2722 125 supreme court reporter 545 u.s. 844 · 2722 125 supreme court reporter 545 u.s. 844 545...

2722 125 SUPREME COURT REPORTER 545 U.S. 844

545 U.S. 844, 162 L.Ed.2d 729

MCCREARY COUNTY, KENTUCKY,et al., Petitioners,

v.

AMERICAN CIVIL LIBERTIESUNION OF KENTUCKY et

al.No. 03–1693.

Argued March 2, 2005.

Decided June 27, 2005.

Background: Civil liberties organizationsued counties claiming that posting of TenCommandments at courthouses violatedthe First Amendment. The District Court,96 F.Supp.2d 679, granted preliminary in-junction requiring removal of display. Af-ter displays were modified to include docu-ments from American history, organizationsought supplemental injunction. The Dis-trict Court, 145 F.Supp.2d 845, issued sup-plemental injunction, and counties appeal-ed. The United States Court of Appeals forthe Sixth Circuit, 354 F.3d 438, Clay, Cir-cuit Judge, affirmed. Counties’ petition forwrit of certiorari was granted.

Holdings: The Supreme Court, JusticeSouter, held that:

(1) a determination of counties’ purpose indisplaying the Ten Commandments atcounty courthouse was a sound basisfor ruling on complaints alleging thatthe display violated the EstablishmentClause;

(2) evolution of the display could be takeninto account when evaluating the coun-ties’ claim of a secular purpose for thedisplay;

(3) preliminary injunction preventingcounties from displaying a revised dis-play of the Ten Commandments thatincluded other historical documents incourthouse was adequately supportedby evidence that the counties’ purposewas to emphasize and celebrate the

Commandments’ religious message, inviolation of the First Amendment.

Affirmed.

Justice O’Connor, concurred and filedopinion.

Justice Scalia, with whom Chief JusticeRehnquist and Justice Thomas joined, andwith whom Justice Kennedy joined as toParts II and III, dissented and filed opin-ion.

1. Constitutional Law O1297When the government acts with the

ostensible and predominant purpose of ad-vancing religion, it violates that centralEstablishment Clause value of official reli-gious neutrality, there being no neutralitywhen the government’s ostensible object isto take sides. U.S.C.A. Const.Amend. 1.

2. Constitutional Law O1290Manifesting a purpose to favor one

faith over another, or adherence to religiongenerally, clashes with the understanding,reached after decades of religious war,that liberty and social stability demand areligious tolerance that respects the reli-gious views of all citizens. U.S.C.A. Const.Amend. 1.

3. Constitutional Law O1290By showing a purpose to favor reli-

gion, the government sends the message tononadherents that they are outsiders, notfull members of the political community,and an accompanying message to adher-ents that they are insiders, favored mem-bers. U.S.C.A. Const.Amend. 1.

4. Constitutional Law O1381 Counties O107

A determination of counties’ purposein displaying the Ten Commandments atcounty courthouse was a sound basis forruling on complaints brought by civilrights organization and others alleging

2723MCCREARY COUNTY v. AM. CIVIL LIBERTIES UNIONCite as 125 S.Ct. 2722 (2005)

545 U.S. 844

that the display violated the EstablishmentClause. U.S.C.A. Const.Amend. 1.

5. Constitutional Law O1050 Statutes O184

Examination of purpose is a staple ofstatutory interpretation that makes up thedaily fare of every appellate court in thecountry, and governmental purpose is akey element of a good deal of constitution-al doctrine.

6. Constitutional Law O1290Under Lemon, government action

must have ‘‘a secular purpose,’’ and, al-though a legislature’s stated reasons willgenerally get deference, the secular pur-pose required has to be genuine, not asham, and not merely secondary to a reli-gious objective. U.S.C.A. Const.Amend. 1.

7. Federal Courts O478On appeal from a preliminary injunc-

tion granted by the district court, the Su-preme Court reviews the district court’slegal rulings de novo and its ultimate con-clusion for abuse of discretion.

8. Constitutional Law O1381 Counties O107

Evaluation of the counties’ claim of asecular purpose for the ultimate display ofthe Ten Commandments and other histori-cal documents in courthouses could takethe evolution of the display into account,for purposes of action brought by civilrights organization and others allegingthat the display violated the EstablishmentClause of the First Amendment. U.S.C.A.Const.Amend. 1.

9. Civil Rights O1457(2)Preliminary injunction preventing

counties from displaying a revised displayof the Ten Commandments that included

other historical documents in courthousewas adequately supported by evidence thatthe counties’ purpose was to emphasizeand celebrate the Commandments’ reli-gious message, in violation of the FirstAmendment. U.S.C.A. Const.Amend. 1;42 U.S.C.A. § 1983.

S 844Syllabus *

After petitioners, two Kentucky Coun-ties, each posted large, readily visible cop-ies of the Ten Commandments in theircourthouses, respondents, the AmericanCivil Liberties Union (ACLU) et al., suedunder 42 U.S.C. § 1983 to enjoin the dis-plays on the ground that they violated theFirst Amendment’s Establishment Clause.The Counties then adopted nearly identicalresolutions calling for a more extensiveexhibit meant to show that the Command-ments are Kentucky’s ‘‘precedent legalcode.’’ The resolutions noted severalgrounds for taking that position, includingthe state legislature’s acknowledgment ofChrist as the ‘‘Prince of Ethics.’’ Thedisplays around the Commandments weremodified to include eight smaller, historicaldocuments containing religious referencesas their sole common element, e.g., theDeclaration of Independence’s ‘‘endowedby their Creator’’ passage. Entering apreliminary injunction, the District Courtfollowed the Lemon v. Kurtzman, 403 U.S.602, 91 S.Ct. 2105, test to find, inter alia,that the original display lacked any secularpurpose because the Commandments are adistinctly religious document, and that thesecond version lacked such a purpose be-cause the Counties narrowly tailored theirselection of foundational documents tothose specifically referring to Christianity.After changing counsel, the Counties re-vised the exhibits again. No new resolu-

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.


tion authorized the new exhibits, nor didthe Counties repeal the resolutions thatpreceded the second one. The new post-ing, entitled ‘‘The Foundations of Ameri-can Law and Government Display,’’ con-sists of nine framed documents of equalsize. One sets out the Commandmentsexplicitly identified as the ‘‘King JamesVersion,’’ quotes them at greater length,and explains that they have profoundlyinfluenced the formation of Western legalthought and this Nation. With the Com-mandments are framed copies of, e.g., theStar Spangled Banner’s lyrics and theDeclaration of Independence, accompaniedby statements about their historical andlegal significance. On the ACLU’s motion,the District Court included this third dis-play in the injunction despite the Counties’professed intent to show that the Com-mandments were part of the foundation ofAmerican Law and Government and toeducate county citizens as to the docu-ments. The court took proclaiming theCommandments’ foundational value as areligious, S 845rather than secular, purposeunder Stone v. Graham, 449 U.S. 39, 101S.Ct. 192, 66 L.Ed.2d 199, and found thatthe Counties’ asserted educational goalscrumbled upon an examination of this liti-gation’s history. Affirming, the Sixth Cir-cuit stressed that, under Stone, displayingthe Commandments bespeaks a religiousobject unless they are integrated with asecular message. The court saw no inte-gration here because of a lack of a demon-strated analytical or historical connectionbetween the Commandments and the otherdocuments.

Held:

1. A determination of the Counties’purpose is a sound basis for ruling on theEstablishment Clause complaints. TheCounties’ objective may be dispositive ofthe constitutional enquiry. Pp. 2732–2737.

(a) Lemon’s ‘‘secular legislative pur-pose’’ enquiry, 403 U.S., at 612, 91 S.Ct.2105, has been a common, albeit seldomdispositive, element of this Court’s cases,Wallace v. Jaffree, 472 U.S. 38, 75, 105S.Ct. 2479, 86 L.Ed.2d 29. When the gov-ernment acts with the ostensible and pre-dominant purpose of advancing religion, itviolates the central Establishment Clausevalue of official religious neutrality, therebeing no neutrality when the government’sostensible object is to take sides. Corpo-ration of Presiding Bishop of Church ofJesus Christ of Latter—day Saints v.Amos, 483 U.S. 327, 335, 107 S.Ct. 2862, 97L.Ed.2d 273. A purpose to favor one faithover another, or adherence to religion gen-erally, clashes with the ‘‘understanding TTT

that liberty and social stability demand aTTT tolerance that respects the religiousviews of all citizens.’’ Zelman v. Sim-mons–Harris, 536 U.S. 639, 718, 122 S.Ct.2460, 153 L.Ed.2d 604. Pp. 2732–2734.

(b) The Court declines the Counties’request to abandon Lemon’s purpose test.Their assertions that true ‘‘purpose’’ is un-knowable, and its search merely an excusefor courts to act selectively and unpredict-ably in picking out evidence of subjectiveintent, are as seismic as they are uncon-vincing. Examination of purpose is a sta-ple of statutory interpretation for everyAmerican appellate court, e.g., GeneralDynamics Land Systems, Inc. v. Cline,540 U.S. 581, 600, 124 S.Ct. 1236, 157L.Ed.2d 1094, and governmental purposeis a key element of a good deal of constitu-tional doctrine, e.g., Washington v. Davis,426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d597. Scrutinizing purpose makes practicalsense in Establishment Clause analysis,where an understanding of official objec-tive emerges from readily discoverable factset forth in a statute’s text, legislativehistory, and implementation or comparableofficial act. Wallace v. Jaffree, supra, at


545 U.S. 847

73–74, 105 S.Ct. 2479. Nor is there anyindication that the purpose enquiry isrigged in practice to finding a religiouspurpose dominant every time a case isfiled. Pp. 2734–2735.

(c) The Court also avoids the Coun-ties’ alternative tack of trivializing the pur-pose enquiry. They would read theCourt’s cases as if the enquiry were sonaive that any transparent claim to secu-larity would S 846satisfy it, and they wouldcut context out of the enquiry, to the pointof ignoring history, no matter what bear-ing it actually had on the significance ofcurrent circumstances. There is no prece-dent for these arguments, or reason sup-porting them. Pp. 2735–2737.

(1) A legislature’s stated reasons willgenerally warrant the deference owed inthe first instance to such official claims,but Lemon requires the secular purpose tobe genuine, not a sham, and not merelysecondary to a religious objective, see, e.g.,Santa Fe Independent School Dist. v. Doe,530 U.S. 290, 308, 120 S.Ct. 2266, 147L.Ed.2d 295. In those unusual caseswhere the claim was an apparent sham, orthe secular purpose secondary, the unsur-prising results have been findings of noadequate secular object, as against a pre-dominantly religious one. See, e.g., Stone,supra, at 41, 101 S.Ct. 192. Pp. 2735–2736.

(2) The Counties’ argument that pur-pose in a case like this should be inferredonly from the latest in a series of govern-mental actions, however close they may allbe in time and subject, bucks commonsense. Reasonable observers have reason-able memories, and the Court’s precedentssensibly forbid an observer ‘‘to turn a blindeye to the context in which [the] policyarose.’’ Santa Fe, supra, at 315, 120 S.Ct.2266. Pp. 2736–2737.

2. Evaluation of the Counties’ claimof secular purpose for the ultimate dis-

plays may take their evolution into ac-count. The development of the presenta-tion should be considered in determiningits purpose. Pp. 2737–2741.

(a) Stone is the Court’s initial bench-mark as its only case dealing with theconstitutionality of displaying the Com-mandments. It recognized that the Com-mandments are an ‘‘instrument of religion’’and that, at least on the facts before theCourt, their text’s display could presump-tively be understood as meant to advancereligion: although state law specifically re-quired their posting in classrooms, theirisolated exhibition did not allow even foran argument that secular education ex-plained their being there. 449 U.S., at 41,n. 3, 101 S.Ct. 192. But Stone did notpurport to decide the constitutionality ofevery possible way the government mightset out the Commandments, and under theEstablishment Clause detail is key, Countyof Allegheny v. American Civil LibertiesUnion, Greater Pittsburgh Chapter, 492U.S. 573, 595, 109 S.Ct. 3086, 106 L.Ed.2d472. Hence, the Court looks to the recordshowing the progression leading up to theCommandments’ third display, beginningwith the first. Pp. 2737–2738.

(b) There are two obvious similaritiesbetween the display Stone rejected and thefirst one here: both set out the Command-ments’ text as distinct from any tradition-ally symbolic representation like blanktablets, and each stood alone, not as partof an arguably secular display. Stonestressed the significance of integrating theCommandments into S 847a secular schemeto forestall the broadcast of an otherwiseclearly religious message, 449 U.S., at 42,101 S.Ct. 192, and for good reason, theCommandments being a central point ofreference in the religious and moral histo-ry of Jews and Christians. They proclaimthe existence of a monotheistic god (noother gods), regulate details of religious


obligation (no graven images, sabbathbreaking, or vain oath swearing), and un-mistakably rest even the universally ac-cepted prohibitions (as against murder,theft, etc.) on the sanction of the divinityproclaimed at the text’s beginning. Dis-playing that text is thus different fromsymbolic representation, like tablets with10 roman numerals, which could be seen asalluding to a general notion of law, not asectarian conception of faith. Where thetext is set out, the insistence of the reli-gious message is hard to avoid in theabsence of a context plausibly suggesting amessage going beyond an excuse to pro-mote the religious point of view. The dis-play in Stone had no such context, and theCounties’ solo exhibit here did nothingmore to counter the sectarian implicationthan the Stone postings. The reasonableobserver could only think that the Coun-ties meant to emphasize and celebrate theCommandments’ religious message. Pp.2738–2739.

(c) The Counties’ second display, un-like the first, did not hang the Com-mandments in isolation, but included thestatement of the government’s purposeexpressly set out in the county resolu-tions, and underscored it by juxtaposingthe Commandments to other documentswhose references to God were highlight-ed as their sole common element. Thedisplay’s unstinting focus was on religiouspassages, showing that the Counties post-ed the Commandments precisely becauseof their sectarian content. That demon-stration of the government’s objectivewas enhanced by serial religious refer-ences and the accompanying resolutions’claim about the embodiment of ethics inChrist. Together, the display and resolu-tion presented an indisputable, and undis-puted, showing of an impermissible pur-pose. P. 2739.

(d) The lower courts’ conclusion thatno legitimizing secular purpose prompted

the Counties’ third display, the ‘‘Founda-tions of American Law and Government’’exhibit, is amply justified. That displayplaced the Commandments in the companyof other documents the Counties deemedespecially significant in the historical foun-dation of American government. In tryingto persuade the District Court to lift thepreliminary injunction, the Counties citedseveral new purposes for the third version,including a desire to educate county citi-zens as to the significance of the docu-ments displayed. The Counties’ claims,however, persuaded neither that court,which was intimately familiar with this liti-gation’s details, nor the Sixth Circuit.Where both lower courts were unable todiscern an arguably valid secular purpose,this Court normally should hesitate to findone. Edwards v. Aguillard, 482 U.S.S 848578, 594, 107 S.Ct. 2573, 96 L.Ed.2d 510.The Counties’ new statements of purposewere presented only as a litigating posi-tion, there being no further authorizingresolutions by the Counties’ governingboards. And although repeal of the earliercounty authorizations would not haveerased them from the record of evidencebearing on current purpose, the extraordi-nary resolutions for the second displayspassed just months earlier were not re-pealed or otherwise repudiated. Indeed,the sectarian spirit of the resolutions foundenhanced expression in the third display,which quoted more of the Commandments’purely religious language than the firsttwo displays had done. No reasonableobserver, therefore, could accept the claimthat the Counties had cast off the objectiveso unmistakable in the earlier displays.Nor did the selection of posted materialsuggest a clear theme that might prevailover evidence of the continuing religiousobject. For example, it is at least odd in acollection of documents said to be ‘‘founda-tional’’ to include a patriotic anthem, but to


545 U.S. 850

omit the Fourteenth Amendment, the mostsignificant structural provision adoptedsince the original framing. An observerwould probably suspect the Counties ofreaching for any way to keep a religiousdocument on the walls of courthouses con-stitutionally required to embody religiousneutrality. Pp. 2739–2741.

(e) In holding that the preliminary in-junction was adequately supported by evi-dence that the Counties’ purpose had notchanged at the third stage, the Court doesnot decide that the Counties’ past actionsforever taint any effort on their part todeal with the subject matter. The Courtholds only that purpose is to be takenseriously under the Establishment Clauseand is to be understood in light of context.District courts are fully capable of adjust-ing preliminary relief to take account ofgenuine changes in constitutionally signifi-cant conditions. Nor does the Court holdthat a sacred text can never be integratedconstitutionally into a governmental dis-play on law or history. Its own courtroomfrieze depicts Moses holding tablets exhib-iting a portion of the secularly phrasedCommandments; in the company of 17other lawgivers, most of them secular fig-ures, there is no risk that Moses wouldstrike an observer as evidence that theNational Government was violating reli-gious neutrality. P. 2741.

354 F.3d 438, affirmed.

SOUTER, J., delivered the opinion ofthe Court, in which STEVENS,O’CONNOR, GINSBURG, and BREYER,JJ., joined. O’CONNOR, J., filed aconcurring opinion, post, p. 2746.SCALIA, J., filed a dissenting opinion, inwhich REHNQUIST, C.J., and THOMAS,

J., joined, and in which KENNEDY, J.,joined as to Parts II and III, post, p. 2748.

Paul D. Clement, Washington, D.C., forUnited States as amicus curiae, by specialleave of the Court, supporting the petition-ers.

Matthew D. Staver, Counsel of Record,Erik W. Stanley, Anita L. Staver, Rena M.Lindevaldsen, Bruce W. Green, Mary E.McAlister, Lindsey F. Martin, Johnnie L.Turner, Liberty Counsel, Longwood, FL,Attorneys for Petitioners.

David A. Friedman, Counsel of Record,Lili R. Lutgens, American Civil LibertiesUnion of Kentucky, Louisville, KY, StevenR. Shapiro, ACLU Foundation, New York,NY, Of counsel: Kenneth J. Falk, LegalDirector, Indiana Civil Liberties Union,Indianapolis, IN, Brief for Respondents.

For U.S. Supreme Court briefs, see:2004 WL 2851009 (Pet.Brief)2005 WL 176670 (Resp.Brief)2005 WL 413154 (Reply.Brief)

Justice SOUTER delivered the opinionof the Court.

