McCreary County v. ACLU of Kentucky

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2005 United States Supreme Court case

McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005), was a case argued before the Supreme Court of the United States on March 2, 2005. At issue was whether the Court should continue to inquire into the purpose behind a religious display and whether evaluation of the government's claim of secular purpose for the religious displays may take evolution into account under an Establishment Clause of the First Amendment analysis.

In a suit brought by the American Civil Liberties Union of Kentucky, the United States Court of Appeals for the Sixth Circuit held that the displays—in this case, a Ten Commandments display at the McCreary County courthouse in Whitley City, Kentucky and a Ten Commandments display at the Pulaski County courthouse—were unconstitutional. The appeal from that decision, argued by Mathew Staver of Liberty Counsel , urged reformulation or abandonment of the "Lemon test" set forth in _Lemon v. Kurtzman _, which has been applied to religious displays on government property and to other Establishment Clause issues.

The Supreme Court ruled on June 27, 2005, in a 5–4 decision, that the display was unconstitutional. The same day, the Court handed down another 5–4 decision in _Van Orden v. Perry _ with the opposite outcome. The "swing vote " in both cases was Justice Stephen Breyer .

History

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After three Kentucky counties posted large and readily visible copies of the Ten Commandments in their courthouses, and a school district in a third county posted a similar display, the American Civil Liberties Union (ACLU) sued. In response to the suit, and before the district court responded, both counties adopted similar resolutions that clarified the purposes of the displays as acknowledging "the precedent legal code upon which the civil and criminal codes of ... Kentucky are founded." The district court, following the _Lemon v. Kurtzman _ test, entered a preliminary injunction against the newly modified exhibits, finding that there was no secular purpose behind the inherently religious displays.

After changing counsel, the counties revised the exhibits again. The new posting, entitled "The Foundations of American Law and Government Display", consisted of nine framed documents of equal size. One set out the Commandments explicitly identified as the "King James Version ", quoted them at greater length, and explained that they have profoundly influenced the formation of Western legal thought and the American nation. In addition to the Commandments, the counties added historical documents containing religious references as their sole common element. The additional documents included framed copies of the Magna Carta , the Declaration of Independence , the Bill of Rights , the lyrics of the Star Spangled Banner , the Mayflower Compact , the National Motto ("In God We Trust "), the Preamble to the Kentucky Constitution , and a picture of Lady Justice .

On the ACLU's motion, the district court included this third display in the preliminary injunction despite the counties' professed intent to show that the Commandments were part of the foundation of American Law and Government and to educate county citizens as to the documents. The court took proclaiming the Commandments' foundational value as a religious , rather than secular , purpose under _Stone v. Graham _ and found that the counties' asserted educational goals crumbled upon an examination of this case's history.

The Sixth Circuit Court of Appeals affirmed the decision, stressing that, under Stone, displaying the Commandments bespeaks a religious object unless the display is integrated with other material so as to carry "a secular message." The Sixth Circuit saw no integration because of a lack of a demonstrated analytical or historical connection between the Commandments and the other documents.

The county petitioned for a writ of _certiorari _, which was granted on October 12, 2004. Oral arguments were heard on March 2, 2005. Mathew D. Staver argued the cause for the county, Solicitor General Paul D. Clement appeared on behalf the Bush administration in support of the county, and David A. Friedman, then the general counsel of the Kentucky ACLU , argued for the ACLU.

Opinion of the court

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Justice David Souter wrote the opinion of the Court. First, the Court reiterated its previous holding in Stone v. Graham that the Commandments are "undeniably a sacred text in the Jewish and Christian faiths" and that their display in public classrooms "violated the First Amendment's bar against establishment of religion." Next, the Court noted that the Lemon test 's "purpose prong" was rarely dispositive. Nonetheless, it emphasized that that prong "serves an important function." Indeed, anytime the government "acts with the ostensible and predominant purpose of advancing religion," or "to favor one religion over another," that advancement violates the Establishment Clause.

Although the counties asked the Court to overrule the Lemon test and, necessarily, the inquiry into governmental purpose, the Court refused to do so. The Court noted that, in several areas of the law, an inquiry into the government's purpose is an important endeavor. The Court also stated that it was confident in the inquiry into purpose, because such inquiries had not yielded a finding of "a religious purpose dominant every time a case is filed."

As to a second issue, whether the Court should consider the evolutionary purpose or the most recent purpose, the Court held that it should consider the evolutionary purpose of the display. "But the world is not made brand new every morning, and the Counties are simply asking us to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government's actions and competent to learn what history has to show."

The Court, reviewing the lower court's ruling _de novo _, upheld the lower courts' rulings, noting that a pastor was present to testify to the certainty of the existence of God at the dedication of one of the displays, the modified displays contained "theistic and Christian references," and there was a "religious purpose" in the final modification.

Concurring opinion

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Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?

— [Justice](https://en.wikipedia.org/wiki/

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