McCreary County v. ACLU of Kentucky
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Introduction
The United States of America has been founded on the ideal of freedom, whether that be freedom of speech, the right to assembly, or the right to be tried by a jury of peers. The First Amendment of the Constitution guarantees the freedom to practice any religion. According to the Establishment Clause, the United States government shall “make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In other words, the United States government cannot establish an official religion or support one religion over another. McCreary County v. ACLU of Kentucky examines what it means for the government to establish or support a religion.
Facts
In 1999, after the McCreary County legislature had called for a display of the Ten Commandments, the county put a version of the Ten Commandments in its courthouse. Later that year, the American Civil Liberties Union of Kentucky (ACLU) sued, arguing that the county’s actions violated the First Amendment. The county proceeded to take down the display and put up a second display that featured the Ten Commandments with eight other abridged documents, including the “endowed by their creator” passage in the Declaration of Independence and the national motto “in God we trust.” Following a preliminary injunction from the District Court, McCreary County once again altered the display. This time the display was titled the “The Foundations of American Law and Government Display,” and it featured nine documents. These included the Ten Commandments, the Magna Carta, the Star-Spangled Banner’s lyrics, and the entire Declaration of Independence, as well as a passage highlighting the importance of the Ten Commandments to Western law.
Legal Background
In 1999, the ACLU sought to enjoin the third display and argued, again, that it violated the First Amendment because it was a government display promoting religion. The District Court, relying on Stone v. Graham, agreed that the focus on the Ten Commandments violated the Constitution and enjoined the display again. The Sixth Circuit affirmed the District Court’s opinion that all of the displays violated the Establishment Clause. The Circuit Court reasoned that in the first display, the Ten Commandments by itself was an inherent violation of the establishment clause; the second display was tailored to solely focus on religion; and for the third display, the Circuit Court, following the precedent of Stone v. Graham, decided that displaying the Ten Commandments in any context was inherently religious unless a secular message was included, which the county had failed to do. McCreary County petitioned for review and the Supreme Court agreed to hear the case.
Holding & Reasoning
In 2005, the Supreme Court ruled in a 5-4 decision that all forms of the McCreary County display violated the Establishment Clause of the First Amendment. Justice Souter wrote the opinion, joined by Justices Stevens, O’Connor, Ginsburg, and Breyer.
The majority relied on the three-part test established in Lemon v. Kurtzman, which states that an action violates the Establishment Clause unless (1) the action contains a secular purpose; (2) the primary effect of the action is not to aid or hurt religion; and (3) the action does not excessively entangle the government with religion. According to the Court, the first display failed the Lemon test because it did not contain any secular purpose.
The Supreme Court also determined that the second display violated the Establishment Clause because the other documents posted by the county solely referenced religion, and thereby demonstrated the county’s purpose of advocating for religion.
As for the third display, Justice Souter argued that the purported secular purpose “had to be genuine, not a sham,” and under the precedent set by Santa Fe Independent School District v. Doe, if the secular purpose was second to a religious purpose, it was still in violation of the Establishment Clause. The third display, which by itself may not have seemed religious, had a purpose of advancing religion because it did not exist by itself. Rather, it existed in the context of the first two displays, which were undoubtedly religious. Ultimately, the Court determined that, as Justice Souter suggested in oral argument, McCreary County had gone not “from a totally religious exercise to a secular exercise” but rather “from an obviously religious exercise to an obscured religious exercise.”
Justice Scalia, joined by Justices Rehnquist, Thomas, and Kennedy, dissented and raised objections to the Lemon test. Justice Scalia argued for the Court to abandon the Lemon test because the Court failed to apply it consistently. Justice Scalia relied on Zorach v. Clauson, which allowed schools to release students during school hours for religious reasons, and Congress’s affirmation that “under God” in the pledge of allegiance was constitutional.
The dissenting opinion also offered the argument that even under the Lemon test, the third display was constitutional. The first two displays, Justice Scalia argued, were in no way proof of the intent of the third display, and the constitutionality of the third display should not be affected by the unconstitutionality of the first two displays.[ Justice Scalia criticized the majority, arguing that “what distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.”
Analysis
The Supreme Court correctly decided the case based on Lemon v. Kurtzman, finding that the purported secular purpose must be genuine and not simply a way to legitimize a religious message. The intent behind the previous displays demonstrates a lack of genuine secular purpose. The County argues that the search for purpose is meaningless and simply the Court acting in a biased manner; that one can never find the true purpose of any action. But purpose has always been an important element to the Court’s decisions, especially in Establishment Clause cases. The Court ruling in McCreary County v. ACLU of Kentucky strengthened the example set forth by Lemon v. Kurtzman and put emphasis on the secular purpose doctrine.
Still, part of what Justice Scalia brought up in the dissenting opinion is thought-provoking. If the founding of the United States is inseparable from God, can the current United States be completely separate from a belief in God? The Declaration of Independence contains the phrase “their creator.” Immediately after the First Amendment was proposed, Congress urged the President to declare “a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many signal favours of Almighty God.” President Jefferson’s second inaugural address ends with “the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life.” The founding of the United States cannot be separated from religion. Additionally, religion continues to be an important part of American society today. The official motto of the United States of America is “in God we trust.” The same phrase is printed on most American currency. The presidents continue to end speeches with some variation of “God bless America.” Every president since George Washington has said “so help me God” after the constitutional oath.
Justice Scalia argues that the contradictions between the ruling of this case and Edwards v. Aguillard, where the court approved government action that specifically benefited religion after the adoption of the Lemon test, is due to the Court’s knowledge that it “cannot go too far down the road of an enforced neutrality that contradicts both historical fact and current practice without losing all that sustains it: the willingness of the people to accept its interpretation of the Constitution as definitive.” He argues that the Court is not an institution that decides true interpretations of the Constitution, based upon the nation’s founding or the precedent set by earlier Courts, but an institution that reflects the views of the people. John Jay’s Court in 1790 would not have ruled against McCreary County not because they lacked Lemon v. Kurtzman, but because the people of 1790 would have never agreed with that interpretation of the constitution. Justice Scalia argues that if the history and people of this country have not changed, neither should its stance on God.
These examples contradict the intention of the Establishment Clause. But this is not without precedent. The Declaration of Independence long pronounced that all men are equal and the Constitution gave people the Bill of Rights, yet slavery persisted in the United States until 1865. A contradiction between the ideals of the Constitution and practice has always been possible. America was a religious nation. America is a nation in contradiction between its ideals of secularism and its religious history.
Additionally, it can be argued that while the founding fathers were religious, the nation doesn’t have to be. After all, no religious views were “enshrined in the Constitution’s text.” The nation’s religious makeup has changed dramatically since its inception. In 1776, 98.1% of congregations were Protestant. Today, close to 30% of the country is not Christian. The country today is not the same as the country in 1776. As such, the Constitution cannot be interpreted in the same manner. In the words of Justice Marshall, “‘[W]e must never forget, that it is a constitution we are expounding’ that is intended to ‘endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.’” Per this idea, we can separate the religious nature of our founding from the more secular nature of our modern society, and as such, our Constitutional interpretation must adapt and reflect these changes.