S 850Executives of two counties posted aversion of the Ten Commandments on thewalls of their courthouses. After suitswere filed charging violations of the Estab-lishment Clause, the legislative body ofeach county adopted a resolution callingfor a more extensive exhibit meant to showthat the Commandments are Kentucky’s‘‘precedent legal code,’’ Def. Exh. 1 inMemorandum in Support of Defendants’Motion to Dismiss in Civ. Action No. 99–507, p. 1 (ED Ky.) (hereinafter Def. Exh.1). The result in each instance was amodified display of the Commandmentssurrounded by texts containing religiousreferences as their sole common element.After changing counsel, the counties re-vised the exhibits again by eliminating


some documents, expanding the text setout in another, and adding some new ones.

The issues are whether a determinationof the counties’ purpose is a sound basisfor ruling on the Establishment Clausecomplaints, and whether evaluation of thecounties’ claim of secular purpose for theultimate displays may take their evolutioninto account. We hold that the counties’manifest objective may be dispositive ofthe constitutional S 851enquiry, and that thedevelopment of the presentation should beconsidered when determining its purpose.

I

In the summer of 1999, petitionersMcCreary County and Pulaski County,Kentucky (hereinafter Counties), put up intheir respective courthouses large, gold-framed copies of an abridged text of theKing James version of the Ten Command-ments, including a citation to the Book ofExodus.1 In McCreary County, the place-ment of the Commandments responded toan order of the county legislative bodyrequiring ‘‘the display [to] be posted in ‘avery high traffic area’ of the courthouse.’’96 F.Supp.2d 679, 684 (E.D.Ky.2000). InPulaski County, amidst reported contro-versy over the propriety of the display, theCommandments were hung in a ceremonypresided over by the county Judge–Execu-tive, who called them ‘‘good rules to liveby’’ and who recounted the story of anastronaut who became convinced ‘‘theremust be a divine God’’ after viewing theEarth from the moon. Dodson, Common-wealth Journal, July 25, 1999, p. A1, col. 2,in Memorandum in Support of Plaintiffs’

Motion for Preliminary Injunction in Civ.Action No. 99–509 (ED Ky.) (internal quo-tation marks omitted). The Judge–Execu-tive was accompanied by the pastor of hischurch, who called the Commandments ‘‘acreed of ethics’’ and told the press afterthe ceremony that displaying the Com-mandments was ‘‘one of the greatestthings the judge could have done to closeout the millennium.’’ Id., at A2, col. 3(internal quotation marks omitted). Inboth Counties, this was the version of theCommandments posted:

‘‘Thou shalt have no other gods beforeme.

S 852‘‘Thou shalt not make unto thee anygraven images.

‘‘Thou shalt not take the name of theLord thy God in vain.

‘‘Remember the sabbath day, to keep itholy.

‘‘Honor thy father and thy mother.

‘‘Thou shalt not kill.

‘‘Thou shalt not commit adultery.

‘‘Thou shalt not steal.

‘‘Thou shalt not bear false witness.

‘‘Thou shalt not covet.

‘‘Exodus 20:3–17.’’ 2 Def. Exh. 9 inMemorandum in Support of Defendants’Motion to Dismiss in Civ. A. No. 99–507(ED Ky.) (hereinafter Def. Exh. 9).

In each County, the hallway display was‘‘readily visible to TTT county citizens whouse the courthouse to conduct their civicbusiness, to obtain or renew driver’s li-censes and permits, to register cars, to paylocal taxes, and to register to vote.’’ 96

1. We do not consider here a display of theTen Commandments in schoolrooms in Har-lan County, Kentucky, that was litigated inconsolidated proceedings in the District Courtand Court of Appeals. That display is thesubject of a separate petition to this Court.

2. This text comes from a record exhibit show-ing the Pulaski County Commandments thatwere part of the County’s first and seconddisplays. The District Court found that thedisplays in each County were functionallyidentical. 96 F.Supp.2d 679, 682, n. 2(E.D.Ky.2000); 96 F.Supp.2d 691, 693, n. 2(E.D.Ky.2000).


545 U.S. 854

F.Supp.2d, at 684; American Civil Liber-ties Union of Kentucky v. Pulaski County,96 F.Supp.2d 691, 695 (E.D.Ky.2000).

In November 1999, respondents Ameri-can Civil Liberties Union of Kentucky etal. sued the Counties in Federal DistrictCourt under Rev. Stat. § 1979, 42 U.S.C.§ 1983, and sought a preliminary injunc-tion against maintaining the displays,which the ACLU charged were violationsof the prohibition of religious establish-ment included in the First Amendment ofthe Constitution.3 Within a month, andbeSfore853 the District Court had respondedto the request for injunction, the legisla-tive body of each County authorized asecond, expanded display, by nearly identi-cal resolutions reciting that the Ten Com-mandments are ‘‘the precedent legal codeupon which the civil and criminal codes ofTTT Kentucky are founded,’’ and statingseveral grounds for taking that position:that ‘‘the Ten Commandments are codifiedin Kentucky’s civil and criminal laws’’;that the Kentucky House of Representa-tives had in 1993 ‘‘voted unanimously TTT

to adjourn TTT ‘in remembrance and honorof Jesus Christ, the Prince of Ethics’ ’’;that the ‘‘County Judge and TTT magis-trates agree with the arguments set out byJudge [Roy] Moore’’ in defense of his ‘‘dis-play [of] the Ten Commandments in hiscourtroom’’; and that the ‘‘Founding Fa-

ther[s] [had an] explicit understanding ofthe duty of elected officials to publiclyacknowledge God as the source of Amer-ica’s strength and direction.’’ Def. Exh. 1,at 1–3, 6.

As directed by the resolutions, theCounties expanded the displays of the TenCommandments in their locations, presum-ably along with copies of the resolution,which instructed that it, too, be posted, id.,at 9. In addition to the first display’s largeframed copy of the edited King Jamesversion of the Commandments,4 the secondincluded eight other documents in smallerframes, each either having a religiousS 854theme or excerpted to highlight a reli-gious element. The documents were the‘‘endowed by their Creator’’ passage fromthe Declaration of Independence; thePreamble to the Constitution of Kentucky;the national motto, ‘‘In God We Trust’’; apage from the Congressional Record ofFebruary 2, 1983, proclaiming the Year ofthe Bible and including a statement of theTen Commandments; a proclamation byPresident Abraham Lincoln designatingApril 30, 1863, a National Day of Prayerand Humiliation; an excerpt from Presi-dent Lincoln’s ‘‘Reply to Loyal ColoredPeople of Baltimore upon Presentation of aBible,’’ reading that ‘‘[t]he Bible is the bestgift God has ever given to man’’; a procla-mation by President Reagan marking 1983the Year of the Bible; and the Mayflower

3. The First Amendment provides that ‘‘Con-gress shall make no law respecting an estab-lishment of religion, or prohibiting the freeexercise thereof TTT .’’ This prohibition ofestablishment applies to ‘‘the States and theirpolitical subdivisions’’ through the FourteenthAmendment. Santa Fe Independent SchoolDist. v. Doe, 530 U.S. 290, 301, 120 S.Ct.2266, 147 L.Ed.2d 295 (2000)

4. The District Court noted that there wassome confusion as to whether the Ten Com-mandments hung independently in the seconddisplay, or were incorporated into the copy ofthe page from the Congressional Record de-

claring 1983 ‘‘the Year of the Bible.’’ 96F.Supp.2d, at 684, and n. 4; 96 F.Supp.2d, at695–696, and n. 4. The exhibits in the recorddepict the Commandments hanging as a sepa-rate item, Def. Exh. 9, and that is more con-sistent with the Counties’ description of thesecond display in this Court. ‘‘[After erectingthe first display] Petitioners posted additionaldonated documents TTT. This display consist-ed of the Ten Commandments along withother historical documents.’’ Brief for Peti-tioners 2. Like the District Court, we find ouranalysis applies equally to either format.


Compact. 96 F.Supp.2d, at 684; 96F.Supp.2d, at 695–696.

After argument, the District Court en-tered a preliminary injunction on May 5,2000, ordering that the ‘‘display TTT beremoved from [each] County CourthouseIMMEDIATELY’’ and that no county offi-cial ‘‘erect or cause to be erected similardisplays.’’ 96 F.Supp.2d, at 691; 96F.Supp.2d, at 702–703. The court’s analy-sis of the situation followed the three-partformulation first stated in Lemon v. Kurtz-man, 403 U.S. 602, 91 S.Ct. 2105, 29L.Ed.2d 745 (1971). As to governmentalpurpose, it concluded that the original dis-play ‘‘lack[ed] any secular purpose’’ be-cause the Commandments ‘‘are a distinctlyreligious document, believed by manyChristians and Jews to be the direct andrevealed word of God.’’ 96 F.Supp.2d, at686; 96 F.Supp.2d, at 698. Although theCounties had maintained that the originaldisplay was meant to be educational, ‘‘[t]henarrow scope of the display—a single reli-gious text unaccompanied by any interpre-tation explaining its role as a foundationaldocument—can hardly be said to presentmeaningfully the story of this country’sreligious traditions.’’ 96 F.Supp.2d, at686–687; 96 F.Supp.2d, at 698. The courtfound that the second version also ‘‘clearlylack[ed] a secular purpose’’ because the‘‘Count[ies] narrowly tailored [their] selec-tion of S 855foundational documents to incor-porate only those with specific referencesto Christianity.’’ 5 96 F.Supp.2d, at 687;96 F.Supp.2d, at 699.

The Counties filed a notice of appealfrom the preliminary injunction but volun-tarily dismissed it after hiring new law-yers. They then installed another displayin each courthouse, the third within a year.

No new resolution authorized this one, nordid the Counties repeal the resolutionsthat preceded the second. The postingconsists of nine framed documents of equalsize, one of them setting out the Ten Com-mandments explicitly identified as the‘‘King James Version’’ at Exodus 20:3–17,145 F.Supp.2d 845, 847 (E.D.Ky.2001), andquoted at greater length than before:

‘‘Thou shalt have no other gods beforeme.

‘‘Thou shalt not make unto thee anygraven image, or any likeness of anything that is in heaven above, or that isin the earth beneath, or that is in thewater underneath the earth: Thou shaltnot bow down thyself to them, nor servethem: for I the LORD thy God am ajealous God, visiting the iniquity of thefathers upon the children unto the thirdand fourth generation of them that hateme.

‘‘Thou shalt not take the name of theLORD thy God in vain: for the LORDwill not hold him guiltless that takethhis name in vain.

‘‘Remember the sabbath day, to keep itholy.

‘‘Honour thy father and thy mother:that thy days may be long upon the landwhich the LORD thy God giveth thee.

‘‘Thou shalt not kill.

S 856‘‘Thou shalt not commit adultery.

‘‘Thou shalt not steal.

‘‘Thou shalt not bear false witnessagainst thy neighbour.

‘‘Thou shalt not covet thy neighbour’shouse, thou shalt not covet th[y] neigh-bor’s wife, nor his manservant, nor hismaidservant, nor his ox, nor his ass, nor

5. The court also found that the display hadthe effect of endorsing religion: ‘‘Removedfrom their historical context and placed withother documents with which the only com-

mon link is religion, the documents have theundeniable effect of endorsing religion.’’ 96F.Supp.2d, at 688; 96 F.Supp.2d, at 699–700.


545 U.S. 857

anything that is th[y] neighbour’s.’’App. to Pet. for Cert. 189a.

Assembled with the Commandments areframed copies of the Magna Carta, theDeclaration of Independence, the Bill ofRights, the lyrics of the Star SpangledBanner, the Mayflower Compact, the Na-tional Motto, the Preamble to the Ken-tucky Constitution, and a picture of LadyJustice. The collection is entitled ‘‘TheFoundations of American Law and Gov-ernment Display’’ and each documentcomes with a statement about its historicaland legal significance. The comment onthe Ten Commandments reads:

‘‘The Ten Commandments have pro-foundly influenced the formation ofWestern legal thought and the formationof our country. That influence is clearlyseen in the Declaration of Independence,which declared that ‘We hold thesetruths to be self-evident, that all menare created equal, that they are en-dowed by their Creator with certain un-alienable Rights, that among these areLife, Liberty, and the pursuit of Happi-ness.’ The Ten Commandments providethe moral background of the Declarationof Independence and the foundation ofour legal tradition.’’ Id., at 180a.

The ACLU moved to supplement thepreliminary injunction to enjoin the Coun-ties’ third display,6 and the Counties re-sponded with several explanations for thenew version, inScluding857 desires ‘‘to dem-onstrate that the Ten Commandmentswere part of the foundation of American

Law and Government’’ and ‘‘to educate thecitizens of the county regarding some ofthe documents that played a significantrole in the foundation of our system of lawand government.’’ 145 F.Supp.2d, at 848(internal quotation marks omitted). Thecourt, however, took the objective of pro-claiming the Commandments’ foundationalvalue as ‘‘a religious, rather than secular,purpose’’ under Stone v. Graham, 449 U.S.39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980)(per curiam), 145 F.Supp.2d, at 849, andfound that the assertion that the Counties’broader educational goals are secular‘‘crumble[s] TTT upon an examination ofthe history of this litigation,’’ ibid. Inlight of the Counties’ decision to post theCommandments by themselves in the firstinstance, contrary to Stone, and later to‘‘accentuat[e]’’ the religious objective bysurrounding the Commandments with‘‘specific references to Christianity,’’ theDistrict Court understood the Counties’‘‘clear’’ purpose as being to post the Com-mandments, not to educate.7 145F.Supp.2d, at 849–850 (internal quotationmarks omitted).

As requested, the trial court supple-mented the injunction, and a divided pan-el of the Court of Appeals for the SixthCircuit affirmed. The Circuit majoritystressed that under Stone, displaying theCommandments bespeaks a religious ob-ject unless they are integrated with othermaterial so as to carry ‘‘a secular mes-sage,’’ 354 F.3d 438, 449 (2003). Themajority judges saw no integration herebecause of a ‘‘lack of a demonstrated an-

6. Before the District Court issued the modi-fied injunction, the Counties removed the la-bel of ‘‘King James Version’’ and the citationto Exodus. 145 F.Supp.2d 845, 847 (E.D.Ky.2001).

7. The court also found that the effect of thethird display was to endorse religion becausethe ‘‘reasonable observer will see one reli-gious code placed alongside eight political or

patriotic documents, and will understand thatthe counties promote that one religious codeas being on a par with our nation’s mostcherished secular symbols and documents’’and because the ‘‘reasonable observer [wouldknow] something of the controversy sur-rounding these displays, which has focusedon only one of the nine framed documents:the Ten Commandments.’’ Id., at 851, 852.


alytical or historical connection[beStween858 the Commandments and] theother documents.’’ Id., at 451. Theynoted in particular that the Counties of-fered no support for their claim that theTen Commandments ‘‘provide[d] the mor-al backdrop’’ to the Declaration of Inde-pendence or otherwise ‘‘profoundly influ-enced’’ it. Ibid. (internal quotationmarks omitted). The majority found thatthe Counties’ purpose was religious, noteducational, given the nature of the Com-mandments as ‘‘an active symbol of reli-gion [stating] ‘the religious duties of be-lievers.’ ’’ Id., at 455. The judges in themajority understood the identical displaysto emphasize ‘‘a single religious influence,with no mention of any other religious orsecular influences,’’ id., at 454, and theytook the very history of the litigation asevidence of the Counties’ religious objec-tive, id., at 457.

Judge Ryan dissented on the basis ofwide recognition that religion, and the TenCommandments in particular, have playeda foundational part in the evolution ofAmerican law and government; he saw noreason to gainsay the Counties’ claim ofsecular purposes. Id., at 472–473. Thedissent denied that the prior displaysshould have any bearing on the constitu-tionality of the current one: a ‘‘history ofunconstitutional displays can[not] be usedas a sword to strike down an otherwiseconstitutional display.’’ 8 Id., at 478.

We granted certiorari, 543 U.S. 924, 125S.Ct. 310, 160 L.Ed.2d 221 (2004), and nowaffirm.

S 859II

Twenty-five years ago in a case prompt-ed by posting the Ten Commandments inKentucky’s public schools, this Court rec-ognized that the Commandments ‘‘are un-deniably a sacred text in the Jewish andChristian faiths’’ and held that their dis-play in public classrooms violated the FirstAmendment’s bar against establishment ofreligion. Stone, 449 U.S., at 41, 101 S.Ct.192. Stone found a predominantly reli-gious purpose in the government’s postingof the Commandments, given their promi-nence as ‘‘ ‘an instrument of religion,’ ’’ id.,at 41, n. 3, 101 S.Ct. 192 (quoting SchoolDist. of Abington Township v. Schempp,374 U.S. 203, 224, 83 S.Ct. 1560, 10L.Ed.2d 844 (1963)). The Counties ask fora different approach here by arguing thatofficial purpose is unknowable and thesearch for it inherently vain. In the alter-native, the Counties would avoid the Dis-trict Court’s conclusion by having us limitthe scope of the purpose enquiry so se-verely that any trivial rationalization wouldsuffice, under a standard oblivious to thehistory of religious government action likethe progression of exhibits in this case.

A

Ever since Lemon v. Kurtzman summa-rized the three familiar considerations forevaluating Establishment Clause claims,looking to whether government action has‘‘a secular legislative purpose’’ has been acommon, albeit seldom dispositive, element

8. The Sixth Circuit did not decide whether thedisplay had the impermissible effect of ad-vancing religion because one judge, havingfound the display motivated by a religiouspurpose, did not reach that issue. 354 F.3d,at 462 (Gibbons, J., concurring). The otherjudge in the majority concluded that a reason-able observer would find that the display hadthe effect of endorsing religion given the lackof analytical connection between the Com-

mandments and the other documents in thedisplay, the courthouse location of the dis-play, and the history of the displays. Id., at458–459. The dissent found no effect of en-dorsement because it concluded that a rea-sonable observer would only see that theCounty had merely acknowledged the founda-tional role of the Ten Commandments ratherthan endorsed their religious content. Id., at479–480.


545 U.S. 861

of our cases. 403 U.S., at 612, 91 S.Ct.2105. Though we have found governmentaction motivated by an illegitimate purposeonly four times since Lemon,9 and ‘‘thesecular purpose requirement alone mayrarely be determinative TTT, it neverthe-less serves an important function.’’10 Wal-lace v. S 860Jaffree, 472 U.S. 38, 75, 105 S.Ct.2479, 86 L.Ed.2d 29 (1985) (O’CONNOR,J., concurring in judgment).

