prayer
opportunity has been exploited to proselytize or advance any one,
or to disparage any other, faith or belief,” id., at
794–795.
Historical practices thus
demonstrate that there is a distance between the acknowledgment of
a single Creator and the establishment of a religion. The former
is, as Marsh v. Chambers put it, “a tolerable
acknowledgment of beliefs widely held among the people of this
country.” Id., at 792. The three most popular religions in
the United States, Christianity, Judaism, and Islam—which combined
account for 97.7% of all believers—are monotheistic. See U. S.
Dept. of Commerce, Bureau of Census, Statistical Abstract of the
United States: 2004–2005, p. 55 (124th ed. 2004) (Table No. 67).
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. See 13 Encyclopedia of Religion
9074 (2d ed. 2005); The Qur’an 104 (M. Haleem trans. 2004).
Publicly honoring the Ten Commandments is thus indistinguishable,
insofar as discriminating against other religions is concerned,
from publicly honoring God. Both practices are recognized across
such a broad and diverse range of the population—from Christians to
Muslims—that they cannot be reasonably understood as a government
endorsement of a particular religious viewpoint.[Footnote 4]
B
A few remarks are
necessary in response to the criticism of this dissent by the
Court, as well as Justice Stevens’ criticism in the related case of
Van Orden v. Perry, ante, p. 1.
Justice Stevens’ writing is largely devoted to an attack
upon a straw man. “[R]eliance on early religious proclamations and
statements made by the Founders is … problematic,” he says,
“because those views were not espoused at the Constitutional
Convention in 1787 nor enshrined in the Constitution’s text.”
Van Orden, ante, at 18–19 (dissenting opinion)
(footnote omitted). But I have not relied upon (as he and the Court
in this case do) mere “proclamations and statements” of the
Founders. I have relied primarily upon official acts and official
proclamations of the United States or of the component branches of
its Government, including the First Congress’s beginning of the
tradition of legislative prayer to God, its appointment of
congressional chaplains, its legislative proposal of a Thanksgiving
Proclamation, and its reenactment of the Northwest Territory
Ordinance; our first President’s issuance of a Thanksgiving
Proclamation; and invocation of God at the opening of sessions of
the Supreme Court. The only mere “proclamations and statements” of
the Founders I have relied upon were statements of Founders who
occupied federal office, and spoke in at least a quasi-official
capacity—Washington’s prayer at the opening of his Presidency and
his Farewell Address, President John Adams’ letter to the
Massachusetts Militia, and Jefferson’s and Madison’s inaugural
addresses. The Court and Justice Stevens, by contrast, appeal to no
official or even quasi-official action in support of their view of
the Establishment Clause—only James Madison’s Memorial and
Remonstrance Against Religious Assessments, written before the
federal Constitution had even been proposed, two letters written by
Madison long after he was President, and the quasi-official
inaction of Thomas Jefferson in refusing to issue a
Thanksgiving Proclamation. See ante, at 30–31; Van
Orden, ante, at 19 (Stevens, J., dissenting). The
Madison Memorial and Remonstrance, dealing as it does with enforced
contribution to religion rather than public acknowledgment of God,
is irrelevant; one of the letters is utterly ambiguous as to the
point at issue here, and should not be read to contradict Madison’s
statements in his first inaugural address, quoted earlier; even the
other letter does not disapprove public acknowledgment of God,
unless one posits (what Madison’s own actions as President would
contradict) that reference to God contradicts “the equality of
all religious sects.” See Letter from James Madison to
Edward Livingston (July 10, 1822), in 5 The Founders’ Constitution
105–106 (P. Kurland & R. Lerner eds. 1987). And as to
Jefferson: the notoriously self-contradicting Jefferson did not
choose to have his nonauthorship of a Thanksgiving Proclamation
inscribed on his tombstone. What he did have inscribed was his
authorship of the Virginia Statute for Religious Freedom, a
governmental act which begins “Whereas Almighty God hath created
the mind free . . . .” Va. Code Ann. §57–1 (Lexis 2003).
It is no answer
for Justice Stevens to say that the understanding that these
official and quasi-official actions reflect was not “enshrined in
the Constitution’s text.” Van Orden, ante, at 18
(dissenting opinion). The Establishment Clause, upon which Justice
Stevens would rely, was enshrined in the Constitution’s
text, and these official actions show what it meant. There
were doubtless some who thought it should have a broader meaning,
but those views were plainly rejected. Justice Stevens says that
reliance on these actions is “bound to paint a misleading picture,”
Van Orden, ante, at 19, but it is hard to see
why. What is more probative of the meaning of the Establishment
Clause than the actions of the very Congress that proposed it, and
of the first President charged with observing it?
