354 F.3d 438, affirmed.
[ Souter ]
[ O’Connor ]
[ Scalia ]
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NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.




No. 03—1693.Argued March 2, 2005–Decided June 27, 2005

After petitioners, two Kentucky Counties, each posted large, readily visible copies of the Ten Commandments in their courthouses, respondents, the American Civil Liberties Union (ACLU) et al., sued under 42 U.S.C. § 1983 to enjoin the displays on the ground that they violated the First Amendment’s Establishment Clause. The Counties then adopted nearly identical resolutions calling for a more extensive exhibit meant to show that the Commandments are Kentucky’s “precedent legal code.” The resolutions noted several grounds for taking that position, including the state legislature’s acknowledgment of Christ as the “Prince of Ethics.” The displays around the Commandments were modified to include eight smaller, historical documents containing religious references as their sole common element, e.g., the Declaration of Independence’s “endowed by their Creator” passage. Entering a preliminary injunction, the District Court followed the Lemon v. Kurtzman, 403 U.S. 602, test to find, inter alia, that the original display lacked any secular purpose because the Commandments are a distinctly religious document, and that the second version lacked such a purpose because the Counties narrowly tailored their selection of foundational documents to those specifically referring to Christianity. After changing counsel, the Counties revised the exhibits again. No new resolution authorized the new exhibits, nor did the Counties repeal the resolutions that preceded the second one. The new posting, entitled “The Foundations of American Law and Government Display,” consists of nine framed documents of equal size. One sets out the Commandments explicitly identified as the “King James Version,” quotes them at greater length, and explains that they have profoundly influenced the formation of Western legal thought and this Nation. With the Commandments are framed copies of, e.g., the Star Spangled Banner’s lyrics and the Declaration of Independence, accompanied by statements about their historical and legal significance. On the ACLU’s motion, the District Court included this third display in the injunction despite the Counties’ professed intent to show that the Commandments were part of the foundation of American Law and Government and to educate County citizens as to the documents. The court took proclaiming the Commandments’ foundational value as a religious, rather than secular, purpose under Stone v. Graham, 449 U.S. 39, and found that the Counties’ asserted educational goals crumbled upon an examination of this litigation’s history. Affirming, the Sixth Circuit stressed that, under Stone, displaying the Commandments bespeaks a religious object unless they are integrated with a secular message. The court saw no integration here because of a lack of a demonstrated analytical or historical connection between the Commandments and the other documents.


1. A determination of the Counties’ purpose is a sound basis for ruling on the Establishment Clause complaints. The Counties’ objective may be dispositive of the constitutional enquiry. Pp. 10—19.

(a) Lem on’s “secular legislative purpose” enquiry, 403 U.S., at 612, has been a common, albeit seldom dispositive, element of this Court’s cases, Wallace v. Jaffree, 472 U.S. 38, 75. When the government acts with the ostensible and predominant purpose of advancing religion, it violates the central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides. Corporation of Presiding Bishop of Church of Jesus Christ of Latter&nbhyph;day Saints v. Amos, 483 U.S. 327, 335. A purpose to favor one faith over another, or adherence to religion generally, clashes with the “understanding … that liberty and social stability demand a … tolerance that respects the religious views of all citizens.” Zelman v. Simmons-Harris, 536 U.S. 639, 718. Pp. 11—12.

(b) The Court declines the Counties’ request to abandon Lemon’s purpose test. Their assertions that true “purpose” is unknowable, and its search merely an excuse for courts to act selectively and unpredictably in picking out evidence of subjective intent, are as seismic as they are unconvincing. Examination of purpose is a staple of statutory interpretation for every American appellate court, e.g., General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 600, and governmental purpose is a key element of a good deal of constitutional doctrine, e.g., Washington v. Davis, 426 U.S. 229. Scrutinizing purpose makes practical sense in Establishment Clause analysis, where an understanding of official objective emerges from readily discoverable fact set forth in a statute’s text, legislative history, and implementation or comparable official act. Wallace v. Jaffree, 472 U.S., at 73—74. Nor is there any indication that the purpose enquiry is rigged in practice to finding a religious purpose dominant every time a case is filed. Pp. 12—15.

(c) The Court also avoids the Counties’ alternative tack of trivializing the purpose enquiry. They would read the Court’s cases as if the enquiry were so naive that any transparent claim to secularity would satisfy it, and they would cut context out of the enquiry, to the point of ignoring history, no matter what bearing it actually had on the significance of current circumstances. There is no precedent for these arguments, or reason supporting them. Pp. 15—19.

&nb sp; (1) A legislature’s stated reasons will generally warrant the deference owed in the first instance to such official claims, but Lemon requires the secular purpose to be genuine, not a sham, and not merely secondary to a religious objective, see, e.g., Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 308. In those unusual cases where the claim was an apparent sham, or the secular purpose secondary, the unsurprising results have been findings of no adequate secular object, as against a predominantly religious one. See, e.g., Stone, supra, at 41. Pp. 15—17.

&nb sp; (2) The Counties’ argument that purpose in a case like this should be inferred only from the latest in a series of governmental actions, however close they may all be in time and subject, bucks common sense. Reasonable observers have reasonable memories, and the Court’s precedents sensibly forbid an observer “to turn a blind eye to the context in which [the] policy arose.” Santa Fe, supra, at 315. Pp. 17—19.