[1–3] The touchstone for our analysisis the principle that the ‘‘First Amendmentmandates governmental neutrality be-tween religion and religion, and betweenreligion and nonreligion.’’ Epperson v.Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266,21 L.Ed.2d 228 (1968); Everson v. Boardof Ed. of Ewing, 330 U.S. 1, 15–16, 67S.Ct. 504, 91 L.Ed. 711 (1947); Wallace,supra, at 53, 105 S.Ct. 2479. When thegovernment acts with the ostensible andpredominant purpose of advancing reli-gion, it violates that central EstablishmentClause value of official religious neutrality,there being no neutrality when the govern-ment’s ostensible object is to take sides.Corporation of Presiding Bishop ofChurch of Jesus Christ of Latter—daySaints v. Amos, 483 U.S. 327, 335, 107S.Ct. 2862, 97 L.Ed.2d 273 (1987) (‘‘Lem-on’s ‘purpose’ requirement aims at pre-venting [government] from abandoningneutrality and acting with the intent ofpromoting a particular point of view inreligious matters’’). Manifesting a pur-pose to favor one faith over another, oradherence to religion generally, clashes

with the ‘‘understanding, reached TTT afterdecades of religious war, that liberty andsocial stability demand a religious toler-ance that respects the religious views of allcitizens TTTT’’ Zelman v. Simmons–Har-ris, 536 U.S. 639, 718, 122 S.Ct. 2460, 153L.Ed.2d 604 (2002) (BREYER, J., dissent-ing). By showing a purpose to favor reli-gion, the government ‘‘sends the TTT mes-sage to TTT nonadherents ‘that they areoutsiders, not full members of the politicalcommunity, and an accompanying messageto adherents that they are insiders, fa-vored members TTTT’ ’’ Santa Fe Indepen-dent School Dist. v. Doe, 530 U.S. 290,309–310, 120 S.Ct. 2266, 147 L.Ed.2d 295(2000) (quoting Lynch v. Donnelly, 465U.S. 668, 688, 104 S.Ct. 1355, 79 L.Ed.2d604 (1984) (O’CONNOR, J., concurring)).

Indeed, the purpose apparent from gov-ernment action can have an impact moresignificant than the result expresslyS 861decreed: when the government main-tains Sunday closing laws, it advances reli-gion only minimally because many workingpeople would take the day as one of restregardless, but if the government justifiedits decision with a stated desire for allAmericans to honor Christ, the divisivethrust of the official action would be ines-capable. This is the teaching of McGowanv. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6L.Ed.2d 393 (1961), which upheld Sundayclosing statutes on practical, seculargrounds after finding that the governmenthad forsaken the religious purposes behind

9. Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct.192, 66 L.Ed.2d 199 (1980) (per curiam);Wallace v. Jaffree, 472 U.S. 38, 56–61, 105S.Ct. 2479, 86 L.Ed.2d 29 (1985); Edwards v.Aguillard, 482 U.S. 578, 586–593, 107 S.Ct.2573, 96 L.Ed.2d 510 (1987); Santa Fe, 530U.S., at 308–309, 120 S.Ct. 2266.

10. At least since Everson v. Board of Ed. ofEwing, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711

(1947), it has been clear that EstablishmentClause doctrine lacks the comfort of categori-cal absolutes. In special instances we havefound good reason to hold governmental ac-tion legitimate even where its manifest pur-pose was presumably religious. See, e.g.,Marsh v. Chambers, 463 U.S. 783, 103 S.Ct.3330, 77 L.Ed.2d 1019 (1983) (upholding leg-islative prayer despite its religious nature).No such reasons present themselves here.


centuries-old predecessor laws. Id., at449–451, 81 S.Ct. 1101.

B

[4] Despite the intuitive importance ofofficial purpose to the realization of Estab-lishment Clause values, the Counties askus to abandon Lemon’s purpose test, or atleast to truncate any enquiry into purposehere. Their first argument is that thevery consideration of purpose is deceptive:according to them, true ‘‘purpose’’ is un-knowable, and its search merely an excusefor courts to act selectively and unpredict-ably in picking out evidence of subjectiveintent. The assertions are as seismic asthey are unconvincing.

[5] Examination of purpose is a stapleof statutory interpretation that makes upthe daily fare of every appellate court inthe country, e.g., General Dynamics LandSystems, Inc. v. Cline, 540 U.S. 581, 600,124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004)(interpreting statute in light of its ‘‘text,structure, purpose, and history’’), and gov-ernmental purpose is a key element of agood deal of constitutional doctrine, e.g.,Washington v. Davis, 426 U.S. 229, 96S.Ct. 2040, 48 L.Ed.2d 597 (1976) (discrim-inatory purpose required for Equal Protec-tion violation); Hunt v. Washington StateApple Advertising Comm’n, 432 U.S. 333,352–353, 97 S.Ct. 2434, 53 L.Ed.2d 383(1977) (discriminatory purpose relevant todormant Commerce Clause claim); Churchof Lukumi Babalu Aye, Inc. v. Hialeah,508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d472 (1993) (discriminatory purpose raiseslevel of scrutiny required by free exerciseclaim). With enquiries into purpose thiscommon, if they were nothing but huntsfor mares’ nests deflectSing862 attentionfrom bare judicial will, the whole notion ofpurpose in law would have dropped intodisrepute long ago.

But scrutinizing purpose does makepractical sense, as in EstablishmentClause analysis, where an understandingof official objective emerges from readilydiscoverable fact, without any judicial psy-choanalysis of a drafter’s heart of hearts.Wallace, 472 U.S., at 74, 105 S.Ct. 2479(O’CONNOR, J., concurring in judgment).The eyes that look to purpose belong to an‘‘ ‘objective observer,’ ’’ one who takes ac-count of the traditional external signs thatshow up in the ‘‘ ‘text, legislative history,and implementation of the statute,’ ’’ orcomparable official act. Santa Fe, supra,at 308, 120 S.Ct. 2266 (quoting Wallace,supra, 472 U.S., at 76, 105 S.Ct. 2479)(O’CONNOR, J., concurring in judgment);see also Edwards v. Aguillard, 482 U.S.578, 594–595, 107 S.Ct. 2573, 96 L.Ed.2d510 (1987) (enquiry looks to ‘‘plain mean-ing of the statute’s words, enlightened bytheir context and the contemporaneouslegislative history [and] the historical con-text of the statute, TTT and the specificsequence of events leading to [its] pas-sage’’). There is, then, nothing hinting atan unpredictable or disingenuous exercisewhen a court enquires into purpose after aclaim is raised under the EstablishmentClause.

The cases with findings of a predomi-nantly religious purpose point to thestraightforward nature of the test. InWallace, for example, we inferred purposefrom a change of wording from an earlierstatute to a later one, each dealing withprayer in schools. 472 U.S., at 58–60, 105S.Ct. 2479. And in Edwards, we relied ona statute’s text and the detailed publiccomments of its sponsor, when we soughtthe purpose of a state law requiring cre-ationism to be taught alongside evolution.482 U.S., at 586–588, 107 S.Ct. 2573. Inother cases, the government action itselfbespoke the purpose, as in Abington,where the object of required Bible study in


545 U.S. 864

public schools was patently religious, 374U.S., at 223–224, 83 S.Ct. 1560; in Stone,the Court held that the ‘‘[p]osting of reli-gious texts on the wall serve[d] no TTT

educational function,’’ and found that if‘‘the posted copies of the Ten Command-ments [were] to have any effect at all, itS 863[would] be to induce the schoolchildrento read, meditate upon, perhaps to vener-ate and obey, the Commandments.’’ 449U.S., at 42, 101 S.Ct. 192. In each case,the government’s action was held unconsti-tutional only because openly available datasupported a commonsense conclusion thata religious objective permeated the gov-ernment’s action.

Nor is there any indication that the en-quiry is rigged in practice to finding areligious purpose dominant every time acase is filed. In the past, the test has notbeen fatal very often, presumably becausegovernment does not generally act uncon-stitutionally, with the predominant pur-pose of advancing religion. That said, oneconsequence of the corollary that Estab-lishment Clause analysis does not look tothe veiled psyche of government officerscould be that in some of the cases in whichestablishment complaints failed, savvy offi-cials had disguised their religious intent socleverly that the objective observer justmissed it. But that is no reason for greatconstitutional concern. If someone in thegovernment hides religious motive so wellthat the ‘‘ ‘objective observer, acquaintedwith the text, legislative history, and im-plementation of the statute,’ ’’ Santa Fe,530 U.S., at 308, 120 S.Ct. 2266 (quotingWallace, supra, at 73, 105 S.Ct. 2479)(O’CONNOR, J., concurring in judgment),cannot see it, then without something morethe government does not make a divisiveannouncement that in itself amounts totaking religious sides. A secret motivestirs up no strife and does nothing to makeoutsiders of nonadherents, and it suffices

to wait and see whether such governmentaction turns out to have (as it may even belikely to have) the illegitimate effect ofadvancing religion.

C

After declining the invitation to abandonconcern with purpose wholesale, we alsohave to avoid the Counties’ alternativetack of trivializing the enquiry into it. TheCounties would read the cases as if thepurpose enquiry were so naive that anytransparent claim to secularity would satis-fy it, and S 864they would cut context out ofthe enquiry, to the point of ignoring histo-ry, no matter what bearing it actually hadon the significance of current circum-stances. There is no precedent for theCounties’ arguments, or reason supportingthem.

1

[6] Lemon said that government actionmust have ‘‘a secular TTT purpose,’’ 403U.S., at 612, 91 S.Ct. 2105, and after a hostof cases it is fair to add that although alegislature’s stated reasons will generallyget deference, the secular purpose re-quired has to be genuine, not a sham, andnot merely secondary to a religious objec-tive. See, e.g., Santa Fe, supra, at 308,120 S.Ct. 2266 (‘‘When a governmental en-tity professes a secular purpose for anarguably religious policy, the government’scharacterization is, of course, entitled tosome deference. But it is nonetheless theduty of the courts to ‘distinguis[h] a shamsecular purpose from a sincere one’ ’’);Edwards, 482 U.S., at 586–587, 107 S.Ct.2573 (‘‘While the Court is normally defer-ential to a State’s articulation of a secularpurpose, it is required that the statementof such purpose be sincere and not asham’’); id., at 590, 594, 107 S.Ct. 2573(referring to enquiry as one into ‘‘preemi-nent’’ or ‘‘primary’’ purpose); Stone, su-


pra, at 41, 101 S.Ct. 192 (looking to the‘‘pre-eminent purpose’’ of government ac-tion).

Even the Counties’ own cited authorityconfirms that we have not made the pur-pose test a pushover for any secular claim.True, Wallace said government action istainted by its object ‘‘if it is entirely moti-vated by a purpose to advance religion,’’472 U.S., at 56, 105 S.Ct. 2479, a remarkthat suggests, in isolation, a fairly complai-sant attitude. But in that very case theCourt declined to credit Alabama’s statedsecular rationale of ‘‘accommodation’’ forlegislation authorizing a period of silencein school for meditation or voluntary pray-er, given the implausibility of that explana-tion in light of another statute alreadyaccommodating children wishing to pray.Id., at 57, n. 45, 105 S.Ct. 2479 (internalquotation marks omitted). And it wouldS 865be just as much a mistake to infer that atimid standard underlies the statement inLynch v. Donnelly that the purpose enqui-ry looks to whether government ‘‘activitywas motivated wholly by religious consid-erations,’’ 465 U.S., at 680, 104 S.Ct. 1355;for two cases cited for that proposition hadexamined and rejected claims of secular

purposes that turned out to be implausibleor inadequate: 11 Stone, supra, at 41, 101S.Ct. 192; Abington, 374 U.S., at 223–224,83 S.Ct. 1560.12 See also Bowen v. Ken-drick, 487 U.S. 589, 602, 108 S.Ct. 2562,101 L.Ed.2d 520 (1988) (using the ‘‘moti-vated wholly by an impermissible purpose’’language, but citing Lynch and Stone). Aswe said, the Court often does accept gov-ernmental statements of purpose, in keep-ing with the respect owed in the firstinstance to such official claims. But inthose unusual cases where the claim wasan apparent sham, or the secular purposesecondary, the unsurprising results havebeen findings of no adequate secular ob-ject, as against a predominantly religiousone.13

S 8662

The Counties’ second proffered limita-tion can be dispatched quickly. They ar-gue that purpose in a case like this oneshould be inferred, if at all, only from thelatest news about the last in a series ofgovernmental actions, however close theymay all be in time and subject. But theworld is not made brand new every morn-ing, and the Counties are simply asking us

11. Moreover, Justice O’CONNOR providedthe fifth vote for the Lynch majority and herconcurrence emphasized the point made im-plicitly in the majority opinion that a secularpurpose must be serious to be sufficient. 465U.S., at 691, 104 S.Ct. 1355 (The purposeinquiry ‘‘is not satisfied TTT by the mere exis-tence of some secular purpose, however do-minated by religious purposes’’).

12. Stone found the sacred character of theTen Commandments preeminent despite anavowed secular purpose to show their ‘‘adop-tion as the fundamental legal code of WesternCivilization and the Common Law TTT .’’ 449U.S., at 39–40, n. 1, 101 S.Ct. 192 (internalquotation marks omitted). And the AbingtonCourt was unconvinced that music educationor the teaching of literature were actual secu-lar objects behind laws requiring public

school teachers to lead recitations from theLord’s Prayer and readings from the Bible.374 U.S., at 273, 83 S.Ct. 1560.

13. The dissent nonetheless maintains that thepurpose test is satisfied so long as any secularpurpose for the government action is appar-ent. Post, at 2757–2758 (opinion of SCALIA,J.). Leaving aside the fact that this position isinconsistent with the language of the casesjust discussed, it would leave the purpose testwith no real bite, given the ease of findingsome secular purpose for almost any govern-ment action. While heightened deference tolegislatures is appropriate for the review ofeconomic legislation, an approach that creditsany valid purpose, no matter how trivial, hasnot been the way the Court has approachedgovernment action that implicates establish-ment.


545 U.S. 867

to ignore perfectly probative evidence;they want an absentminded objective ob-server, not one presumed to be familiarwith the history of the government’s ac-tions and competent to learn what historyhas to show, Santa Fe, 530 U.S., at 308,120 S.Ct. 2266 (objective observer is famil-iar with ‘‘ ‘implementation of’ ’’ governmentaction (quoting Wallace, supra, at 76, 105S.Ct. 2479) (O’CONNOR, J., concurring injudgment)); Edwards, supra, at 595, 107S.Ct. 2573 (enquiry looks to ‘‘the historicalcontext of the statute TTT and the specificsequence of events leading to [its] pas-sage’’); Capitol Square Review and Advi-sory Bd. v. Pinette, 515 U.S. 753, 780, 115S.Ct. 2440, 132 L.Ed.2d 650 (1995)(O’CONNOR, J., concurring in part andconcurring in judgment) (‘‘[T]he reason-able observer in the endorsement inquirymust be deemed aware of the history andcontext of the community and forum inwhich the religious display appears’’). TheCounties’ position just bucks commonsense: reasonable observers have reason-able memories, and our precedents sensi-bly forbid an observer ‘‘to turn a blind eyeto the context in which [the] policy

arose.’’ 14 Santa Fe, supra, at 315, 120S.Ct. 2266.

S 867III

[7] This case comes to us on appealfrom a preliminary injunction. We accord-ingly review the District Court’s legal rul-ings de novo, and its ultimate conclusionfor abuse of discretion.15 Ashcroft v.American Civil Liberties Union, 542 U.S.656, 124 S.Ct. 2783, 159 L.Ed.2d 690(2004).

We take Stone as the initial legalbenchmark, our only case dealing withthe constitutionality of displaying theCommandments. Stone recognized thatthe Commandments are an ‘‘instrument ofreligion’’ and that, at least on the factsbefore it, the display of their text couldpresumptively be understood as meant toadvance religion: although state law spe-cifically required their posting in publicschool classrooms, their isolated exhibitiondid not leave room even for an argumentthat secular education explained their be-ing there. 449 U.S., at 41, n. 3, 101 S.Ct.192 (internal quotation marks omitted).But Stone did not purport to decide theconstitutionality of every possible way the

14. One consequence of taking account of thepurpose underlying past actions is that thesame government action may be constitution-al if taken in the first instance and unconstitu-tional if it has a sectarian heritage. Thispresents no incongruity, however, becausepurpose matters. Just as Holmes’s dog couldtell the difference between being kicked andbeing stumbled over, it will matter to objec-tive observers whether posting the Command-ments follows on the heels of displays moti-vated by sectarianism, or whether it lacks ahistory demonstrating that purpose. The dis-sent, apparently not giving the reasonable ob-server as much credit as Holmes’s dog, con-tends that in practice it will be ‘‘absur[d]’’ torely upon differences in purpose in assessinggovernment action. Post, at 2761. As aninitial matter, it will be the rare case in whichone of two identical displays violates the pur-

pose prong. In general, like displays tend toshow like objectives and will be treated ac-cordingly. But where one display has a histo-ry manifesting sectarian purpose that the oth-er lacks, it is appropriate that they be treateddifferently, for the one display will be proper-ly understood as demonstrating a preferencefor one group of religious believers as againstanother. See supra, at 2733–2734. Whileposting the Commandments may not have theeffect of causing greater adherence to them,an ostensible indication of a purpose to pro-mote a particular faith certainly will have theeffect of causing viewers to understand thegovernment is taking sides.

15. We note that the only factor in the prelimi-nary injunction analysis that is at issue here isthe likelihood of the ACLU’s success on themerits.


Commandments might be set out by thegovernment, and under the EstablishmentClause detail is key. County of Alleghe-ny v. American Civil Liberties Union,Greater Pittsburgh Chapter, 492 U.S. 573,595, 109 S.Ct. 3086, 106 L.Ed.2d 472S 868(1989) (opinion of Blackmun, J.) (‘‘[T]hequestion is what viewers may fairly un-derstand to be the purpose of the display.That inquiry, of necessity, turns upon thecontext in which the contested object ap-pears’’ (internal quotation marks and cita-tion omitted)). Hence, we look to therecord of evidence showing the progres-sion leading up to the third display of theCommandments.