Justice Stevens also appeals
to the undoubted fact that some in the founding generation thought
that the Religion Clauses of the First Amendment should have a
narrower meaning, protecting only the Christian religion
or perhaps only Protestantism. See Van Orden,
ante, at 20–22. I am at a loss to see how this helps his
case, except by providing a cloud of obfuscating smoke. (Since most
thought the Clause permitted government invocation of monotheism,
and some others thought it permitted government invocation of
Christianity, he proposes that it be construed not to permit any
government invocation of religion at all.) At any rate, those
narrower views of the Establishment Clause were as clearly rejected
as the more expansive ones. Washington’s First Thanksgiving
Proclamation is merely an example. All of the actions of
Washington and the First Congress upon which I have relied,
virtually all Thanksgiving Proclamations throughout our
history,[Footnote 5] and
all the other examples of our Government’s favoring
religion that I have cited, have invoked God, but not Jesus
Christ.[Footnote 6] Rather than
relying upon Justice Stevens’ assurance that “[t]he original
understanding of the type of ‘religion’ that qualified for
constitutional protection under the First amendment certainly did
not include . . . followers of Judaism and Islam,” Van
Orden, ante, at 22; see also ante, at 32–33,
I would prefer to take the word of George Washington, who, in his
famous Letter to the Hebrew Congregation of Newport, Rhode Island,
wrote that,
“All possess alike liberty of
conscience and immunities of citizenship. It is now no more that
toleration is spoken of, as if it was by the indulgence of one
class of people, that another enjoyed the exercise of their
inherent natural rights.” 6 The Papers of George Washington,
Presidential Series 285 (D. Twohig et al. eds.
1996).
The letter concluded, by the way,
with an invocation of the one God:
“May the father of all mercies
scatter light and not darkness in our paths, and make us all in our
several vocations useful here, and in his own due time and way
everlastingly happy.” Ibid.
Justice Stevens
says that if one is serious about following the original
understanding of the Establishment Clause, he must repudiate its
incorporation into the Fourteenth Amendment, and hold that it does
not apply against the States. See Van Orden,
ante, at 24–26 (dissenting opinion). This is more smoke.
Justice Stevens did not feel that way last Term, when he joined an
opinion insisting upon the original meaning of the Confrontation
Clause, but nonetheless applying it against the State of
Washington. See Crawford v. Washington, 541 U. S. 36 (2004). The
notion that incorporation empties the incorporated provisions of
their original meaning has no support in either reason or
precedent.
Justice Stevens argues that
original meaning should not be the touchstone anyway, but that we
should rather “expoun[d] the meaning of constitutional provisions
with one eye towards our Nation’s history and the other fixed on
its democratic aspirations.” Van Orden, ante, at
27–28 (dissenting opinion). This is not the place to debate the
merits of the “living Constitution,” though I must observe that
Justice Stevens’ quotation from McCulloch v.
Maryland, 4 Wheat. 316, 407 (1819), refutes rather than
supports that approach.[Footnote
7] Even assuming, however, that the meaning
of the Constitution ought to change according to “democratic
aspirations,” why are those aspirations to be found in Justices’
notions of what the Establishment Clause ought to mean, rather than
in the democratically adopted dispositions of our current society?
As I have observed above, numerous provisions of our laws and
numerous continuing practices of our people demonstrate that the
government’s invocation of God (and hence the government’s
invocation of the Ten Commandments) is unobjectionable—including a
statute enacted by Congress almost unanimously less than three
years ago, stating that “under God” in the Pledge of Allegiance is
constitutional, see 116 Stat., at 2058. To ignore all this is not
to give effect to “democratic aspirations” but to frustrate
them.
Finally, I must
respond to Justice Stevens’ assertion that I would “marginaliz[e]
the belief systems of more than 7 million Americans” who adhere to
religions that are not monotheistic. Van Orden,
ante, at 13–14, n. 18 (dissenting opinion). Surely
that is a gross exaggeration. The beliefs of those citizens are
entirely protected by the Free Exercise Clause, and by those
aspects of the Establishment Clause that do not relate to
government acknowledgment of the Creator. Invocation of God despite
their beliefs is permitted not because nonmonotheistic religions
cease to be religions recognized by the religion clauses of the
First Amendment, but because governmental invocation of God is not
an establishment. Justice Stevens fails to recognize that in the
context of public acknowledgments of God there are legitimate
competing interests: On the one hand, the interest of that
minority in not feeling “excluded”; but on the other, 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.[Footnote 8] 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.”