2. Evaluation of the Counties’ claim of secular purpose for the ultimate displays may take their evolution into account. The development of the presentation should be considered in determining its purpose. Pp. 19—26.

(a) Sto ne is the Court’s initial benchmark as its only case dealing with the constitutionality of displaying the Commandments. It recognized that the Commandments are an “instrument of religion” and that, at least on the facts before the Court, their text’s display could presumptively be understood as meant to advance religion: although state law specifically required their posting in classrooms, their isolated exhibition did not allow even for an argument that secular education explained their being there. 449 U.S., at 41, n. 3. But Stone did not purport to decide the constitutionality of every possible way the government might set out the Commandments, and under the Establishment Clause detail is key, County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 595. Hence, the Court looks to the record showing the progression leading up to the Commandments’ third display, beginning with the first. Pp. 19—20.

(b) There< I> are two obvious similarities between the display Stone rejected and the first one here: both set out the Commandments’ text as distinct from any traditionally symbolic representation like blank tablets, and each stood alone, not as part of an arguably secular display. Stone stressed the significance of integrating the Commandments into a secular scheme to forestall the broadcast of an otherwise clearly religious message, 449 U.S., at 42, and for good reason, the Commandments being a central point of reference in the religious and moral history of Jews and Christians. They proclaim the existence of a monotheistic god (no other gods), regulate details of religious obligation (no graven images, sabbath breaking, or vain oath swearing), and unmistakably rest even the universally accepted prohibitions (as against murder, theft, etc.) on the sanction of the divinity proclaimed at the text’s beginning. Displaying that text is thus different from symbolic representation, like tablets with 10 roman numerals, which could be seen as alluding to a general notion of law, not a sectarian conception of faith. Where the text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious point of view. The display in Stone had no such context, and the Counties’ solo exhibit here did nothing more to counter the sectarian implication than the Stone postings. The reasonable observer could only think that the Counties meant to emphasize and celebrate the Commandments’ religious message. Pp. 20—21.

(c) The Counties’ second display, unlike the first, did not hang the Commandments in isolation, but included the statement of the government’s purpose expressly set out in the county resolutions, and underscored it by juxtaposing the Commandments to other documents whose references to God were highlighted as their sole common element. The display’s unstinting focus was on religious passages, showing that the Counties posted the Commandments precisely because of their sectarian content. That demonstration of the government’s objective was enhanced by serial religious references and the accompanying resolutions’ claim about the embodiment of ethics in Christ. Together, the display and resolution presented an indisputable, and undisputed, showing of an impermissible purpose. Pp. 21—22.

(d) The lower courts’ conclusion that no legitimizing secular purpose prompted the Counties’ third display, the “Foundations of American Law and Government” exhibit, is amply justified. That display placed the Commandments in the company of other documents the Counties deemed especially significant in the historical foundation of American government. In trying to persuade the District Court to lift the preliminary injunction, the Counties cited several new purposes for the third version, including a desire to educate County citizens as to the significance of the documents displayed. The Counties’ claims, however, persuaded neither that court, which was intimately familiar with this litigation’s details, nor the Sixth Circuit. Where both lower courts were unable to discern an arguably valid secular purpose, this Court normally should hesitate to find one. Edwards v. Aguillard, 482 U.S. 578, 594. The Counties’ new statements of purpose were presented only as a litigating position, there being no further authorizing resolutions by the Counties’ governing boards. And although repeal of the earlier county authorizations would not have erased them from the record of evidence bearing on current purpose, the extraordinary resolutions for the second displays passed just months earlier were not repealed or otherwise repudiated. Indeed, the sectarian spirit of the resolutions found enhanced expression in the third display, which quoted more of the Commandment’s purely religious language than the first two displays had done. No reasonable observer, therefore, could accept the claim that the Counties had cast off the objective so unmistakable in the earlier displays. Nor did the selection of posted material suggest a clear theme that might prevail over evidence of the continuing religious object. For example, it is at least odd in a collection of documents said to be “foundational” to include a patriotic anthem, but to omit the Fourteenth Amendment, the most significant structural provision adopted since the original framing. An observer would probably suspect the Counties of reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality. Pp. 22—25.

(e) In holding that the preliminary injunction was adequately supported by evidence that the Counties’ purpose had not changed at the third stage, the Court does not decide that the Counties’ past actions forever taint any effort on their part to deal with the subject matter. The Court holds only that purpose is to be taken seriously under the Establishment Clause and is to be understood in light of context. District courts are fully capable of adjusting preliminary relief to take account of genuine changes in constitutionally significant conditions. Nor does the Court hold that a sacred text can never be integrated constitutionally into a governmental display on law or history. Its own courtroom frieze depicts Moses holding tablets exhibiting a portion of the secularly phrased Commandments; in the company of 17 other lawgivers, most of them secular figures, there is no risk that Moses would strike an observer as evidence that the National Government was violating religious neutrality. P. 26.

354 F.3d 438, affirmed.

Souter, J., delivered the opinion of the Court, in which Stevens, O’Connor, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed a concurring opinion. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined, and in which Kennedy, J., joined as to Parts II and III.