A

[8] The display rejected in Stone hadtwo obvious similarities to the first one inthe sequence here: both set out a text ofthe Commandments as distinct from anytraditionally symbolic representation, andeach stood alone, not part of an arguablysecular display. Stone stressed the signifi-cance of integrating the Commandmentsinto a secular scheme to forestall thebroadcast of an otherwise clearly religiousmessage, 449 U.S., at 42, 101 S.Ct. 192,and for good reason, the Commandmentsbeing a central point of reference in thereligious and moral history of Jews andChristians. They proclaim the existenceof a monotheistic god (no other gods).They regulate details of religious obli-gation (no graven images, no sabbathbreaking, no vain oath swearing). Andthey unmistakably rest even the universal-ly accepted prohibitions (as against mur-

der, theft, and the like) on the sanction ofthe divinity proclaimed at the beginning ofthe text. Displaying that text is thus dif-ferent from a symbolic depiction, like tab-lets with 10 roman numerals, which couldbe seen as alluding to a general notion oflaw, not a sectarian conception of faith.Where the text is set out, the insistence ofthe religious message is hard to avoid inthe absence of a context plausibly suggest-ing a message going beyond an excuse topromote the religious point of view. Thedisplay in Stone had no context that mighthave indicated an object beyond the reli-gious character of the text, and the Coun-ties’ solo exhibit here did nothing more tocounter the sectarian implication than theS 869postings at issue in Stone.16 See alsoCounty of Allegheny, supra, at 598, 109S.Ct. 3086 (‘‘Here, unlike in Lynch [v.Donnelly], nothing in the context of thedisplay detracts from the creche’s religiousmessage’’). Actually, the posting by theCounties lacked even the Stone display’simplausible disclaimer that the Command-ments were set out to show their effect onthe civil law.17 What is more, at the cere-mony for posting the framed Command-ments in Pulaski County, the county exec-utive was accompanied by his pastor, whotestified to the certainty of the existence ofGod. The reasonable observer could onlythink that the Counties meant to empha-size and celebrate the Commandments’ re-ligious message.

This is not to deny that the Command-ments have had influence on civil or secu-lar law; a major text of a majority religionis bound to be felt. The point is simply

16. Although the Counties point out that thecourthouses contained other displays besidesthe Ten Commandments, there is no sugges-tion that the Commandments display was in-tegrated to form a secular display.

17. In Stone, the Commandments were accom-panied by a small disclaimer: ‘‘The secular

application of the Ten Commandments isclearly seen in its adoption as the fundamen-tal legal code of Western Civilization and theCommon Law of the United States.’’ 449U.S., at 39–40, n. 1, 101 S.Ct. 192 (internalquotation marks omitted).


545 U.S. 871

that the original text viewed in its entiretyis an unmistakably religious statementdealing with religious obligations and withmorality subject to religious sanction.When the government initiates an effort toplace this statement alone in public view, areligious object is unmistakable.

B

Once the Counties were sued, they mod-ified the exhibits and invited additionalinsight into their purpose in a display thathung for about six months. This new onewas the product of forthright and nearlyidentical Pulaski and McCreary Countyresolutions listing a series of Americanhistorical documents with theistic andChristian references, which S 870were to beposted in order to furnish a setting fordisplaying the Ten Commandments andany ‘‘other Kentucky and American histor-ical documen[t]’’ without raising concernabout ‘‘any Christian or religious refer-ences’’ in them. Def. Exh. 1, at 1. Asmentioned, the resolutions expressed sup-port for an Alabama judge who posted theCommandments in his courtroom, and cit-ed the fact the Kentucky Legislature onceadjourned a session in honor of ‘‘JesusChrist, the Prince of Ethics.’’ Id., at 2–3.

In this second display, unlike the first,the Commandments were not hung inisolation, merely leaving the Counties’purpose to emerge from the pervasivelyreligious text of the Commandmentsthemselves. Instead, the second versionwas required to include the statement ofthe government’s purpose expressly setout in the county resolutions, and under-scored it by juxtaposing the Command-ments to other documents with high-lighted references to God as their sole

common element. The display’s unstint-ing focus was on religious passages,showing that the Counties were postingthe Commandments precisely because oftheir sectarian content. That demonstra-tion of the government’s objective wasenhanced by serial religious referencesand the accompanying resolution’s claimabout the embodiment of ethics inChrist. Together, the display and reso-lution presented an indisputable, and un-disputed, showing of an impermissiblepurpose.

Today, the Counties make no attempt todefend their undeniable objective, but in-stead hopefully describe version two as‘‘dead and buried.’’ Reply Brief for Peti-tioners 15. Their refusal to defend thesecond display is understandable, but thereasonable observer could not forget it.

C

1

After the Counties changed lawyers,they mounted a third display, without anew resolution or repeal of the old one.The result was the ‘‘Foundations of Ameri-can Law and GovSernment’’871 exhibit,which placed the Commandments in thecompany of other documents the Countiesthought especially significant in the histor-ical foundation of American government.In trying to persuade the District Court tolift the preliminary injunction, the Coun-ties cited several new purposes for thethird version, including a desire ‘‘to edu-cate the citizens of the county regardingsome of the documents that played a sig-nificant role in the foundation of our sys-tem of law and government.’’ 18 145

18. The Counties’ other purposes were:‘‘to erect a display containing the Ten Com-mandments that is constitutional; TTT to dem-onstrate that the Ten Commandments were

part of the foundation of American Law andGovernment; TTT [to include the Ten Com-mandments] as part of the display for theirsignificance in providing ‘the moral back-


F.Supp.2d, at 848 (internal quotationmarks omitted). The Counties’ claims didnot, however, persuade the court, intimate-ly familiar with the details of this litiga-tion, or the Court of Appeals, neither ofwhich found a legitimizing secular purposein this third version of the display.‘‘ ‘When both courts [that have alreadypassed on the case] are unable to discernan arguably valid secular purpose, thisCourt normally should hesitate to findone.’ ’’ Edwards, 482 U.S., at 594, n. 15,107 S.Ct. 2573 (quoting Wallace, 472 U.S.,at 66, 105 S.Ct. 2479 (Powell, J., concur-ring)). The conclusions of the two courtspreceding us in this case are well warrant-ed.

[9] These new statements of purposewere presented only as a litigating posi-tion, there being no further authorizingaction by the Counties’ governing boards.And although repeal of the earlier countyauthorizations would not have erased themfrom the record of evidence bearing oncurrent purpose,19 the extraordinary reso-lutions for the second display passed justmonths earlier were not repealed or oth-erSwise872 repudiated.20 Indeed, the sectar-ian spirit of the common resolution foundenhanced expression in the third display,which quoted more of the purely religiouslanguage of the Commandments than thefirst two displays had done; for additions,see App. to Pet. for Cert. 189a (‘‘I the

LORD thy God am a jealous God’’) (text ofSecond Commandment in third display);(‘‘the LORD will not hold him guiltlessthat taketh his name in vain’’) (text ofThird Commandment); and (‘‘that thydays may be long upon the land which theLORD thy God giveth thee’’) (text of FifthCommandment). No reasonable observercould swallow the claim that the Countieshad cast off the objective so unmistakablein the earlier displays.

Nor did the selection of posted mate-rial suggest a clear theme that mightprevail over evidence of the continuingreligious object. In a collection of docu-ments said to be ‘‘foundational’’ toAmerican government, it is at least oddto include a patriotic anthem, but toomit the Fourteenth Amendment, themost significant structural provisionadopted since the original Framing.And it is no less baffling to leave outthe original Constitution of 1787 whilequoting the 1215 Magna Carta even tothe point of its declaration that ‘‘fish-weirs shall be removed from theThames.’’ Id., at 205a, ¶ 33. If an ob-server found these choices and omissionsperplexing in isolation, he would be puz-zled for a S 873different reason when heread the Declaration of Independenceseeking confirmation for the Counties’

ground of the Declaration of Independenceand the foundation of our legal tradition.’ ’’145 F.Supp.2d, at 848 (some internal quota-tion marks omitted).

19. Following argument in this case, in whichthe resolutions were discussed, the McCrearyand Pulaski County Boards did repeal theresolutions, acts of obviously minimal signifi-cance in the evolution of the evidence.

20. The Counties argue that the objective ob-server would not continue to believe that theresolution was in effect after the third displaywent up because the resolution authorizedonly the second display. But the resolution

on its face is not limited to any particulardisplay. On the contrary, it encourages thecreation of a display with the Ten Command-ments that also includes such documents as‘‘the National anthem TTT the National MottoTTT the preamble to the Kentucky Constitu-tion[,] the Declaration of Independence [and]the Mayflower Compact TTT without censor-ship because of any Christian or religiousreferences.’’ Def. Exh. 1, at 1. The thirddisplay contains all of these documents, sug-gesting that it fell within the resolutions aswell. The record does not indicate whetherthe resolutions were posted with the thirddisplay.


545 U.S. 874

posted explanation that the Ten Com-mandments’ ‘‘influence is clearly seen inthe Declaration,’’ id., at 180a; in factthe observer would find that the Com-mandments are sanctioned as divine im-peratives, while the Declaration of Inde-pendence holds that the authority ofgovernment to enforce the law derives‘‘from the consent of the governed,’’ id.,at 190a.21 If the observer had notthrown up his hands, he would probablysuspect that the Counties were simplyreaching for any way to keep a religiousdocument on the walls of courthousesconstitutionally required to embody reli-gious neutrality.22

2In holding the preliminary injunction ad-

equately supported by evidence that theCounties’ purpose had not changed at thethird stage, we do not decide that theCounSties’874 past actions forever taint anyeffort on their part to deal with the subjectmatter. We hold only that purpose needsto be taken seriously under the Establish-ment Clause and needs to be understood inlight of context; an implausible claim that

governmental purpose has changed shouldnot carry the day in a court of law anymore than in a head with common sense.It is enough to say here that district courtsare fully capable of adjusting preliminaryrelief to take account of genuine changesin constitutionally significant conditions.See Ashcroft v. American Civil LibertiesUnion, 542 U.S. 656, 124 S.Ct. 2783 (2004).

Nor do we have occasion here to holdthat a sacred text can never be integratedconstitutionally into a governmental dis-play on the subject of law, or Americanhistory. We do not forget, and in thislitigation have frequently been reminded,that our own courtroom frieze was deliber-ately designed in the exercise of govern-mental authority so as to include the figureof Moses holding tablets exhibiting a por-tion of the Hebrew text of the later, secu-larly phrased Commandments; in the com-pany of 17 other lawgivers, most of themsecular figures, there is no risk that Moseswould strike an observer as evidence thatthe National Government was violatingneutrality in religion.23

21. The Counties have now backed away fromtheir broad assertion that the Commandmentsprovide ‘‘the’’ moral background of the Decla-ration of Independence, and now merelyclaim that many of the Commandments ‘‘re-garding murder, property, theft, coveting,marriage, rest from labor and honoring par-ents are compatible with the rights to life,liberty and happiness.’’ Brief for Petitioners10, n. 7.

22. The Counties grasp at McGowan v. Mary-land, 366 U.S. 420, 81 S.Ct. 1101 (1961), butit bears little resemblance to this case. Asnoted supra, at 2733–2734, McGowan heldthat religious purposes behind centuries-oldpredecessors of Maryland’s Sunday laws werenot dispositive of the purposes of modernSunday laws, where the legislature had re-moved much of the religious reference in thelaws and stated secular and pragmatic justifi-cations for them. 366 U.S., at 446–452, 81S.Ct. 1101. But a conclusion that centuries-

old purposes may no longer be operative saysnothing about the relevance of recent evi-dence of purpose, and this case is far morelike Santa Fe, with its evolution of a schoolfootball game prayer policy over the course ofa single lawsuit. Like that case, ‘‘[t]his [one]comes to us as the latest step in developinglitigation brought as a challenge to institu-tional practices that unquestionably violatedthe Establishment Clause.’’ 530 U.S., at 315,120 S.Ct. 2266 (describing the evolution ofthe school district’s football prayer policy).Thus, as in Santa Fe, it makes sense to exam-ine the Counties’ latest action ‘‘in light of[their] history of’’ unconstitutional practices.Id., at 309, 120 S.Ct. 2266.

23. The dissent notes that another depiction ofMoses and the Commandments adorns thisCourt’s east pediment. Post, at 2760. But aswith the courtroom frieze, Moses is found inthe company of other figures, not only greatbut secular.


IV

The importance of neutrality as an inter-pretive guide is no less true now than itwas when the Court broached the principlein Everson v. Board of Ed. of Ewing, 330U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947),and a word needs to be said about thedifferent view taken in today’s dissent.We all agree, of course, on the need forsome interpretative help. The FirstAmendment contains no textual definitionof ‘‘establishment,’’ and the S 875term is cer-tainly not self-defining. No one contendsthat the prohibition of establishment stopsat a designation of a national (or withFourteenth Amendment incorporation,Cantwell v. Connecticut, 310 U.S. 296, 303,60 S.Ct. 900, 84 L.Ed. 1213 (1940), a state)church, but nothing in the text says justhow much more it covers. There is nosimple answer, for more than one reason.

The prohibition on establishment coversa variety of issues from prayer in widelyvarying government settings, to financialaid for religious individuals and institu-tions, to comment on religious questions.In these varied settings, issues of inter-preting inexact Establishment Clause lan-guage, like difficult interpretative issuesgenerally, arise from the tension of com-peting values, each constitutionally re-spectable, but none open to realization tothe logical limit.

The First Amendment has not one buttwo clauses tied to ‘‘religion,’’ the secondforbidding any prohibition on ‘‘the freeexercise thereof,’’ and sometimes, the twoclauses compete: spending governmentmoney on the clergy looks like establishingreligion, but if the government cannot payfor military chaplains a good many soldiersand sailors would be kept from the oppor-tunity to exercise their chosen religions.See Cutter v. Wilkinson, 544 U.S. 709, 719,125 S.Ct. 2113, 2120, 161 L.Ed.2d 1020(2005). At other times, limits on govern-

mental action that might make sense as away to avoid establishment could arguablylimit freedom of speech when the speakingis done under government auspices. Ro-senberger v. Rector and Visitors of Univ.of Va., 515 U.S. 819, 115 S.Ct. 2510, 132L.Ed.2d 700 (1995). The dissent, then, iswrong to read cases like Walz v. TaxComm’n of City of New York, 397 U.S.664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970),as a rejection of neutrality on its ownterms, post, at 2751–2752, for tradeoffs areinevitable, and an elegant interpretativerule to draw the line in all the multifarioussituations is not to be had.

Given the variety of interpretative prob-lems, the principle of neutrality has pro-vided a good sense of direction: the gov-ernment may not favor one religion overanother, or religion over irreligion, reli-gious choice being the prerogative ofindiSviduals876 under the Free ExerciseClause. The principle has been helpfulsimply because it responds to one of themajor concerns that prompted adoption ofthe Religion Clauses. The Framers andthe citizens of their time intended not onlyto protect the integrity of individual con-science in religious matters, Wallace, 472U.S., at 52–54, and n. 38, 105 S.Ct. 2479,but to guard against the civic divisivenessthat follows when the government weighsin on one side of religious debate; nothingdoes a better job of roiling society, a pointthat needed no explanation to the descen-dants of English Puritans and Cavaliers(or Massachusetts Puritans and Baptists).E.g., Everson, supra, at 8, 67 S.Ct. 504 (‘‘Alarge proportion of the early settlers ofthis country came here from Europe toescape [religious persecution]’’). A senseof the past thus points to governmentalneutrality as an objective of the Establish-ment Clause, and a sensible standard for


545 U.S. 878

applying it. To be sure, given its generali-ty as a principle, an appeal to neutralityalone cannot possibly lay every issue torest, or tell us what issues on the marginsare substantial enough for constitutionalsignificance, a point that has been clearfrom the founding era to modern times.E.g., Letter from J. Madison to R. Adams(1832), in 5 The Founders’ Constitution107 (P. Kurland & R. Lerner eds. 1987)(‘‘[In calling for separation] I must admitmoreover that it may not be easy, in everypossible case, to trace the line of separa-tion between the rights of religion and theCivil authority with such distinctness as toavoid collisions & doubts on unessentialpoints’’); Sherbert v. Verner, 374 U.S. 398,422, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963)(Harlan, J., dissenting) (‘‘The constitution-al obligation of ‘neutrality’ TTT is not sonarrow a channel that the slightest devia-tion from an absolutely straight courseleads to condemnation’’). But invokingneutrality is a prudent way of keepingsight of something the Framers of theFirst Amendment thought important.

The dissent, however, puts forward alimitation on the application of the neutral-ity principle, with citations to historicalevidence said to show that the Framersunderstood the S 877ban on establishment ofreligion as sufficiently narrow to allow thegovernment to espouse submission to thedivine will. The dissent identifies God asthe God of monotheism, all of whose threeprincipal strains (Jewish, Christian, andMuslim) acknowledge the religious impor-

tance of the Ten Commandments. Post, at2752–2753. On the dissent’s view, it ap-parently follows that even rigorous espous-al of a common element of this commonmonotheism is consistent with the estab-lishment ban.

But the dissent’s argument for the origi-nal understanding is flawed from the out-set by its failure to consider the full rangeof evidence showing what the Framersbelieved. The dissent is certainly correctin putting forward evidence that some ofthe Framers thought some endorsement ofreligion was compatible with the establish-ment ban; the dissent quotes the firstPresident as stating that ‘‘[n]ational moral-ity [cannot] prevail in exclusion of religiousprinciple,’’ for example, post, at 2749 (in-ternal quotation marks omitted), and itcites his first Thanksgiving proclamationgiving thanks to God, post, at 2748–2749.Surely if expressions like these fromWashington and his contemporaries wereall we had to go on, there would be a goodcase that the neutrality principle has theeffect of broadening the ban on establish-ment beyond the Framers’ understandingof it (although there would, of course, stillbe the question of whether the historicalcase could overcome some 60 years ofprecedent taking neutrality as its guidingprinciple).24

S 878But the fact is that we do have moreto go on, for there is also evidence sup-porting the proposition that the Framersintended the Establishment Clause to re-quire governmental neutrality in mattersof religion, including neutrality in state-

24. The dissent also maintains that our prece-dents show that a solo display of the Com-mandments is a mere acknowledgment of re-ligion ‘‘on par with the inclusion of a crecheor a menorah’’ in a holiday display, or anofficial’s speech or prayer, post, at 2759.Whether or not our views would differ aboutthe significance of those practices if we wereconsidering them as original matters, theymanifest no objective of subjecting individual

lives to religious influence comparable to theapparent and openly acknowledged purposebehind posting the Commandments. Crechesplaced with holiday symbols and prayers bylegislators do not insistently call for religiousaction on the part of citizens; the history ofposting the Commandments expressed a pur-pose to urge citizens to act in prescribed waysas a personal response to divine authority.


ments acknowledging religion. The verylanguage of the Establishment Clause rep-resented a significant departure from earlydrafts that merely prohibited a single na-tional religion, and the final language in-stead ‘‘extended [the] prohibition to statesupport for ‘religion’ in general.’’ See Leev. Weisman, 505 U.S. 577, 614–615, 112S.Ct. 2649, 120 L.Ed.2d 467 (1992) (SOUT-ER, J., concurring) (tracing developmentof language).