II
As bad as the
Lemon test is, it is worse for the fact that, since its
inception, its seemingly simple mandates have been manipulated to
fit whatever result the Court aimed to achieve. Today’s opinion is
no different. In two respects it modifies Lemon to ratchet
up the Court’s hostility to religion. First, the Court justifies
inquiry into legislative purpose, not as an end itself, but as a
means to ascertain the appearance of the government action to an
“ ‘objective observer.’ ” Ante, at 13. Because
in the Court’s view the true danger to be guarded against is that
the objective observer would feel like an “outside[r]” or “not [a]
full membe[r] of the political community,” its inquiry focuses not
on the actual purpose of government action, but the
“purpose apparent from government action.” Ante, at
12. Under this approach, even if a government could show
that its actual purpose was not to advance religion, it would
presumably violate the Constitution as long as the Court’s
objective observer would think otherwise. See Capitol Square
Review and Advisory Bd. v. Pinette, 515 U.S. 753,
776–777 (1995) (O’Connor, J., concurring in part and concurring in
judgment) (stating that “when the reasonable observer would view a
government practice as endorsing religion, . . . it is our
duty to hold the practice invalid,” even if the law at
issue was neutral and the benefit conferred on the religious entity
was incidental).
I have remarked
before that it is an odd jurisprudence that bases the
unconstitutionality of a government practice that does not
actually advance religion on the hopes of the government
that it would do so. See Edwards, 482 U. S., at
639. But that oddity pales in comparison to the one invited by
today’s analysis: the legitimacy of a government action with a
wholly secular effect would turn on the misperception of
an imaginary observer that the government officials behind the
action had the intent to advance religion.
Second, the Court replaces
Lemon’s requirement that the government have “a
secular . . . purpose,” 403 U. S., at 612 (emphasis added), with
the heightened requirement that the secular purpose “predominate”
over any purpose to advance religion. Ante, at 15–17. The
Court treats this extension as a natural outgrowth of the
longstanding requirement that the government’s secular purpose not
be a sham, but simple logic shows the two to be unrelated. If the
government’s proffered secular purpose is not genuine, then the
government has no secular purpose at all. The new demand that
secular purpose predominate contradicts Lemon’s more
limited requirement, and finds no support in our cases. In all but
one of the five cases in which this Court has invalidated a
government practice on the basis of its purpose to benefit
religion, it has first declared that the statute was motivated
entirely by the desire to advance religion. See Santa Fe
Independent School Dist. v. Doe, 530 U. S. 290, 308–309 (2000)
(dismissing the school district’s proffered secular purposes as
shams); Wallace, 472 U. S., at 56 (finding “no
secular purpose”) (emphasis added); Stone v.
Graham, 449
U. S. 39, 41 (1980) (per curiam) (finding that
“Kentucky’s statute requiring the posting of the Ten Commandments
in public school rooms has no secular legislative
purpose”) (emphasis added); Epperson v.
Arkansas, 393 U. S. 97, 107–109
(1968). In Edwards, supra, the Court did say that
the state action was invalid because its “primary” or “preeminent”
purpose was to advance a particular religious belief, 482 U. S., at
590, 593, 594, but that statement was unnecessary to the result,
since the Court rejected the State’s only proffered secular purpose
as a sham. See id., at 589.
I have urged that
Lemon’s purpose prong be abandoned, because (as I have
discussed in Part I) even an exclusive purpose to foster
or assist religious practice is not necessarily invalidating. But
today’s extension makes things even worse. By shifting the focus of
Lemon’s purpose prong from the search for a genuine,
secular motivation to the hunt for a predominantly religious
purpose, the Court converts what has in the past been a fairly
limited inquiry into a rigorous review of the full record.[Footnote 9] Those responsible for the
adoption of the Religion Clauses would surely regard it as a bitter
irony that the religious values they designed those Clauses to
protect have now become so distasteful to this Court that
if they constitute anything more than a subordinate motive for
government action they will invalidate it.
III
Even accepting
the Court’s Lemon-based premises, the displays at issue
here were constitutional.