The historical record, moreover, is com-plicated beyond the dissent’s account bythe writings and practices of figures noless influential than Thomas Jefferson andJames Madison. Jefferson, for example,refused to issue Thanksgiving Proclama-tions because he believed that they violat-ed the Constitution. See Letter to S. Mil-ler (Jan. 23, 1808), in 5 The Founders’Constitution, supra, at 98. And Madison,whom the dissent claims as supporting itsthesis, post, at 2749–2750, criticized Virgi-nia’s general assessment tax not just be-cause it required people to donate ‘‘threepence’’ to religion, but because ‘‘it is itselfa signal of persecution. It degrades fromthe equal rank of Citizens all those whoseopinions in Religion do not bend to thoseof the Legislative authority.’’ 505 U.S., at622, 112 S.Ct. 2649 (internal quotationmarks omitted); see also Letter from J.Madison to E. Livingston (July 10, 1822),in 5 The Founders’ Constitution, supra, at106 (‘‘[R]eligion & Govt. will both exist ingreater purity, the less they are mixedtogether’’); Letter from J. Madison to J.Adams (Sept. 1833,) in Religion and Poli-tics in the Early Republic 120 (D. Dresi-

bach ed.1996) (stating that with respect toreligion and government the ‘‘tendency toa usurpation on one side, or the other, orto a corrupting coalition or alliance be-tween them, will be best guarded againstby an entire abstinence of theS 879Government from interference’’); VanOrden v. Perry, post, 545 U.S., at 724–725,125 S.Ct. 2854, 2882, 162 L.Ed.2d 607, 2005WL 1500276, *22 (2005) (STEVENS, J.,dissenting).25

The fair inference is that there was nocommon understanding about the limits ofthe establishment prohibition, and the dis-sent’s conclusion that its narrower viewwas the original understanding, post, at2748–2749, stretches the evidence beyondtensile capacity. What the evidence doesshow is a group of statesmen, like othersbefore and after them, who proposed aguarantee with contours not whollyworked out, leaving the EstablishmentClause with edges still to be determined.And none the worse for that. Indetermi-nate edges are the kind to have in a consti-tution meant to endure, and to meet ‘‘exi-gencies which, if foreseen at all, must havebeen seen dimly, and which can be bestprovided for as they occur.’’ McCulloch v.Maryland, 4 Wheat. 316, 415, 4 L.Ed. 579(1819).

While the dissent fails to show a consis-tent original understanding from which toargue that the neutrality principle shouldbe rejected, it does manage to deliver asurprise. As mentioned, the dissent saysthat the deity the Framers had in mindwas the God of monotheism, with the con-sequence that government may espouse atenet of traditional monotheism. This is

25. The dissent cites material suggesting thatseparationists like Jefferson and Madisonwere not absolutely consistent in abstainingfrom official religious acknowledgment. Post,at 2749–2750. But, a record of inconsistenthistorical practice is too weak a lever to upsetdecades of precedent adhering to the neutrali-ty principle. And it is worth noting that Jef-

ferson thought his actions were consistentwith nonendorsement of religion and Madi-son regretted any backsliding he may havedone. Lee v. Weisman, 505 U.S. 577, 622–625, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992)(SOUTER, J., concurring). ‘‘Homer nodded.’’Id., at 624, 112 S.Ct. 2649, n. 5 (corrected inerratum at 535 U.S. II).


545 U.S. 881

truly a remarkable view. Other Membersof the Court have dissented on the groundthat the Establishment Clause bars noth-ing more than governmental preferencefor one religion over another, e.g., Wal-lace, 472 U.S., at 98–99, 105 S.Ct. 2479(REHNQUIST, J., dissenting), but at leastreligion has previously been treated inclu-sively. Today’s dissent, howSever,880 appar-ently means that government should befree to approve the core beliefs of a fa-vored religion over the tenets of others, aview that should trouble anyone whoprizes religious liberty. Certainly historycannot justify it; on the contrary, historyshows that the religion of concern to theFramers was not that of the monotheisticfaiths generally, but Christianity in partic-ular, a fact that no Member of this Courttakes as a premise for construing the Reli-gion Clauses. Justice Story probably re-flected the thinking of the framing genera-tion when he wrote in his Commentariesthat the purpose of the Clause was ‘‘not tocountenance, much less to advance, Maho-metanism, or Judaism, or infidelity, byprostrating Christianity; but to exclude allrivalry among Christian sects.’’ R. Cord,Separation of Church and State: Histori-cal Fact and Current Fiction 13 (1988)(emphasis deleted). The Framers would,therefore, almost certainly object to thedissent’s unstated reasoning that becauseChristianity was a monotheistic ‘‘religion,’’monotheism with Mosaic antecedentsshould be a touchstone of establishment

interpretation.26 Even on originalist cri-tiques of existing precedent there is, itseems, no escape from interpretative con-sequences that would surprise the Fram-ers. Thus, it appears to be commonground in the interpretation of a Constitu-tion ‘‘intended to endure for ages tocome,’’ McCulloch v. S 881Maryland, supra,at 415, that applications unanticipated bythe Framers are inevitable.

Historical evidence thus supports no sol-id argument for changing course (whateverforce the argument might have when di-rected at the existing precedent), whereaspublic discourse at the present time cer-tainly raises no doubt about the value ofthe interpretative approach invoked for 60years now. We are centuries away fromthe St. Bartholomew’s Day massacre andthe treatment of heretics in early Massa-chusetts, but the divisiveness of religion incurrent public life is inescapable. This isno time to deny the prudence of under-standing the Establishment Clause to re-quire the Government to stay neutral onreligious belief, which is reserved for theconscience of the individual.

V

Given the ample support for the DistrictCourt’s finding of a predominantly reli-gious purpose behind the Counties’ thirddisplay, we affirm the Sixth Circuit in up-holding the preliminary injunction.

It is so ordered.

26. There might, indeed, even have beensome reservations about monotheism as theparadigm example. It is worth noting thatthe canonical biography of George Washing-ton, the dissent’s primary exemplar of themonotheistic tradition, calls him a deist. J.Flexner, George Washington: Anguish andFarewell (1793–1799), p. 490 (1972) (‘‘Wash-ington’s religious belief was that of the en-lightenment: deism’’). It would have beenodd for the First Congress to propose an

Amendment with Religion Clauses that tookno account of the President’s religion. Aswith other historical matters pertinent here,however, there are conflicting conclusions.R. Brookhiser, Founding Father: Rediscov-ering George Washington 146 (1996)(‘‘Washington’s God was no watchmaker’’).History writ small does not give clear andcertain answers to questions about the limitsof ‘‘religion’’ or ‘‘establishment.’’


Justice O’CONNOR, concurring.

I join in the Court’s opinion. The FirstAmendment expresses our Nation’s funda-mental commitment to religious liberty bymeans of two provisions—one protectingthe free exercise of religion, the otherbarring establishment of religion. Theywere written by the descendents of peoplewho had come to this land precisely so thatthey could practice their religion freely.Together with the other First Amendmentguarantees—of free speech, a free press,and the rights to assemble and petition—the Religion Clauses were designed tosafeguard the freedom of conscience andbelief that those immigrants had sought.They embody an idea that was once con-sidered radical: Free people are entitledto free S 882and diverse thoughts, which gov-ernment ought neither to constrain nor todirect.

Reasonable minds can disagree abouthow to apply the Religion Clauses in agiven case. But the goal of the Clauses isclear: to carry out the Founders’ plan ofpreserving religious liberty to the fullestextent possible in a pluralistic society. Byenforcing the Clauses, we have kept reli-gion a matter for the individual conscience,not for the prosecutor or bureaucrat. At atime when we see around the world theviolent consequences of the assumption ofreligious authority by government, Ameri-cans may count themselves fortunate: Ourregard for constitutional boundaries hasprotected us from similar travails, whileallowing private religious exercise to flour-ish. The well-known statement that ‘‘[w]eare a religious people,’’ Zorach v. Clauson,343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed.954 (1952), has proved true. Americansattend their places of worship more oftenthan do citizens of other developed nations,R. Fowler, A. Hertzke, & L. Olson, Reli-gion and Politics in America 28–29 (2ded.1999), and describe religion as playing

an especially important role in their lives,Pew Global Attitudes Project, AmongWealthy Nations TTT U.S. Stands Alone inits Embrace of Religion (Dec. 19, 2002).Those who would renegotiate the bound-aries between church and state musttherefore answer a difficult question: Whywould we trade a system that has servedus so well for one that has served othersso poorly?

Our guiding principle has been JamesMadison’s—that ‘‘[t]he Religion TTT of ev-ery man must be left to the conviction andconscience of every man.’’ Memorial andRemonstrance Against Religious Assess-ments, 2 Writings of James Madison 183,184 (G. Hunt ed.1901) (hereinafter Memo-rial). To that end, we have held that theguarantees of religious freedom protectcitizens from religious incursions by theStates as well as by the Federal Govern-ment. Everson v. Board of Ed. of Ewing,330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711(1947); Cantwell v. Connecticut, 310 U.S.296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).Government may not coerce a perSson883

into worshiping against her will, nor pro-hibit her from worshiping according to it.It may not prefer one religion over anoth-er or promote religion over nonbelief. Ev-erson, supra, at 15–16, 67 S.Ct. 504. Itmay not entangle itself with religion.Walz v. Tax Comm’n of City of New York,397 U.S. 664, 674, 90 S.Ct. 1409, 25L.Ed.2d 697 (1970). And government maynot, by ‘‘endorsing religion or a religiouspractice,’’ ‘‘mak[e] adherence to religionrelevant to a person’s standing in the polit-ical community.’’ Wallace v. Jaffree, 472U.S. 38, 69, 105 S.Ct. 2479, 86 L.Ed.2d 29(1985) (O’CONNOR, J., concurring injudgment).

When we enforce these restrictions, wedo so for the same reason that guided theFramers—respect for religion’s specialrole in society. Our Founders conceivedof a Republic receptive to voluntary reli-


545 U.S. 885

gious expression, and provided for the pos-sibility of judicial intervention when gov-ernment action threatens or impedes suchexpression. Voluntary religious belief andexpression may be as threatened whengovernment takes the mantle of religionupon itself as when government directlyinterferes with private religious practices.When the government associates one set ofreligious beliefs with the state and identi-fies nonadherents as outsiders, it en-croaches upon the individual’s decisionabout whether and how to worship. In themarketplace of ideas, the government hasvast resources and special status. Govern-ment religious expression therefore riskscrowding out private observance and dis-torting the natural interplay between com-peting beliefs. Allowing government to bea potential mouthpiece for competing reli-gious ideas risks the sort of division thatmight easily spill over into suppression ofrival beliefs. Tying secular and religiousauthority together poses risks to both.

Given the history of this particular dis-play of the Ten Commandments, the Courtcorrectly finds an Establishment Clauseviolation. See ante, at 2737–2741. Thepurpose behind the counties’ display is rel-evant because it conveys an unmistakablemessage of endorsement to the reasonableobSserver.884 See Lynch v. Donnelly, 465U.S. 668, 690, 104 S.Ct. 1355, 79 L.Ed.2d604 (1984) (O’CONNOR, J., concurring).

It is true that many Americans find theCommandments in accord with their per-sonal beliefs. But we do not count headsbefore enforcing the First Amendment.See West Virginia Bd. of Ed. v. Barnette,319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed.1628 (1943) (‘‘The very purpose of a Bill ofRights was to withdraw certain subjectsfrom the vicissitudes of political controver-sy, to place them beyond the reach ofmajorities and officials and to establish

them as legal principles to be applied bythe courts’’). Nor can we accept the theo-ry that Americans who do not accept theCommandments’ validity are outside theFirst Amendment’s protections. There isno list of approved and disapproved beliefsappended to the First Amendment—andthe Amendment’s broad terms (‘‘free exer-cise,’’ ‘‘establishment,’’ ‘‘religion’’) do notadmit of such a cramped reading. It istrue that the Framers lived at a time whenour national religious diversity was neitheras robust nor as well recognized as it isnow. They may not have foreseen thevariety of religions for which this Nationwould eventually provide a home. Theysurely could not have predicted new reli-gions, some of them born in this country.But they did know that line-drawing be-tween religions is an enterprise that, oncebegun, has no logical stopping point. Theyworried that ‘‘the same authority whichcan establish Christianity, in exclusion ofall other Religions, may establish with thesame ease any particular sect of Chris-tians, in exclusion of all other Sects.’’ Me-morial 186. The Religion Clauses, as aresult, protect adherents of all religions, aswell as those who believe in no religion atall.

* * *

We owe our First Amendment to a gen-eration with a profound commitment toreligion and a profound commitment toreligious liberty—visionaries who heldtheir faith ‘‘with enough confidence to be-lieve that what should be rendered S 885toGod does not need to be decided and col-lected by Caesar.’’ Zorach, 343 U.S., at324–325, 72 S.Ct. 679 (Jackson, J., dissent-ing). In my opinion, the display at issuewas an establishment of religion in viola-tion of our Constitution. For the reasonsgiven above, I join in the Court’s opinion.


Justice SCALIA, with whom THECHIEF JUSTICE and Justice THOMASjoin, and with whom Justice KENNEDYjoins as to Parts II and III, dissenting.

I would uphold McCreary County andPulaski County, Kentucky’s (hereinafterCounties) displays of the Ten Command-ments. I shall discuss, first, why theCourt’s oft repeated assertion that thegovernment cannot favor religious practiceis false; second, why today’s opinion ex-tends the scope of that falsehood evenbeyond prior cases; and third, why evenon the basis of the Court’s false assump-tions the judgment here is wrong.

I

A

On September 11, 2001, I was attendingin Rome, Italy, an international conferenceof judges and lawyers, principally fromEurope and the United States. That nightand the next morning virtually all of theparticipants watched, in their hotel rooms,the address to the Nation by the Presidentof the United States concerning the mur-derous attacks upon the Twin Towers andthe Pentagon, in which thousands of Amer-icans had been killed. The address ended,as Presidential addresses often do, withthe prayer ‘‘God bless America.’’ The nextafternoon I was approached by one of thejudges from a European country, who, af-ter extending his profound condolences formy country’s loss, sadly observed: ‘‘How Iwish that the Head of State of my country,at a similar time of national tragedy anddistress, could conclude his address ‘Godbless .’ It is of course absolutelyforbidden.’’

S 886That is one model of the relationshipbetween church and state—a modelspread across Europe by the armies ofNapoleon, and reflected in the Constitu-tion of France, which begins, ‘‘France is

[a] TTT secular TTT Republic.’’ FranceConst., Art. 1, in 7 Constitutions of theCountries of the World, p. 1 (G. Flanzed.2000). Religion is to be strictly exclud-ed from the public forum. This is not, andnever was, the model adopted by America.George Washington added to the form ofPresidential oath prescribed by Art. II,§ 1, cl. 8, of the Constitution, the conclud-ing words ‘‘so help me God.’’ See Blom-quist, The Presidential Oath, the AmericanNational Interest and a Call for Presipru-dence, 73 UMKC L.Rev. 1, 34 (2004). TheSupreme Court under John Marshallopened its sessions with the prayer, ‘‘Godsave the United States and this HonorableCourt.’’ 1 C. Warren, The Supreme Courtin United States History 469 (rev. ed.1926)(internal quotation marks omitted). TheFirst Congress instituted the practice ofbeginning its legislative sessions with aprayer. Marsh v. Chambers, 463 U.S.783, 787–788, 103 S.Ct. 3330, 77 L.Ed.2d1019 (1983). The same week that Con-gress submitted the Establishment Clauseas part of the Bill of Rights for ratificationby the States, it enacted legislation provid-ing for paid chaplains in the House andSenate. Id., at 788, 103 S.Ct. 3330. Theday after the First Amendment was pro-posed, the same Congress that had pro-posed it requested the President to pro-claim ‘‘ a day of public thanksgiving andprayer, to be observed, by acknowledging,with grateful hearts, the many signal fav-ours of Almighty God.’’ H.R. Jour., 1stCong., 1st Sess., 123 (1826 ed.); see alsoSen. Jour., 1st Sess., 88 (1820 ed.). Presi-dent Washington offered the first Thanks-giving Proclamation shortly thereafter, de-voting November 26, 1789, on behalf of theAmerican people ‘‘ ‘to the service of thatgreat and glorious Being who is the benef-icent author of all the good that was, thatis, or that will be,’ ’’ Van Orden v. Perry,post, 545 U.S., at 687, 125 S.Ct. at 2882,2005 WL 1500276, *22 (plurality opinion)


545 U.S. 888

(quoting President Washington’s firstThanksgiving Proclamation), thus begin-ning a tradition of offering gratitude toS 887God that continues today. See Wallacev. Jaffree, 472 U.S. 38, 100–103, 105 S.Ct.2479, 86 L.Ed.2d 29 (1985) (REHNQUIST,J., dissenting).1 The same Congress alsoreenacted the Northwest Territory Ordi-nance of 1787, 1 Stat. 50, Article III ofwhich provided: ‘‘Religion, morality, andknowledge, being necessary to good gov-ernment and the happiness of mankind,schools and the means of education shallforever be encouraged.’’ Id., at 52, n. (a).And of course the First Amendment itselfaccords religion (and no other manner ofbelief) special constitutional protection.