A
To any person who
happened to walk down the hallway of the McCreary or Pulaski County
Courthouse during the roughly nine months when the Foundations
Displays were exhibited, the displays must have seemed
unremarkable—if indeed they were noticed at all. The walls of both
courthouses were already lined with historical documents and other
assorted portraits; each Foundations Display was exhibited in the
same format as these other displays and nothing in the record
suggests that either County took steps to give it greater
prominence.
Entitled “The
Foundations of American Law and Government Display,” each display
consisted of nine equally sized documents: the original version of
the Magna Carta, the Declaration of Independence, the Bill of
Rights, the Star Spangled Banner, the Mayflower Compact of 1620, a
picture of Lady Justice, the National Motto of the United States
(“In God We Trust”), the Preamble to the Kentucky Constitution, and
the Ten Commandments. The displays did not emphasize any of the
nine documents in any way: The frame holding the Ten Commandments
was of the same size and had the same appearance as that which held
each of the other documents. See 354 F. 3d 438, 443 (CA6
2003).
Posted with the documents was
a plaque, identifying the display, and explaining that it “contains
documents that played a significant role in the foundation of our
system of law and government.” Ibid. The explanation
related to the Ten Commandments was third in the list of nine and
did not serve to distinguish it from the other documents. It
stated:
“The Ten
Commandments have profoundly influenced the formation of Western
legal thought and the formation of our country. That influence is
clearly seen in the Declaration of Independence, which declared
that, ‘We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty, and the
pursuit of Happiness.’ The Ten Commandments provide the moral
background of the Declaration of Independence and the foundation of
our legal tradition.” Ibid.
B
On its face, the
Foundations Displays manifested the purely secular purpose that the
Counties asserted before the District Court: “to display documents
that played a significant role in the foundation of our system of
law and government.” Affidavit of Judge Jimmie Green in Support of
Defendants’ Opposition to Plaintiffs’ Motion for Contempt or, in
the Alternative, for Supplemental Preliminary Injunction in Civ. A.
No. 99–507 (ED Ky.), p. 2. That the Displays included the Ten
Commandments did not transform their apparent secular purpose into
one of impermissible advocacy for Judeo-Christian beliefs. Even an
isolated display of the Decalogue conveys, at worst, “an equivocal
message, perhaps of respect for Judaism, for religion in general,
or for law.” Allegheny County, 492 U. S., at 652 (Stevens,
J., concurring in part and dissenting in part). But when the Ten
Commandments appear alongside other documents of secular
significance in a display devoted to the foundations of American
law and government, the context communicates that the Ten
Commandments are included, not to teach their binding nature as a
religious text, but to show their unique contribution to the
development of the legal system. See id., at 652–653. This
is doubly true when the display is introduced by a document that
informs passersby that it “contains documents that played a
significant role in the foundation of our system of law and
government.”
The same result
follows if the Ten Commandments display is viewed in light of the
government practices that this Court has countenanced in the past.
The acknowledgment of the contribution that religion in general,
and the Ten Commandments in particular, have made to our Nation’s
legal and governmental heritage is surely no more of a step towards
establishment of religion than was the practice of legislative
prayer we approved in Marsh v. Chambers, 463
U. S. 783 (1983), and it seems to be on par with the inclusion
of a crčche or a menorah in a “Holiday” display that
incorporates other secular symbols, see Lynch,
supra, at 679–680; Allegheny County,
supra, at 621. The parallels between this case and
Marsh and Lynch are sufficiently compelling that
they ought to decide this case, even under the Court’s misguided
Establishment Clause jurisprudence.[Footnote 10]
Acknowledgment of the
contribution that religion has made to our Nation’s legal and
governmental heritage partakes of a centuries-old tradition.
Members of this Court have themselves often detailed the degree to
which religious belief pervaded the National Government during the
founding era. See Lynch, supra, at 674–678;
Marsh, supra, at 786–788; Lee v.
Weisman, 505 U. S. 577, 633–636 (1992) (Scalia,
J., dissenting); Wallace, 472 U. S. at 100–106 (Rehnquist,
J., dissenting); Engel v. Vitale, 370 U. S. 421, 446–450,
and n. 3 (1962) (Stewart, J., dissenting). Display of the Ten
Commandments is well within the mainstream of this practice of
acknowledgment. Federal, State, and local governments across the
Nation have engaged in such display.[Footnote 11] The Supreme Court Building itself includes
depictions of Moses with the Ten Commandments in the Courtroom and
on the east pediment of the building, and symbols of the Ten
Commandments “adorn the metal gates lining the north and south
sides of the Courtroom as well as the doors leading into the
Courtroom.” Van Orden, ante, at 9 (plurality
opinion). Similar depictions of the Decalogue appear on public
buildings and monuments throughout our Nation’s Capital.
Ibid. The frequency of these displays testifies to the
popular understanding that the Ten Commandments are a foundation of
the rule of law, and a symbol of the role that religion played, and
continues to play, in our system of government.
Perhaps in recognition of the
centrality of the Ten Commandments as a widely recognized symbol of
religion in public life, the Court is at pains to dispel the
impression that its decision will require governments across the
country to sandblast the Ten Commandments from the public square.
See ante, at 26. The constitutional problem, the Court
says, is with the Counties’ purpose in erecting the
Foundations Displays, not the displays themselves. The Court adds
in a footnote: “One consequence of taking account of the purpose
underlying past actions is that the same government action may be
constitutional if taken in the first instance and unconstitutional
if it has a sectarian heritage.” Ante, at 18,
n. 14.
This inconsistency may be
explicable in theory, but I suspect that the “objective observer”
with whom the Court is so concerned will recognize its absurdity in
practice. By virtue of details familiar only to the parties to
litigation and their lawyers, McCreary and Pulaski Counties,
Kentucky, and Rutherford County, Tennessee, have been ordered to
remove the same display that appears in courthouses from Mercer
County, Kentucky to Elkhart County, Indiana. Compare American
Civil Liberties Union of Tenn. v. Rutherford County,
209 F. Supp. 2d 799, 808–809 (MD Tenn. 2002) (holding
Foundations Display to be unconstitutional based on prior actions
of county commission) with Books v. Elkhart
County, 401 F. 3d 857, 869 (CA7 2005) (sustaining
Foundations Display as “secular . . . in its purpose and effect”);
American Civil Liberties Union of Ky. v. Mercer
County, 219 F. Supp. 2d 777, 787–789 (ED Ky. 2002)
(rejecting Establishment Clause challenge to an identical
Foundations Display and distinguishing McCreary County on
the ground that the County’s purpose had not been “tainted with any
prior history”). Displays erected in silence (and under the
direction of good legal advice) are permissible, while those hung
after discussion and debate are deemed unconstitutional. Reduction
of the Establishment Clause to such minutiae trivializes the
Clause’s protection against religious establishment; indeed, it may
inflame religious passions by making the passing comments of every
government official the subject of endless litigation.
C
In any event, the
Court’s conclusion that the Counties exhibited the Foundations
Displays with the purpose of promoting religion is doubtful. In the
Court’s view, the impermissible motive was apparent from the
initial displays of the Ten Commandments all by themselves: When
that occurs, the Court says, “a religious object is unmistakable.”
Ante, at 21. Surely that cannot be. If, as discussed
above, the Commandments have a proper place in our civic history,
even placing them by themselves can be civically
motivated—especially when they are placed, not in a school (as they
were in the Stone case upon which the Court places such
reliance), but in a courthouse. Cf. Van Orden,
ante, at 4 (Breyer, J., concurring in judgment) (“The
circumstances surrounding the display’s placement on the capital
grounds, and its physical setting suggest that the State itself
intended the … nonreligious aspects of the tablets’ message to
predominate”). And the fact that at the posting of the exhibit a
clergyman was present is unremarkable (clergymen taking particular
pride in the role of the Ten Commandments in our civic history);
and even more unremarkable the fact that the clergyman “testified
to the certainty of the existence of God,” ante, at
21.
The Court has in the past
prohibited government actions that “proselytize or advance any one,
or . . . disparage any other, faith or belief,” see Marsh,
463 U. S., at 794–795, or that apply some level of coercion (though
I and others have disagreed about the form that coercion must
take), see, e.g., Lee v. Weisman, 505 U.
S., at 592 (prayer at high-school graduation invalid because of
“subtle coercive pressure”); id., at 642 (Scalia, J.,
dissenting). The passive display of the Ten Commandments, even
standing alone, does not begin to do either. What Justice Kennedy
said of the crčche in Allegheny County is
equally true of the Counties’ original Ten Commandments
displays:
“No one was compelled to observe or
participate in any religious ceremony or activity. [T]he count[ies]
[did not] contribut[e] significant amounts of tax money to serve
the cause of one religious faith. [The Ten Commandments] are purely
passive symbols of [the religious foundation for many of our laws
and governmental institutions]. Passersby who disagree with the
message conveyed by th[e] displays are free to ignore them, or even
to turn their backs, just as they are free to do when they disagree
with any other form of government speech.” 492 U. S., at 664
(opinion concurring in judgment in part and dissenting in
part).