These actions of our First President andCongress and the Marshall Court were notidiosyncratic; they reflected the beliefs ofthe period. Those who wrote the Consti-tution believed that morality was essentialto the well-being of society and that en-couragement of religion was the best wayto foster morality. The ‘‘fact that theFounding Fathers believed devotedly thatthere was a God and that the unalienablerights of man were rooted in Him is clear-ly evidenced in their writings, from theMayflower Compact to the Constitutionitself.’’ School Dist. of Abington Town-ship v. Schempp, 374 U.S. 203, 213, 83S.Ct. 1560, 10 L.Ed.2d 844 (1963). SeeUnderkuffler–Freund, The Separation ofthe Religious and the Secular: A Founda-tional Challenge to First–Amendment The-ory, 36 Wm. & Mary L.Rev. 837, 896–918(1995). President Washington opened hisPresidency with a prayer, see InauguralAddresses of the Presidents of the UnitedStates 1, 2 (1989), and reminded his fellowcitizens at the conclusion of it that ‘‘reasonand experience both forbid us to expectthat National morality can prevail in exclu-

sion of religious principle,’’ Farewell Ad-dress (1796), reprinted in 35 Writings ofGeorge Washington 229 (J. Fitzpatricked.1940). President John Adams wrote tothe Massachusetts Militia, ‘‘we have nogovernment S 888armed with power capableof contending with human passions unbri-dled by morality and religionTTTT OurConstitution was made only for a moraland religious people. It is wholly inade-quate to the government of any other.’’Letter (Oct. 11, 1798), reprinted in 9Works of John Adams 229 (C. Adamsed.1971). Thomas Jefferson concluded hissecond inaugural address by inviting hisaudience to pray:

‘‘I shall need, too, the favor of that Be-ing in whose hands we are, who led ourfathers, as Israel of old, from their na-tive land and planted them in a countryflowing with all the necessaries and com-forts of life; who has covered our infan-cy with His providence and our riperyears with His wisdom and power and towhose goodness I ask you to join insupplications with me that He will soenlighten the minds of your servants,guide their councils, and prosper theirmeasures that whatsoever they do shallresult in your good, and shall secure toyou the peace, friendship, and approba-tion of all nations.’’ Inaugural Address-es of the Presidents of the UnitedStates, at 18, 22–23.

James Madison, in his first inaugural ad-dress, likewise placed his confidence ‘‘inthe guardianship and guidance of that Al-mighty Being whose power regulates thedestiny of nations, whose blessings havebeen so conspicuously dispensed to thisrising Republic, and to whom we arebound to address our devout gratitude forthe past, as well as our fervent supplica-

1. See, e.g., President’s Thanksgiving Day 2004Proclamation (Nov. 23, 2004), availableat http://www.whitehouse.gov/news/releases/

2004/11/20041123–4.html (all Internet mate-rials as visited June 24, 2005, and available inClerk of Court’s case file).


tions and best hopes for the future.’’ Id.,at 25, 28.

Nor have the views of our people on thismatter significantly changed. Presidentscontinue to conclude the Presidential oathwith the words ‘‘so help me God.’’ Ourlegislatures, state and national, continue toopen their sessions with prayer led byofficial chaplains. The sessions of thisCourt continue to open with the prayer‘‘God save the United States and this Hon-orable Court.’’ Invocation of the Almightyby our public figures, at all levels of gov-ernment, S 889remains commonplace. Ourcoinage bears the motto, ‘‘IN GOD WETRUST.’’ And our Pledge of Allegiancecontains the acknowledgment that we area Nation ‘‘under God.’’ As one of our Su-preme Court opinions rightly observed,‘‘We are a religious people whose institu-tions presuppose a Supreme Being.’’ Zo-rach v. Clauson, 343 U.S. 306, 313, 72 S.Ct.679, 96 L.Ed. 954 (1952), repeated withapproval in Lynch v. Donnelly, 465 U.S.668, 675, 104 S.Ct. 1355, 79 L.Ed.2d 604(1984); Marsh, 463 U.S., at 792, 103 S.Ct.3330; Abington Township, supra, at 213,83 S.Ct. 1560.

With all of this reality (and much more)staring it in the face, how can the Courtpossibly assert that the ‘‘ ‘First Amend-ment mandates governmental neutralitybetween TTT religion and nonreligion,’ ’’ante, at 2733, and that ‘‘[m]anifesting apurpose to favor TTT adherence to religiongenerally,’’ ibid., is unconstitutional? Whosays so? Surely not the words of theConstitution. Surely not the history andtraditions that reflect our society’s con-

stant understanding of those words.Surely not even the current sense of oursociety, recently reflected in an Act ofCongress adopted unanimously by theSenate and with only five nays in theHouse of Representatives, see 148 Cong.Rec. 12041 (June 28, 2002); id., at 19518(Oct. 8, 2002), criticizing a Court of Ap-peals opinion that had held ‘‘under God’’ inthe Pledge of Allegiance unconstitutional.See Act of Nov. 13, 2002, §§ 1(9), 2(a),3(a), 116 Stat.2057, 2058, 2060–2061 (reaf-firming the Pledge of Allegiance and theNational Motto (‘‘In God We Trust’’) andstating that the Pledge of Allegiance is‘‘clearly consistent with the text and intentof the Constitution’’). Nothing stands be-hind the Court’s assertion that govern-mental affirmation of the society’s belief inGod is unconstitutional except the Court’sown say-so, citing as support only the un-substantiated say-so of earlier Courts go-ing back no further than the mid–20thcentury. See ante, at 2733, citing Corpo-ration of Presiding Bishop of Church ofJesus Christ of Latter—day Saints v.Amos, 483 U.S. 327, 335, 107 S.Ct. 2862,97 L.Ed.2d 273 (1987), in turn citing Lem-on v. Kurtzman, 403 U.S. 602, 612, 91S.Ct. 2105, 29 L.Ed.2d 745 (1971), inS 890turn citing Board of Ed. of CentralSchool Dist. No. 1 v. Allen, 392 U.S. 236,243, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968),in turn quoting Abington Township, 374U.S., at 222, 83 S.Ct. 1560, in turn citingEverson v. Board of Ed. of Ewing, 330U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711(1947).2 And it is, moreover, a thoroughlydiscredited say-so. It is discredited, to

2. The fountainhead of this jurisprudence, Ev-erson v. Board of Ed. of Ewing, based itsdictum that ‘‘[n]either a state nor the FederalGovernment TTT can pass laws which TTT aidall religions,’’ 330 U.S., at 15, 67 S.Ct. 504,on a review of historical evidence that fo-cused on the debate leading up to the passageof the Virginia Bill for Religious Liberty, see

id., at 11–13, 67 S.Ct. 504. A prominentcommentator of the time remarked (after athorough review of the evidence himself) thatit appeared the Court had been ‘‘sold TTT abill of goods.’’ Corwin, The Supreme Courtas National School Board, 14 Law & Con-temp. Prob. 3, 16 (1949).


545 U.S. 892

begin with, because a majority of the Jus-tices on the current Court (including atleast one Member of today’s majority)have, in separate opinions, repudiated thebrain-spun ‘‘Lemon test’’ that embodiesthe supposed principle of neutrality be-tween religion and irreligion. See Lamb’sChapel v. Center Moriches Union FreeSchool Dist., 508 U.S. 384, 398–399, 113S.Ct. 2141, 124 L.Ed.2d 352 (1993) (SCA-LIA, J., concurring in judgment) (collect-ing criticism of Lemon); Van Orden, post,545 U.S., at 692–693, 125 S.Ct., at 2865,2867 (THOMAS, J., concurring); Board ofEd. of Kiryas Joel Village School Dist. v.Grumet, 512 U.S. 687, 720, 114 S.Ct. 2481,129 L.Ed.2d 546 (1994) (O’CONNOR, J.,concurring in part and concurring in judg-ment); County of Allegheny v. AmericanCivil Liberties Union, Greater PittsburghChapter, 492 U.S. 573, 655–656, 672–673,109 S.Ct. 3086, 106 L.Ed.2d 472 (1989)(KENNEDY, J., concurring in judgmentin part and dissenting in part); Wallace,472 U.S., at 112, 105 S.Ct. 2479 (REHN-QUIST, J., dissenting); see also Commit-tee for Public Ed. and Religious Liberty v.Regan, 444 U.S. 646, 671, 100 S.Ct. 840, 63L.Ed.2d 94 (1980) (STEVENS, J., dissent-ing) (disparaging ‘‘the sisyphean task oftrying to patch together the ‘blurred, in-distinct, and variable barrier’ described inLemon ’’). And it is discredited becausethe Court has not had the courage (or thefoolhardiness) to apply the neutrality prin-ciple consistently.

What distinguishes the rule of law fromthe dictatorship of a shifting SupremeCourt majority is the absolutely indisSpens-able891 requirement that judicial opinionsbe grounded in consistently applied princi-ple. That is what prevents judges fromruling now this way, now that—thumbs upor thumbs down—as their personal prefer-ences dictate. Today’s opinion forthright-ly (or actually, somewhat less than forth-rightly) admits that it does not rest uponconsistently applied principle. In a re-

vealing footnote, ante, at 2733, n. 10, theCourt acknowledges that the ‘‘Establish-ment Clause doctrine’’ it purports to beapplying ‘‘lacks the comfort of categoricalabsolutes.’’ What the Court means by thislovely euphemism is that sometimes theCourt chooses to decide cases on the prin-ciple that government cannot favor reli-gion, and sometimes it does not. Thefootnote goes on to say that ‘‘[i]n specialinstances we have found good reason’’ todispense with the principle, but ‘‘[n]o suchreasons present themselves here.’’ Ibid.It does not identify all of those ‘‘specialinstances,’’ much less identify the ‘‘goodreason’’ for their existence.

I have cataloged elsewhere the varietyof circumstances in which this Court—even after its embrace of Lemon’s statedprohibition of such behavior—has ap-proved government action ‘‘undertakenwith the specific intention of improving theposition of religion,’’ Edwards v. Aguil-lard, 482 U.S. 578, 616, 107 S.Ct. 2573, 96L.Ed.2d 510 (1987) (SCALIA, J., dissent-ing). See id., at 616–618, 107 S.Ct. 2573.Suffice it to say here that when the gov-ernment relieves churches from the obli-gation to pay property taxes, when it al-lows students to absent themselves frompublic school to take religious classes, andwhen it exempts religious organizationsfrom generally applicable prohibitions ofreligious discrimination, it surely means tobestow a benefit on religious practice—butwe have approved it. See Amos, supra, at338, 107 S.Ct. 2862 (exemption from feder-al prohibition of religious discrimination byemployers); Walz v. Tax Comm’n of Cityof New York, 397 U.S. 664, 673, 90 S.Ct.1409, 25 L.Ed.2d 697 (1970) (property taxexemption for church property); Zorach,supra, at 308, 315, 72 S.Ct. 679 (law per-mitting students to leave public school forthe purpose of S 892receiving religious edu-cation). Indeed, we have even approved


(post-Lemon) government-led prayer toGod. In Marsh v. Chambers, the Courtupheld the Nebraska State Legislature’spractice of paying a chaplain to lead it inprayer at the opening of legislative ses-sions. The Court explained that ‘‘[t]o in-voke Divine guidance on a public bodyentrusted with making the laws is not TTT

an ‘establishment’ of religion or a steptoward establishment; it is simply a toler-able acknowledgment of beliefs widely heldamong the people of this country.’’ 463U.S., at 792, 103 S.Ct. 3330. (Why, onewonders, is not respect for the Ten Com-mandments a tolerable acknowledgment ofbeliefs widely held among the people ofthis country?)

The only ‘‘good reason’’ for ignoring theneutrality principle set forth in any ofthese cases was the antiquity of the prac-tice at issue. See id., at 786–792, 794, 103S.Ct. 3330; Walz, supra, at 676–680, 90S.Ct. 1409. That would be a good reasonfor finding the neutrality principle a mis-taken interpretation of the Constitution,but it is hardly a good reason for letting anunconstitutional practice continue. We didnot hide behind that reason in Reynolds v.Sims, 377 U.S. 533, 84 S.Ct. 1362, 12L.Ed.2d 506 (1964), which found unconsti-tutional bicameral state legislatures of asort that had existed since the beginningof the Republic. And almost monthly, itseems, the Court has not shrunk frominvalidating aspects of criminal procedureand penology of similar vintage. See, e.g.,Deck v. Missouri, 544 U.S. 622, 633, 125S.Ct. 2007, 2014–2015, 161 L.Ed.2d 953,2005 WL 1200394 (2005) (invalidating prac-tice of shackling defendants absent ‘‘spe-cial circumstances’’); id., at 641–645, 125S.Ct., at 2020–2022 (THOMAS, J., dissent-ing); Roper v. Simmons, 543 U.S. 551,568, 125 S.Ct. 1183, 1194–1195, 161L.Ed.2d 1, 2005 WL 464890 (2005) (invali-dating practice of executing under–18–year–old offenders); id., at 611, n. 2, 125

S.Ct., at 2018 n. 2, (SCALIA, J., dissent-ing). What, then, could be the genuine‘‘good reason’’ for occasionally ignoring theneutrality principle? I suggest it is theinstinct for self-preservation, and the rec-ognition that the Court, which ‘‘has noinfluence over either the sword or thepurse,’’ The Federalist No. 78, p. 412 (J.Pole ed.2005) (A. Hamilton), cannot goS 893too far down the road of an enforcedneutrality that contradicts both historicalfact and current practice without losing allthat sustains it: the willingness of thepeople to accept its interpretation of theConstitution as definitive, in preference tothe contrary interpretation of the demo-cratically elected branches.

Besides appealing to the demonstrablyfalse principle that the government cannotfavor religion over irreligion, today’s opin-ion suggests that the posting of the TenCommandments violates the principle thatthe government cannot favor one religionover another. See ante, at 2738; see alsoVan Orden, post, 545 U.S., at 717–718,125 S.Ct. at 2879 (STEVENS, J., dissent-ing). That is indeed a valid principlewhere public aid or assistance to religionis concerned, see Zelman v. Simmons–Harris, 536 U.S. 639, 652, 122 S.Ct. 2460,153 L.Ed.2d 604 (2002), or where the freeexercise of religion is at issue, Church ofLukumi Babalu Aye, Inc. v. Hialeah, 508U.S. 520, 532–533, 113 S.Ct. 2217, 124L.Ed.2d 472 (1993); id., at 557–558, 113S.Ct. 2217 (SCALIA, J., concurring inpart and concurring in judgment), but itnecessarily applies in a more limitedsense to public acknowledgment of theCreator. If religion in the public forumhad to be entirely nondenominational,there could be no religion in the publicforum at all. One cannot say the word‘‘God,’’ or ‘‘the Almighty,’’ one cannot of-fer public supplication or thanksgiving,without contradicting the beliefs of some


545 U.S. 895

people that there are many gods, or thatGod or the gods pay no attention to hu-man affairs. With respect to public ac-knowledgment of religious belief, it is en-tirely clear from our Nation’s historicalpractices that the Establishment Clausepermits this disregard of polytheists andbelievers in unconcerned deities, just as itpermits the disregard of devout atheists.The Thanksgiving Proclamation issued byGeorge Washington at the instance of theFirst Congress was scrupulously nonde-nominational—but it was monotheistic.3

In Marsh v. S 894Chambers, supra, we saidthat the fact the particular prayers of-fered in the Nebraska Legislature were‘‘in the Judeo–Christian tradition,’’ id., at793, 103 S.Ct. 3330, posed no additionalproblem, because ‘‘there is no indicationthat the prayer opportunity has been ex-ploited to proselytize or advance any one,or to disparage any other, faith or belief,’’id., at 794–795, 103 S.Ct. 3330.

Historical practices thus demonstratethat there is a distance between the ac-knowledgment of a single Creator and theestablishment of a religion. The former is,as Marsh v. Chambers put it, ‘‘a tolerableacknowledgment of beliefs widely heldamong the people of this country.’’ Id., at792, 103 S.Ct. 3330. The three most popu-lar religions in the United States, Chris-tianity, Judaism, and Islam—which com-

bined account for 97.7% of all believers—are monotheistic. See U.S. Dept. of Com-merce, Bureau of Census, Statistical Ab-stract of the United States: 2004–2005, p.55 (124th ed. 2004) (Table No. 67). All ofthem, moreover (Islam included), believethat the Ten Commandments were givenby God to Moses, and are divine prescrip-tions for a virtuous life. See 13 Ency-clopedia of Religion 9074 (2d ed.2005); TheQur’an 104 (M. Haleem transl.2004). Pub-licly honoring the Ten Commandments isthus indistinguishable, insofar as discrimi-nating against other religions is concerned,from publicly honoring God. Both practicesare recognized across such a broad anddiverse range of the population—fromChristians to Muslims—that they cannotbe reasonably understood as a governmentendorsement of a particular religious view-point.4

S 895B

A few remarks are necessary in re-sponse to the criticism of this dissent bythe Court, as well as Justice STEVENS’criticism in the related case of Van Ordenv. Perry, post, 545 U.S. 677, 707, 125 S.Ct.2854, 2873–2874. Justice STEVENS’ writ-ing is largely devoted to an attack upon astraw man. ‘‘[R]eliance on early religiousproclamations and statements made by theFounders is TTT problematic,’’ he says,‘‘because those views were not espoused at

3. The Court thinks it ‘‘surpris[ing]’’ and ‘‘trulyTTT remarkable’’ to believe that ‘‘the deity theFramers had in mind’’ (presumably in all theinstances of invocation of the deity I havecited) ‘‘was the God of monotheism.’’ Ante,at 2744–2745. This reaction would be morecomprehensible if the Court could suggestwhat other God (in the singular, and with acapital G) there is, other than ‘‘the God ofmonotheism.’’ This is not necessarily theChristian God (though if it were, one wouldexpect Christ regularly to be invoked, whichHe is not); but it is inescapably the God ofmonotheism.

4. This is not to say that a display of the TenCommandments could never constitute an im-permissible endorsement of a particular reli-gious view. The Establishment Clause wouldprohibit, for example, governmental endorse-ment of a particular version of the Decalogueas authoritative. Here the display of the TenCommandments alongside eight secular docu-ments, and the plaque’s explanation for theirinclusion, make clear that they were not post-ed to take sides in a theological dispute.


the Constitutional Convention in 1787 norenshrined in the Constitution’s text.’’ VanOrden, post, 545 U.S., at 724, 125 S.Ct., at2882, 2005 WL 1500276, at *22 (dissentingopinion) (footnote omitted). But I havenot relied upon (as he and the Court inthis case do) mere ‘‘proclamations andstatements’’ of the Founders. I have re-lied primarily upon official acts and officialproclamations of the United States or ofthe component branches of its Govern-ment, including the First Congress’s be-ginning of the tradition of legislative pray-er to God, its appointment of congressionalchaplains, its legislative proposal of aThanksgiving Proclamation, and its reen-actment of the Northwest Territory Ordi-nance; our first President’s issuance of aThanksgiving Proclamation; and invoca-tion of God at the opening of sessions ofthe Supreme Court. The only mere ‘‘proc-lamations and statements’’ of the FoundersI have relied upon were statements ofFounders who occupied federal office, andspoke in at least a quasi-official capacity—Washington’s prayer at the opening of hisPresidency and his Farewell Address,President John Adams’ letter to the Mas-sachusetts Militia, and Jefferson’s andMadison’s inaugural addresses. TheCourt and Justice STEVENS, by contrast,appeal to no official or even quasi-officialaction in support of their view of the Es-tablishment Clause—only James Madi-son’s Memorial and Remonstrance AgainstReligious Assessments, written before theFederal Constitution had even been pro-posed, S 896two letters written by Madisonlong after he was President, and the quasi-official inaction of Thomas Jefferson inrefusing to issue a Thanksgiving Proclama-tion. See ante, at 2743–2744; Van Orden,post, 545 U.S., at 724–25, 125 S.Ct., at 2884

(STEVENS, J., dissenting). The MadisonMemorial and Remonstrance, dealing as itdoes with enforced contribution to religionrather than public acknowledgment of God,is irrelevant; one of the letters is utterlyambiguous as to the point at issue here,and should not be read to contradict Madi-son’s statements in his first inaugural ad-dress, quoted earlier; even the other letterdoes not disapprove public acknowledg-ment of God, unless one posits (what Madi-son’s own actions as President would con-tradict) that reference to God contradicts‘‘the equality of all religious sects.’’ SeeLetter from James Madison to EdwardLivingston (July 10, 1822), in 5 The Found-ers’ Constitution 105–106 (P. Kurland & R.Lerner eds.1987). And as to Jefferson:The notoriously self-contradicting Jeffer-son did not choose to have his nonauthor-ship of a Thanksgiving Proclamation in-scribed on his tombstone. What he didhave inscribed was his authorship of theVirginia Statute for Religious Freedom, agovernmental act which begins ‘‘Whereas,Almighty God hath created the mindfreeTTTT’’ Va.Code Ann. § 57–1 (Lexis2003).