Nor is it the case that a solo
display of the Ten Commandments advances any one faith. They are
assuredly a religious symbol, but they are not so closely
associated with a single religious belief that their display can
reasonably be understood as preferring one religious sect over
another. The Ten Commandments are recognized by Judaism,
Christianity, and Islam alike as divinely given. See 13
Encyclopedia of Religion 9074 (2d ed. 2005).[Footnote 12]
The Court also points to the
Counties’ second displays, which featured a number of statements in
historical documents reflecting a religious influence, and the
resolutions that accompanied their erection, as evidence of an
impermissible religious purpose.[Footnote 13] In the Court’s view, “[t]he [second]
display’s unstinting focus . . . on religious passages, show[s]
that the Counties were posting the Commandments precisely because
of their sectarian content.” Ante, at 22. No, all it
necessarily shows is that the exhibit was meant to focus upon the
historic role of religious belief in our national life—which is
entirely permissible. And the same can be said of the resolution.
To forbid any government focus upon this aspect of our history is
to display what Justice Goldberg called “untutored devotion to the
concept of neutrality,” Abington Township, 374 U. S., at
306 (concurring opinion), that would commit the Court (and the
Nation) to a revisionist agenda of secularization.
Turning at last to the
displays actually at issue in this case, the Court faults the
Counties for not repealing the resolution expressing what
the Court believes to be an impermissible intent. Under these
circumstances, the Court says, “no reasonable observer could
swallow the claim that the Counties had cast off the objective so
unmistakable in the earlier displays.” Ante, at 24. Even
were I to accept all that the Court has said before, I would not
agree with that assessment. To begin with, of course, it is
unlikely that a reasonable observer would even have been
aware of the resolutions, so there would be nothing to “cast
off.” The Court implies that the Counties may have been able to
remedy the “taint” from the old resolutions by enacting a new one.
See ante, at 23–24. But that action would have been wholly
unnecessary in light of the explanation that the Counties included
with the displays themselves: A plaque next to the
documents informed all who passed by that each display “contains
documents that played a significant role in the foundation of our
system of law and government.” Additionally, there was no reason
for the Counties to repeal or repudiate the resolutions adopted
with the hanging of the second displays, since they related
only to the second displays. After
complying with the District Court’s order to remove the second
displays “immediately,” and erecting new displays that in content
and by express assertion reflected a different purpose
from that identified in the resolutions, the Counties had no reason
to believe that their previous resolutions would be deemed to be
the basis for their actions.[Footnote 14] After the Counties discovered that the
sentiments expressed in the resolutions could be attributed to
their most recent displays (in oral argument before this Court),
they repudiated them immediately.
In sum: The
first displays did not necessarily evidence an intent to further
religious practice; nor did the second displays, or the resolutions
authorizing them; and there is in any event no basis for
attributing whatever intent motivated the first and second displays
to the third. Given the presumption of regularity that always
accompanies our review of official action, see supra, at
18–19 n. 9, the Court has identified no evidence of a purpose
to advance religion in a way that is inconsistent with our cases.
The Court may well be correct in identifying the third displays as
the fruit of a desire to display the Ten Commandments,
ante, at 24, but neither our cases nor our history support
its assertion that such a desire renders the fruit
poisonous.
***
For the foregoing reasons, I would reverse
the judgment of the Court of Appeals.
Footnote 1
See,
e.g., President’s Thanksgiving Day 2004 Proclamation (Nov.
23, 2004), available at
http://www.whitehouse.gov/news/releases/2004/11/ 20041123-4.html
(all internet materials as visited June 24, 2005 and available in
Clerk of Court’s case file).
Footnote 2
The
fountainhead of this jurisprudence, Everson v. Board
of Ed. of Ewing, based its dictum that “[n]either a state nor
the Federal Government . . . can pass laws which . . . aid all
religions,” 330 U. S., at 15, on a review of historical evidence
that focused on the debate leading up to the passage of the
Virginia Bill for Religious Liberty, see id., at 11–13. A
prominent commentator of the time remarked (after a thorough review
of the evidence himself) that it appeared the Court had been “sold
. . . a bill of goods.” Corwin, The Supreme Court as National
School Board, 14 Law & Contemp. Prob. 3, 16
(1949).
Footnote 3
The Court
thinks it “surpris[ing]” and “truly remarkable” to believe that
“the deity the Framers had in mind” (presumably in all the
instances of invocation of the deity I have cited) “was the God of
monotheism.” Ante, at 32. This reaction would be more
comprehensible if the Court could suggest what other God (in the
singular, and with a capital G) there is, other than “the
God of monotheism." This is not necessarily the Christian
God (though if it were, one would expect Christ regularly to be
invoked, which He is not); but it is inescapably the God
of monotheism.
Footnote 4
This is not
to say that a display of the Ten Commandments could never
constitute an impermissible endorsement of a particular religious
view. The Establishment Clause would prohibit, for example,
governmental endorsement of a particular version of the Decalogue
as authoritative. Here the display of the Ten Commandments
alongside eight secular documents, and the plaque’s explanation for
their inclusion, make clear that they were not posted to take sides
in a theological dispute.
Footnote 5
The two
exceptions are the March 23, 1798 proclamation of John Adams, which
asks God “freely to remit all our offenses” “through the Redeemer
of the World,” http://www.pilgrimhall.org/ThanxProc1789.htm, and
the November 17, 1972 proclamation of Richard Nixon, which stated,
“From Moses at the Red Sea to Jesus preparing to feed the
multitudes, the Scriptures summon us to words and deeds of
gratitude, even before divine blessings are fully perceived,”
Presidential Proclamation No. 4170, 37 Fed. Reg. 24647
(1972).
Footnote 6
Justice
Stevens finds that Presidential inaugural and farewell speeches
(which are the only speeches upon which I have relied) do not
violate the Establishment Clause only because everyone knows that
they express the personal religious views of the speaker, and not
government policy. See Van Orden, ante, at 17–18
(dissenting opinion). This is a peculiar stance for one who has
voted that a student-led invocation at a high school football game
and a rabbi-led invocation at a high school graduation did
constitute the sort of governmental endorsement of religion that
the Establishment Clause forbids. See Santa Fe Independent
School Dist. v. Doe, 530 U. S. 290 (2000); Lee v.
Weisman, 505 U. S. 577
(1992).
Footnote 7
See Scalia,
Originalism: The Lesser Evil, 57 Cincinnati L. Rev. 852–853
(1989).
Footnote 8
Nothing so
clearly demonstrates the utter inconsistency of our Establishment
Clause jurisprudence as Justice O’Connor’s stirring concurrence in
the present case. “[W]e do not,” she says, “count heads before
enforcing the First Amendment.” Ante, at 4. But Justice
O’Connor joined the opinion of the Court in Marsh v.
Chambers, 463
U. S. 783 (1983) which held legislative prayer to be “a
tolerable acknowledgment of beliefs widely held among the people of
this country.” Id., at 792.
Footnote 9
The Court’s
reflexive skepticism of the government’s asserted secular purposes
is flatly inconsistent with the deferential approach taken by our
previous Establishment Clause cases. We have repeated many times
that, where a court undertakes the sensitive task of reviewing a
government’s asserted purpose, it must take the government at its
word absent compelling evidence to the contrary. See,
e.g., Edwards v. Aguillard, 482 U. S. 578, 586 (stating that “the
Court is . . . deferential to a State’s articulation of a secular
purpose,” unless that purpose is insincere or a sham);
Mueller v. Allen, 463 U. S. 388, 394–395
(1983) (ascribing the Court’s disinclination to invalidate
government practices under Lemon’s purpose prong to its
“reluctance to attribute unconstitutional motives to the States,
particularly when a plausible secular purpose for the State’s
program may be discerned from the face of the statute”); see also
Wallace v. Jaffree, 472 U. S. 38, 74 (O’Connor, J.,
concurring in judgment) (“the inquiry into the purpose of the
legislature . . . should be deferential and
limited”).
Footnote 10
The Court’s
only response is that the inclusion of the Ten Commandments in a
display about the foundations of American law reflects “a purpose
to call on citizens to act in prescribed ways as a personal
response to divine authority,” in a way that legislative prayer and
the inclusion of a crčche in a Holiday display do not.