It is no answer for Justice STEVENS tosay that the understanding that these offi-cial and quasi-official actions reflect wasnot ‘‘enshrined in the Constitution’s text.’’Van Orden, post, 545 U.S., at 724, 125S.Ct., at 2883 (dissenting opinion). TheEstablishment Clause, upon which JusticeSTEVENS would rely, was enshrined inthe Constitution’s text, and these officialactions show what it meant. There weredoubtless some who thought it should havea broader meaning, but those views wereplainly rejected. Justice STEVENS saysthat reliance on these actions is ‘‘bound topaint a misleading picture,’’ ibid., but it ishard to see why. What is more probativeof the meaning of the EstablishmentClause than the actions of S 897the very Con-


545 U.S. 898

gress that proposed it, and of the firstPresident charged with observing it?

Justice STEVENS also appeals to theundoubted fact that some in the foundinggeneration thought that the ReligionClauses of the First Amendment shouldhave a narrower meaning, protecting onlythe Christian religion or perhaps onlyProtestantism. See Van Orden, post, 545U.S., at 725–728, 125 S.Ct., at 2884–2885.I am at a loss to see how this helps hiscase, except by providing a cloud of obfus-cating smoke. (Since most thought theClause permitted government invocation ofmonotheism, and some others thought itpermitted government invocation of Chris-tianity, he proposes that it be construednot to permit any government invocationof religion at all.) At any rate, thosenarrower views of the EstablishmentClause were as clearly rejected as themore expansive ones. Washington’s FirstThanksgiving Proclamation is merely anexample. All of the actions of Washingtonand the First Congress upon which I haverelied, virtually all Thanksgiving Procla-mations throughout our history,5 and allthe other examples of our Government’sfavoring religion that I have cited, haveinvoked God, but not Jesus Christ.6 Rath-er than relying S 898upon Justice STEVENS’assurance that ‘‘[t]he original understand-ing of the type of ‘religion’ that qualified

for constitutional protection under the Es-tablishment Clause likely did not includeTTT followers of Judaism and Islam,’’ VanOrden, post, 545 U.S., at 728, 125 S.Ct., at2886, 2005 WL 1500276, at *24; see alsoante, at 2745, I would prefer to take theword of George Washington, who, in hisfamous Letter to the Hebrew Congrega-tion of Newport, Rhode Island, wrote:

‘‘All possess alike liberty of conscienceand immunities of citizenship. It is nowno more that toleration is spoken of, asif it was by the indulgence of one classof people, that another enjoyed the exer-cise of their inherent natural rights.’’ 6The Papers of George Washington,Presidential Series 285 (D. Twohiged.1996).

The letter concluded, by the way, with aninvocation of the one God:

‘‘May the father of all mercies scatterlight and not darkness in our paths, andmake us all in our several vocationsuseful here, and in his own due time andway everlastingly happy.’’ Ibid.

Justice STEVENS says that if one isserious about following the original under-standing of the Establishment Clause, hemust repudiate its incorporation into theFourteenth Amendment, and hold that it

5. The two exceptions are the March 23, 1798,proclamation of John Adams, which asks God‘‘freely to remit all our offenses’’ ‘‘through theRedeemer of the World,’’ http://www.pilgrimhall.org/ThanxProc1789.htm, and theNovember 17, 1972, proclamation of RichardNixon, which stated, ‘‘From Moses at the RedSea to Jesus preparing to feed the multitudes,the Scriptures summon us to words anddeeds of gratitude, even before divine bless-ings are fully perceived,’’ Presidential Procla-mation No. 4170, 37 Fed.Reg. 24647 (1972).

6. Justice STEVENS finds that Presidential in-augural and farewell speeches (which are theonly speeches upon which I have relied) do

not violate the Establishment Clause only be-cause everyone knows that they express thepersonal religious views of the speaker, andnot government policy. See Van Orden v.Perry, post, 545 U.S., at 723, 125 S.Ct., at2883 (dissenting opinion). This is a peculiarstance for one who has voted that a student-led invocation at a high school football gameand a rabbi-led invocation at a high schoolgraduation did constitute the sort of govern-mental endorsement of religion that the Es-tablishment Clause forbids. See Santa Fe In-dependent School Dist. v. Doe, 530 U.S. 290,120 S.Ct. 2266, 147 L.Ed.2d 295 (2000); Leev. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120L.Ed.2d 467 (1992).


does not apply against the States. SeeVan Orden, post, 545 U.S., at 729–731, 125S.Ct., at 2887–2888 (dissenting opinion).This is more smoke. Justice STEVENSdid not feel that way last Term, when hejoined an opinion insisting upon the origi-nal meaning of the Confrontation Clause,but nonetheless applying it against theState of Washington. See Crawford v.Washington, 541 U.S. 36, 124 S.Ct. 1354,158 L.Ed.2d 177 (2004). The notion thatincorporation empties the incorporatedprovisions of their original meaning has nosupport in either reason or precedent.

S 899Justice STEVENS argues that origi-nal meaning should not be the touchstoneanyway, but that we should rather ‘‘ex-poun[d] the meaning of constitutional pro-visions with one eye toward our Nation’shistory and the other fixed on its demo-cratic aspirations.’’ Van Orden, post, 545U.S., at 732, 125 S.Ct., at 2888–2889 (dis-senting opinion). This is not the place todebate the merits of the ‘‘living Constitu-tion,’’ though I must observe that JusticeSTEVENS’ quotation from McCulloch v.Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579(1819), refutes rather than supports thatapproach.7 Even assuming, however, thatthe meaning of the Constitution ought tochange according to ‘‘democratic aspira-tions,’’ why are those aspirations to befound in Justices’ notions of what the Es-tablishment Clause ought to mean, ratherthan in the democratically adopted disposi-tions of our current society? As I haveobserved above, numerous provisions ofour laws and numerous continuing prac-tices of our people demonstrate that the

government’s invocation of God (and hencethe government’s invocation of the TenCommandments) is unobjectionable—in-cluding a statute enacted by Congress al-most unanimously less than three yearsago, stating that ‘‘under God’’ in thePledge of Allegiance is constitutional, see116 Stat. 2058. To ignore all this is not togive effect to ‘‘democratic aspirations’’ butto frustrate them.

Finally, I must respond to Justice STE-VENS’ assertion that I would ‘‘marginal-iz[e] the belief systems of more than 7million Americans’’ who adhere to reli-gions that are not monotheistic. Van Or-den, post, 545 U.S., at 719, n. 18, 125S.Ct., at 2881, n. 18, 2005 WL 1500276, at*20 (dissenting opinion). Surely that is agross exaggeration. The beliefs of thosecitizens are entirely protected by the FreeExercise Clause, and by those aspects ofthe Establishment Clause that do not re-late to government acknowledgment ofthe Creator. Invocation of God despitetheir beliefs is permitted not because non-monotheistic religions cease to be reli-gions recognized by the Religion Clausesof the First S 900Amendment, but becausegovernmental invocation of God is not anestablishment. Justice STEVENS fails torecognize that in the context of public ac-knowledgments of God there are legiti-mate competing interests: On the onehand, the interest of that minority in notfeeling ‘‘excluded’’; but on the other, theinterest of the overwhelming majority ofreligious believers in being able to giveGod thanks and supplication as a people,and with respect to our national endeav-ors. Our national tradition has resolvedthat conflict in favor of the majority.8 It

7. See Scalia, Originalism: The Lesser Evil, 57Cincinnati L.Rev. 852–853 (1989).

8. Nothing so clearly demonstrates the utterinconsistency of our Establishment Clause ju-risprudence as Justice O’CONNOR’s stirringconcurrence in the present case. ‘‘[W]e do

not,’’ she says, ‘‘count heads before enforcingthe First Amendment.’’ Ante, at 2747. ButJustice O’CONNOR joined the opinion of theCourt in Marsh v. Chambers, 463 U.S. 783,103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983),which held legislative prayer to be ‘‘a tolera-


545 U.S. 902

is not for this Court to change a disposi-tion that accounts, many Americans think,for the phenomenon remarked upon in aquotation attributed to various authors,including Bismarck, but which I prefer toassociate with Charles de Gaulle: ‘‘Godwatches over little children, drunkards,and the United States of America.’’

II

As bad as the Lemon test is, it is worsefor the fact that, since its inception, itsseemingly simple mandates have been ma-nipulated to fit whatever result the Courtaimed to achieve. Today’s opinion is nodifferent. In two respects it modifiesLemon to ratchet up the Court’s hostilityto religion. First, the Court justifies in-quiry into legislative purpose, not as anend itself, but as a means to ascertain theappearance of the government action to an‘‘ ‘objective observer.’ ’’ Ante, at 2734.Because in the Court’s view the true dan-ger to be guarded against is that the ob-jective observer would feel like an ‘‘ ‘out-side[r] ’ ’’ or ‘‘ ‘not [a] full membe[r] of thepolitical community,’ ’’ its inquiry focusesnot on S 901the actual purpose of govern-ment action, but the ‘‘purpose apparentfrom government action.’’ Ante, at 2733.Under this approach, even if a governmentcould show that its actual purpose was notto advance religion, it would presumablyviolate the Constitution as long as theCourt’s objective observer would thinkotherwise. See Capitol Square Reviewand Advisory Bd. v. Pinette, 515 U.S. 753,776–777, 115 S.Ct. 2440, 132 L.Ed.2d 650(1995) (O’CONNOR, J., concurring in partand concurring in judgment) (stating that‘‘when the reasonable observer would viewa government practice as endorsing reli-gion, TTT it is our duty to hold the practice

invalid,’’ even if the law at issue was neu-tral and the benefit conferred on the reli-gious entity was incidental).

I have remarked before that it is an oddjurisprudence that bases the unconstitu-tionality of a government practice thatdoes not actually advance religion on thehopes of the government that it would doso. See Edwards, 482 U.S., at 639, 107S.Ct. 2573. But that oddity pales in com-parison to the one invited by today’s analy-sis: the legitimacy of a government actionwith a wholly secular effect would turn onthe misperception of an imaginary observ-er that the government officials behind theaction had the intent to advance religion.

Second, the Court replaces Lemon’s re-quirement that the government have ‘‘asecular TTT purpose,’’ 403 U.S., at 612, 91S.Ct. 2105 (emphasis added), with theheightened requirement that the secularpurpose ‘‘predominate’’ over any purposeto advance religion. Ante, at 2735–2736.The Court treats this extension as a natu-ral outgrowth of the longstanding require-ment that the government’s secular pur-pose not be a sham, but simple logic showsthe two to be unrelated. If the govern-ment’s proffered secular purpose is notgenuine, then the government has no secu-lar purpose at all. The new demand thatsecular purpose predominate contradictsLemon’s more limited requirement, andfinds no support in our cases. In all butone of the five cases in which this Courthas invalidated a government practice onthe basis of its purpose to S 902benefit reli-gion, it has first declared that the statutewas motivated entirely by the desire toadvance religion. See Santa Fe Indepen-dent School Dist. v. Doe, 530 U.S. 290,308–309, 120 S.Ct. 2266, 147 L.Ed.2d 295(2000) (dismissing the school district’s

ble acknowledgment of beliefs widely heldamong the people of this country.’’ Id., at

792, 103 S.Ct. 3330.


proffered secular purposes as shams);Wallace, 472 U.S., at 56, 105 S.Ct. 2479(finding ‘‘no secular purpose’’ (emphasis inoriginal)); Stone v. Graham, 449 U.S. 39,41, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980)(per curiam) (finding that ‘‘Kentucky’sstatute requiring the posting of the TenCommandments in public school rooms hasno secular legislative purpose’’ (emphasisadded)); Epperson v. Arkansas, 393 U.S.97, 107–109, 89 S.Ct. 266, 21 L.Ed.2d 228(1968). In Edwards, supra, the Court didsay that the state action was invalid be-cause its ‘‘primary’’ or ‘‘preeminent’’ pur-pose was to advance a particular religiousbelief, 482 U.S., at 590, 593, 594, 107 S.Ct.2573, but that statement was unnecessaryto the result, since the Court rejected theState’s only proffered secular purpose as asham. See id., at 589, 107 S.Ct. 2573.

I have urged that Lemon’s purposeprong be abandoned, because (as I havediscussed in Part I) even an exclusive pur-pose to foster or assist religious practice isnot necessarily invalidating. But today’sextension makes things even worse. Byshifting the focus of Lemon’s purposeprong from the search for a genuine, secu-lar motivation to the hunt for a predomi-nantly religious purpose, the Court con-verts what has in the past been a fairlylimited inquiry into a rigorous review ofthe full record.9 Those responsible for theS 903adoption of the Religion Clauses would

surely regard it as a bitter irony that thereligious values they designed those Claus-es to protect have now become so distaste-ful to this Court that if they constituteanything more than a subordinate motivefor government action they will invalidateit.

III

Even accepting the Court’s Lemon-based premises, the displays at issue herewere constitutional.

A

To any person who happened to walkdown the hallway of the McCreary or Pu-laski County Courthouse during the rough-ly nine months when the Foundations Dis-plays were exhibited, the displays musthave seemed unremarkable—if indeedthey were noticed at all. The walls of bothcourthouses were already lined with his-torical documents and other assorted por-traits; each Foundations Display was ex-hibited in the same format as these otherdisplays and nothing in the record sug-gests that either County took steps to giveit greater prominence.

Entitled ‘‘The Foundations of AmericanLaw and Government Display,’’ each dis-play consisted of nine equally sized docu-ments: the original version of the MagnaCarta, the Declaration of Independence,the Bill of Rights, the Star Spangled Ban-

9. The Court’s reflexive skepticism of the gov-ernment’s asserted secular purposes is flatlyinconsistent with the deferential approachtaken by our previous Establishment Clausecases. We have repeated many times that,where a court undertakes the sensitive task ofreviewing a government’s asserted purpose, itmust take the government at its word absentcompelling evidence to the contrary. See,e.g., Edwards v. Aguillard, 482 U.S. 578, 586,107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (stat-ing that ‘‘the Court is TTT deferential to aState’s articulation of a secular purpose,’’ un-less that purpose is insincere or a sham);

Mueller v. Allen, 463 U.S. 388, 394–395, 103S.Ct. 3062, 77 L.Ed.2d 721 (1983) (ascribingthe Court’s disinclination to invalidate gov-ernment practices under Lemon’s purposeprong to its ‘‘reluctance to attribute unconsti-tutional motives to the States, particularlywhen a plausible secular purpose for theState’s program may be discerned from theface of the statute’’); see also Wallace v. Jaf-free, 472 U.S. 38, 74, 105 S.Ct. 2479, 86L.Ed.2d 29 (1985) (O’CONNOR, J., concur-ring in judgment) (‘‘[T]he inquiry into thepurpose of the legislature TTT should be defer-ential and limited’’).


545 U.S. 905

ner, the Mayflower Compact of 1620, apicture of Lady Justice, the National Mot-to of the United States (‘‘In God WeTrust’’), the Preamble to the KentuckyConstitution, and the Ten Commandments.The displays did not emphasize any of thenine documents in any way: The frameholding the Ten Commandments was ofthe same size and had the S 904same appear-ance as that which held each of the otherdocuments. See 354 F.3d 438, 443 (C.A.62003).

Posted with the documents was aplaque, identifying the display, and ex-plaining that it ‘‘ ‘contains documents thatplayed a significant role in the foundationof our system of law and government.’ ’’Ibid. The explanation related to the TenCommandments was third in the list ofnine and did not serve to distinguish itfrom the other documents. It stated:

‘‘ ‘The Ten Commandments have pro-foundly influenced the formation ofWestern legal thought and the forma-tion of our country. That influence isclearly seen in the Declaration of Inde-pendence, which declared that, ‘‘Wehold these truths to be self-evident, thatall men are created equal, that they areendowed by their Creator with certainunalienable Rights, that among theseare Life, Liberty, and the pursuit ofHappiness.’’ The Ten Commandmentsprovide the moral background of theDeclaration of Independence and thefoundation of our legal tradition.’ ’’Ibid.

B

On its face, the Foundations Displaysmanifested the purely secular purpose thatthe Counties asserted before the DistrictCourt: ‘‘to display documents that playeda significant role in the foundation of oursystem of law and government.’’ Affidavitof Judge Jimmie Green in Support of De-fendants’ Opposition to Plaintiffs’ Motion

for Contempt or, in the Alternative, forSupplemental Preliminary Injunction inCiv. Action No. 99–507 (ED Ky.), p. 2, ¶ 4,App. 57. That the displays included theTen Commandments did not transformtheir apparent secular purpose into one ofimpermissible advocacy for Judeo–Chris-tian beliefs. Even an isolated display ofthe Decalogue conveys, at worst, ‘‘anequivocal message, perhaps of respect forJudaism, for religion in general, or forlaw.’’ Allegheny County, 492 U.S., at 652,109 S.Ct. 3086 (STEVENS, J.,S 905concurring in part and dissenting inpart). But when the Ten Commandmentsappear alongside other documents of secu-lar significance in a display devoted to thefoundations of American law and govern-ment, the context communicates that theTen Commandments are included, not toteach their binding nature as a religioustext, but to show their unique contributionto the development of the legal system.See id., at 652–653, 109 S.Ct. 3086. This isdoubly true when the display is introducedby a document that informs passersby thatit ‘‘ ‘contains documents that played a sig-nificant role in the foundation of our sys-tem of law and government.’ ’’ 354 F.3d,at 443.