See ante, at 30, n. 24. That might be true if the
Commandments were displayed by themselves in a church, or even in
someone’s home. It seems to me patently untrue—given the
Decalogue’s “undeniable historical meaning” as a symbol of the
religious foundations of law, see Van Orden,
ante, at 11 (plurality opinion)—when they are posted in a
courthouse display of historical documents. The observer would no
more think himself “called upon to act” in conformance with the
Commandments than he would think himself called upon to think and
act like William Bradford because of the courthouse posting of the
Mayflower Compact—especially when he is told that the
exhibit consists of documents that contributed to American law and
government.
Footnote 11
The
significant number of cases involving Ten Commandments displays in
the last two years suggests the breadth of their appearance. See,
e.g., Books v. Elkhart County, 401
F. 3d 857, 858–859 (CA7 2005) (Ten Commandments included in a
display identical to the Foundations display); Mercier v.
Fraternal Order of Eagles, 395 F. 3d 693, 696 (CA7
2005) (Ten Commandments monument in city park since 1965);
Modrovich v. Allegheny County, 385 F. 3d
397, 399 (CA3 2004) (Ten Commandments plaque, donated in 1918, on
wall of Allegheny County Courthouse); Freethought Soc. of
Greater Philadelphia v. Chester County, 334
F. 3d 247, 249 (CA3 2003) (Ten Commandment plaque, donated in
1920, on wall of Chester County Courthouse); King v.
Richmond County, 331 F. 3d 1271, 1273–1274 (CA11
2003) (Ten Commandments depicted in county seal since
1872).
Footnote 12
Because there
are interpretational differences between faiths and within faiths
concerning the meaning and perhaps even the text of the
Commandments, Justice Stevens maintains that any display
of the text of the Ten Commandments is impermissible because it
“invariably places the [government] at the center of a serious
sectarian dispute.” Van Orden, ante, at 13
(dissenting opinion). I think not. The sectarian dispute regarding
text, if serious, is not widely known. I doubt that most religious
adherents are even aware that there are competing versions with
doctrinal consequences (I certainly was not). In any event, the
context of the display here could not conceivably cause the viewer
to believe that the government was taking sides in a doctrinal
controversy.
Footnote 13
Posted less
than a month after respondents filed suit, the second displays
included an excerpt from the Declaration of Independence, the
Preamble to the Kentucky Constitution, a page from the
Congressional Record declaring 1983 to be the Year of the Bible and
the proclamation of President Reagan stating the same, a
proclamation of President Lincoln designating April 30, 1863 as a
National Day of Prayer and Humiliation, an excerpt from Lincoln’s
“Reply to Loyal Colored People of Baltimore upon Presentation of a
Bible” stating that “[t]he Bible is the best gift God has ever
given to man,” and the Mayflower Compact. 96 F. Supp. 2d 679,
684 (ED Ky., 2000). The Counties erected the displays in accordance
with a resolution passed by their legislative bodies, authorizing
the County-Judge Executives “to read or post the Ten Commandments
as the precedent legal code upon which the civil and criminal codes
of the Commonwealth of Kentucky are founded,” and to display
alongside the Ten Commandments copies of the documents listed above
“without censorship because of any Christian or religious
references in these writings, documents, and historical records.”
Def. Exh. 1 in Memorandum in Support of Defendants’ Motion to
Dismiss in Civ. A. No. 99–507, p. 1 (ED Ky.) (hereinafter Def.
Exh. 1).
Footnote 14
Contrary to
the Court’s suggestion, see ante, at 24, n. 20, it is
clear that the resolutions were closely tied to the second
displays, but not to the third. Each of the documents included in
the second displays was authorized by the resolutions, and those
displays, consistent with the resolutions’ direction to “post the
Ten Commandments as the precedent legal code upon which the civil
and criminal codes of the Commonwealth of Kentucky are founded,”
Def. Exh. 1, consisted of a large copy of the Ten Commandments
alongside much smaller framed copies of other historical, religious
documents. The third displays, in contrast, included documents not
mentioned in the resolutions (the Magna Carta and a picture of Lady
Justice) and did not include documents authorized by the
resolutions (correspondence and proclamations of Abraham Lincoln
and the Resolution of Congress declaring 1983 to be the Year of the
Bible).
The
resolutions also provided that they were to be posted beside the
displays that they authorized. Def. Exh. 1, at 9. Yet
respondents have never suggested the resolutions were posted next
to the third displays, and the record before the Court indicates
that they were not. The photos included in the Appendix show that
the third displays included 10 frames—the nine historical documents
and the prefatory statement explaining the relevance of each of the
documents. See App. to Pet. for Cert. 177a (McCreary County), 178a
(Pulaski County).
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