The same result follows if the TenCommandments display is viewed in lightof the government practices that thisCourt has countenanced in the past. Theacknowledgment of the contribution thatreligion in general, and the Ten Com-mandments in particular, have made toour Nation’s legal and governmental heri-tage is surely no more of a step towardestablishment of religion than was thepractice of legislative prayer we approvedin Marsh v. Chambers, 463 U.S. 783, 103S.Ct. 3330, 77 L.Ed.2d 1019 (1983), and itseems to be on par with the inclusion of acreche or a menorah in a ‘‘Holiday’’ dis-play that incorporates other secular sym-bols, see Lynch v. Donnelly, 465 U.S., at679–680, 104 S.Ct. 1355; Allegheny Coun-ty, supra, at 621, 109 S.Ct. 3086 (Black-mun, J., concurring in part and dissenting


in part). The parallels between this caseand Marsh and Lynch are sufficientlycompelling that they ought to decide thiscase, even under the Court’s misguidedEstablishment Clause jurisprudence.10

S 906Acknowledgment of the contributionthat religion has made to our Nation’slegal and governmental heritage partakesof a centuries-old tradition. Members ofthis Court have themselves often detailedthe degree to which religious belief per-vaded the National Government during thefounding era. See Lynch, supra, at 674–678, 104 S.Ct. 1355; Marsh, supra, at 786–788, 103 S.Ct. 3330; Lee v. Weisman, 505U.S. 577, 633–636, 112 S.Ct. 2649, 120L.Ed.2d 467 (1992) (SCALIA, J., dissent-ing); Wallace, 472 U.S., at 100–106, 105S.Ct. 2479 (REHNQUIST, J., dissenting);Engel v. Vitale, 370 U.S. 421, 446–450, andn. 3, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962)(Stewart, J., dissenting). Display of theTen Commandments is well within themainstream of this practice of acknowledg-ment. Federal, state, and local govern-ments across the Nation have engaged insuch display.11 The Supreme Court Build-

ing itself includes depictions of Moses withthe Ten Commandments in the Courtroomand on the east pediment of the building,and symbols of the Ten Commandments‘‘adorn the metal gates lining the northand south sides of the Courtroom as wellas the doors leading into the Courtroom.’’Van Orden, post, 545 U.S., at 688, 125S.Ct., at 2861, 2005 WL 1500276, at *5(plurality opinion). Similar depictions ofthe Decalogue appear S 907on public build-ings and monuments throughout our Na-tion’s Capital. Post, 545 U.S., at 689, 125S.Ct., at 2861. The frequency of thesedisplays testifies to the popular under-standing that the Ten Commandments area foundation of the rule of law, and asymbol of the role that religion played, andcontinues to play, in our system of govern-ment.

Perhaps in recognition of the centralityof the Ten Commandments as a widelyrecognized symbol of religion in public life,the Court is at pains to dispel the impres-sion that its decision will require govern-ments across the country to sandblast theTen Commandments from the publicsquare. See ante, at 2741. The constitu-

10. The Court’s only response is that the inclu-sion of the Ten Commandments in a displayabout the foundations of American law re-flects ‘‘a purpose to [call on] citizens to act inprescribed ways as a personal response todivine authority,’’ in a way that legislativeprayer and the inclusion of a creche in aholiday display do not. See ante, at 2743, n.24. That might be true if the Commandmentswere displayed by themselves in a church, oreven in someone’s home. It seems to mepatently untrue—given the Decalogue’s ‘‘un-deniable historical meaning’’ as a symbol ofthe religious foundations of law, see Van Or-den, post, 545 U.S., at 690, 125 S.Ct., at 2863–2864 (plurality opinion)—when they are post-ed in a courthouse display of historical docu-ments. The observer would no more thinkhimself ‘‘called upon to act’’ in conformancewith the Commandments than he would thinkhimself called upon to think and act like Wil-liam Bradford because of the courthouseposting of the Mayflower Compact—especial-ly when he is told that the exhibit consists of

documents that contributed to American lawand government.

11. The significant number of cases involvingTen Commandments displays in the last twoyears suggests the breadth of their appear-ance. See, e.g., Books v. Elkhart County, 401F.3d 857, 858–859 (C.A.7 2005) (Ten Com-mandments included in a display identical tothe Foundations Display); Mercier v. Frater-nal Order of Eagles, 395 F.3d 693, 696 (C.A.72005) (Ten Commandments monument in citypark since 1965); Modrovich v. AlleghenyCounty, 385 F.3d 397, 399 (C.A.3 2004) (TenCommandments plaque, donated in 1918, onwall of Allegheny County Courthouse);Freethought Soc. of Greater Philadelphia v.Chester County, 334 F.3d 247, 249 (C.A.32003) (Ten Commandments plaque, donatedin 1920, on wall of Chester County Court-house); King v. Richmond County, 331 F.3d1271, 1273–1274 (C.A.11 2003) (Ten Com-mandments depicted in county seal since1872).


545 U.S. 909

tional problem, the Court says, is with theCounties’ purpose in erecting the Founda-tions Displays, not the displays them-selves. The Court adds in a footnote:‘‘One consequence of taking account of thepurpose underlying past actions is that thesame government action may be constitu-tional if taken in the first instance andunconstitutional if it has a sectarian heri-tage.’’ Ante, at 2737, n. 14.

This inconsistency may be explicable intheory, but I suspect that the ‘‘objectiveobserver’’ with whom the Court is so con-cerned will recognize its absurdity in prac-tice. By virtue of details familiar only tothe parties to litigation and their lawyers,McCreary and Pulaski Counties, Ken-tucky, and Rutherford County, Tennessee,have been ordered to remove the samedisplay that appears in courthouses fromMercer County, Kentucky, to ElkhartCounty, Indiana. Compare American Civ-il Liberties Union of Tenn. v. RutherfordCounty, 209 F.Supp.2d 799, 808–809(M.D.Tenn.2002) (holding FoundationsDisplay to be unconstitutional based onprior actions of county commission), withBooks v. Elkhart County, 401 F.3d 857,869 (C.A.7 2005) (sustaining FoundationsDisplay as ‘‘secular TTT in its purpose andeffect’’); American Civil Liberties Unionof Ky. v. Mercer County, 219 F.Supp.2d777, 787–789 (E.D.Ky.2002) (rejecting Es-tablishment Clause challenge to an identi-cal Foundations Display and distinguishingMcCreary County on the ground S 908thatthe County’s purpose had not been ‘‘taint-ed with any prior history’’). Displayserected in silence (and under the directionof good legal advice) are permissible, whilethose hung after discussion and debate aredeemed unconstitutional. Reduction of theEstablishment Clause to such minutiaetrivializes the Clause’s protection againstreligious establishment; indeed, it may in-flame religious passions by making the

passing comments of every governmentofficial the subject of endless litigation.

C

In any event, the Court’s conclusion thatthe Counties exhibited the FoundationsDisplays with the purpose of promotingreligion is doubtful. In the Court’s view,the impermissible motive was apparentfrom the initial displays of the Ten Com-mandments all by themselves: When thatoccurs, the Court says, ‘‘a religious objectis unmistakable.’’ Ante, at 2739. Surelythat cannot be. If, as discussed above, theCommandments have a proper place in ourcivic history, even placing them by them-selves can be civically motivated—especial-ly when they are placed, not in a school (asthey were in the Stone case upon whichthe Court places such reliance), but in acourthouse. Cf. Van Orden, post, 545U.S., at 701, 125 S.Ct., at 2869–2870(BREYER, J., concurring in judgment)(‘‘The circumstances surrounding the dis-play’s placement on the capitol groundsand its physical setting suggest that theState itself intended the TTT nonreligiousaspects of the tablets’ message to predomi-nate’’). And the fact that at the posting ofthe exhibit a clergyman was present isunremarkable (clergymen taking particu-lar pride in the role of the Ten Command-ments in our civic history); and even moreunremarkable the fact that the clergyman‘‘testified to the certainty of the existenceof God,’’ ante, at 2738.

The Court has in the past prohibitedgovernment actions that ‘‘proselytize oradvance any one, or TTT disparage anyother, faith or belief,’’ Marsh, 463 U.S., at794–795, 103 S.Ct. 3330, or that applysome level of coercion (though I and othershave disSagreed909 about the form that coer-cion must take), see, e.g., Lee v. Weisman,505 U.S., at 592, 112 S.Ct. 2649 (prayer athigh-school graduation invalid because of


‘‘subtle coercive pressure’’); id., at 642,112 S.Ct. 2649 (SCALIA, J., dissenting).The passive display of the Ten Command-ments, even standing alone, does not beginto do either. What Justice KENNEDYsaid of the creche in Allegheny County isequally true of the Counties’ original TenCommandments displays:

‘‘No one was compelled to observe orparticipate in any religious ceremony oractivity. [T]he count[ies] [did not] con-tribut[e] significant amounts of tax mon-ey to serve the cause of one religiousfaith. [The Ten Commandments] arepurely passive symbols of [the religiousfoundation for many of our laws andgovernmental institutions]. Passersbywho disagree with the message con-veyed by th[e] displays are free to ig-nore them, or even to turn their backs,just as they are free to do when theydisagree with any other form of govern-ment speech.’’ 492 U.S., at 664, 109S.Ct. 3086 (opinion concurring in judg-ment in part and dissenting in part).

Nor is it the case that a solo display of theTen Commandments advances any onefaith. They are assuredly a religious sym-bol, but they are not so closely associatedwith a single religious belief that theirdisplay can reasonably be understood aspreferring one religious sect over another.The Ten Commandments are recognizedby Judaism, Christianity, and Islam alikeas divinely given. See 13 Encyclopedia ofReligion 9074 (2d ed.2005).12

S 910The Court also points to the Counties’second displays, which featured a numberof statements in historical documents re-flecting a religious influence, and the reso-lutions that accompanied their erection, asevidence of an impermissible religious pur-pose.13 In the Court’s view, ‘‘[t]he [sec-ond] display’s unstinting focus TTT on reli-gious passages, show[s] that the Countieswere posting the Commandments preciselybecause of their sectarian content.’’ Ante,at 2739. No, all it necessarily shows isthat the exhibit was meant to focus uponthe historic role of religious belief in our

12. Because there are interpretational differ-ences between faiths and within faiths con-cerning the meaning and perhaps even thetext of the Commandments, Justice STEVENSmaintains that any display of the text of theTen Commandments is impermissible becauseit ‘‘invariably places the [government] at thecenter of a serious sectarian dispute.’’ VanOrden, post, 545 U.S., at 718–719, 125 S.Ct.,at 2880 (dissenting opinion). I think not.The sectarian dispute regarding text, if seri-ous, is not widely known. I doubt that mostreligious adherents are even aware that thereare competing versions with doctrinal conse-quences (I certainly was not). In any event,the context of the display here could not con-ceivably cause the viewer to believe that thegovernment was taking sides in a doctrinalcontroversy.

13. Posted less than a month after respondentsfiled suit, the second displays included anexcerpt from the Declaration of Indepen-dence, the Preamble to the Kentucky Consti-tution, a page from the Congressional Record

declaring 1983 to be the Year of the Bible andthe proclamation of President Reagan statingthe same, a proclamation of President Lincolndesignating April 30, 1863, as a National Dayof Prayer and Humiliation, an excerpt fromLincoln’s ‘‘Reply to Loyal Colored People ofBaltimore upon Presentation of a Bible’’ stat-ing that ‘‘[t]he Bible is the best gift God hasever given to man,’’ and the Mayflower Com-pact. 96 F.Supp.2d 679, 684 (E.D.Ky.2000)(internal quotation marks omitted). TheCounties erected the displays in accordancewith a resolution passed by their legislativebodies, authorizing the County–Judge Execu-tives ‘‘to read or post the Ten Commandmentsas the precedent legal code upon which thecivil and criminal codes of the Common-wealth of Kentucky are founded,’’ and to dis-play alongside the Ten Commandments cop-ies of the documents listed above ‘‘withoutcensorship because of any Christian or reli-gious references in these writings, documents,and historical records.’’ Def. Exh. 1 in Mem-orandum in Support of Defendants’ Motion to


545 U.S. 912

national life—which is entirely permissible.And the same can be said of the resolution.To forbid any government focus upon thisaspect of our history is to display whatJustice Goldberg called ‘‘untutored devo-tion to the concept of neutrality,’’ AbingtonTownship, 374 U.S., at 306, 83 S.Ct. 1560(concurring opinion), that would committhe Court (and the Nation) to a revisionistagenda of secularization.

S 911Turning at last to the displays actual-ly at issue in this case, the Court faults theCounties for not repealing the resolutionexpressing what the Court believes to bean impermissible intent. Under these cir-cumstances, the Court says, ‘‘[n]o reason-able observer could swallow the claim thatthe Counties had cast off the objective sounmistakable in the earlier displays.’’Ante, at 2740. Even were I to accept allthat the Court has said before, I would notagree with that assessment. To beginwith, of course, it is unlikely that a reason-able observer would even have been awareof the resolutions, so there would be noth-ing to ‘‘cast off.’’ The Court implies thatthe Counties may have been able to reme-dy the ‘‘taint’’ from the old resolutions byenacting a new one. See ante, at 2740.But that action would have been whollyunnecessary in light of the explanation

that the Counties included with the dis-plays themselves: A plaque next to thedocuments informed all who passed bythat each display ‘‘contains documents thatplayed a significant role in the foundationof our system of law and government.’’Additionally, there was no reason for theCounties to repeal or repudiate the resolu-tions adopted with the hanging of the sec-ond displays, since they related only to thesecond displays. After complying with theDistrict Court’s order to remove the sec-ond displays ‘‘immediately,’’ and erectingnew displays that in content and by ex-press assertion reflected a different pur-pose from that identified in the resolutions,the Counties had no reason to believe thattheir previous resolutions would bedeemed to be the basis for their actions.14

After the CounSties912 discovered that thesentiments expressed in the resolutionscould be attributed to their most recentdisplays (in oral argument before thisCourt), they repudiated them immediately.

In sum: The first displays did not neces-sarily evidence an intent to further reli-gious practice; nor did the second dis-plays, or the resolutions authorizing them;and there is in any event no basis forattributing whatever intent motivated the

Dismiss in Civ. Action No. 99–507, p. 1 (EDKy.) (hereinafter Def. Exh. 1).

14. Contrary to the Court’s suggestion, seeante, at 2740, n. 20, it is clear that the resolu-tions were closely tied to the second displays,but not to the third. Each of the documentsincluded in the second displays was author-ized by the resolutions, and those displays,consistent with the resolutions’ direction to‘‘post the Ten Commandments as the prece-dent legal code upon which the civil andcriminal codes of the Commonwealth of Ken-tucky are founded,’’ Def. Exh. 1, consisted ofa large copy of the Ten Commandmentsalongside much smaller framed copies of oth-er historical, religious documents. The thirddisplays, in contrast, included documents notmentioned in the resolutions (the Magna Car-

ta and a picture of Lady Justice) and did notinclude documents authorized by the resolu-tions (correspondence and proclamations ofAbraham Lincoln and the Resolution of Con-gress declaring 1983 to be the Year of theBible).

The resolutions also provided that theywere to be posted beside the displays that theyauthorized. Id., at 9. Yet respondents havenever suggested the resolutions were postednext to the third displays, and the recordbefore the Court indicates that they were not.The photos included in the Appendix showthat the third displays included 10 frames—the nine historical documents and the prefato-ry statement explaining the relevance of eachof the documents. See App. to Pet. for Cert.177a (McCreary County), 178a (Pulaski Coun-ty).


first and second displays to the third. Giv-en the presumption of regularity that al-ways accompanies our review of officialaction, see n. 9, supra, the Court has iden-tified no evidence of a purpose to advancereligion in a way that is inconsistent withour cases. The Court may well be correctin identifying the third displays as the fruitof a desire to display the Ten Command-ments, ante, at 2740, but neither our casesnor our history support its assertion thatsuch a desire renders the fruit poisonous.

* * *

For the foregoing reasons, I would re-verse the judgment of the Court of Ap-peals.

,

545 U.S. 913, 162 L.Ed.2d 781

METRO–GOLDWYN–MAYERSTUDIOS INC., et al.,

Petitioners,

v.

GROKSTER, LTD., et al.No. 04–480.

Argued March 29, 2005.

Decided June 27, 2005.

Background: Copyright holders includingsongwriters, music publishers, and motionpicture studios brought copyright infringe-ment action against distributors of peer-to-peer file sharing computer networkingsoftware. The United States District Courtfor the Central District of California, Ste-phen V. Wilson, J., 259 F.Supp.2d 1029,granted partial summary judgment in fa-vor of the distributors on issues of contrib-utory and vicarious infringement, andplaintiffs appealed. The United States

Court of Appeals for the Ninth Circuit, 380F.3d 1154, affirmed, and the SupremeCourt granted certiorari.

Holding: The Supreme Court, JusticeSouter, held that one who distributes adevice with the object of promoting its useto infringe copyright, as shown by clearexpression or other affirmative steps takento foster infringement, is liable for theresulting acts of infringement by third par-ties.

Vacated and remanded.

Justice Ginsburg filed concurring opinionin which Chief Justice Rehnquist and Jus-tice Kennedy joined.

Justice Breyer filed concurring opinion inwhich Justice Stevens and Justice O’Con-nor joined.

1. Copyrights and Intellectual PropertyO77

One infringes a copyright contribu-torily by intentionally inducing or encour-aging direct infringement and infringesvicariously by profiting from direct in-fringement while declining to exercise aright to stop or limit it.

2. Patents O259(1)

Under patent law’s traditional ‘‘staplearticle of commerce doctrine,’’ distributionof a component of a patented device willnot violate the patent if it is suitable foruse in other ways. 35 U.S.C.A. § 271(c).

See publication Words and Phras-es for other judicial constructionsand definitions.

3. Patents O227

One who makes and sells articleswhich are only adapted to be used in apatented combination will be presumed tointend the natural consequences of hisacts; he will be presumed, for purpose ofresulting infringement action, to intend

2722 125 supreme court reporter 545 u.s. 844 · 2722 125 supreme court reporter 545 u.s. 844 545...

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