McCreary County v. American Civil Liberties Union of Ky.

(Slip Opinion) OCTOBER TERM, 2004 1

Syllabus

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.

SUPREME COURT OF THE UNITED STATES

Syllabus

MCCREARY COUNTY, KENTUCKY, ET AL. v. AMERI-
CAN CIVIL LIBERTIES UNION OF KENTUCKY ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT

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, re-
spondents, 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 Ken-
tucky’s “precedent legal code.” The resolutions noted several grounds
for taking that position, including the state legislature’s acknowl-
edgment 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Commandments were modified to include eight smaller, historical
documents containing religious references as their sole common ele-
ment, e.g., the Declaration of Independence’s “endowed by their Crea-
tor” 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 Com-
mandments 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 ex-
hibits 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
2 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES

UNION OF KY.

Syllabus

thought and this Nation. With the Commandments are framed cop-
ies 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 in-
cluded this third display in the injunction despite the Counties’ pro-
fessed intent to show that the Commandments were part of the foun-
dation of American Law and Government and to educate County
citizens as to the documents. The court took proclaiming the Com-
mandments’ 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 ob-
ject unless they are integrated with a secular message. The court
saw no integration here because of a lack of a demonstrated analyti-
cal or historical connection between the Commandments and the
other documents.
Held:
1. A determination of the Counties’ purpose is a sound basis for rul-
ing on the Establishment Clause complaints. The Counties’ objective
may be dispositive of the constitutional enquiry. Pp. 10–19.
(a) Lemon’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 govern-
ment 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-day Saints v. Amos, 483 U. S. 327,
335. A purpose to favor one faith over another, or adherence to relig-
ion 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 un-
predictably 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 constitu-
tional doctrine, e.g., Washington v. Davis, 426 U. S. 229. Scrutinizing
purpose makes practical sense in Establishment Clause analysis,
 Cite as: 545 U. S. ____ (2005) 3

Syllabus

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 trivial-
izing 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.
(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 Inde-
pendent 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 ade-
quate secular object, as against a predominantly religious one. See,
e.g., Stone, supra, at 41. Pp. 15–17.
(2) The Counties’ argument that purpose in a case like this
should be inferred only from the latest in a series of governmental ac-
tions, however close they may all be in time and subject, bucks com-
mon 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 ul-
timate displays may take their evolution into account. The develop-
ment of the presentation should be considered in determining its
purpose. Pp. 19–26.
(a) Stone is the Court’s initial benchmark as its only case dealing
with the constitutionality of displaying the Commandments. It rec-
ognized 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 iso-
lated exhibition did not allow even for an argument that secular edu-
cation 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
4 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Syllabus

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 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 dis-
play. Stone stressed the significance of integrating the Command-
ments 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 exis-
tence of a monotheistic god (no other gods), regulate details of reli-
gious obligation (no graven images, sabbath breaking, or vain oath
swearing), and unmistakably rest even the universally accepted pro-
hibitions (as against murder, theft, etc.) on the sanction of the divin-
ity 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 in-
sistence 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 rea-
sonable observer could only think that the Counties meant to empha-
size 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 docu-
ments whose references to God were highlighted as their sole com-
mon element. The display’s unstinting focus was on religious pas-
sages, 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 refer-
ences 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 pur-
pose prompted the Counties’ third display, the “Foundations of
American Law and Government” exhibit, is amply justified. That dis-
 Cite as: 545 U. S. ____ (2005) 5

Syllabus

play placed the Commandments in the company of other documents
the Counties deemed especially significant in the historical founda-
tion of American government. In trying to persuade the District Court
to lift the preliminary injunction, the Counties cited several new pur-
poses for the third version, including a desire to educate County citi-
zens 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 pur-
pose were presented only as a litigating position, there being no fur-
ther 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 reason-
able 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 Amend-
ment, 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 ac-
tions 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 re-
lief 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 his-
tory. Its own courtroom frieze depicts Moses holding tablets exhibit-
ing a portion of the secularly phrased Commandments; in the com-
pany of 17 other lawgivers, most of them secular figures, there is no
6 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Syllabus

risk that Moses would strike an observer as evidence that the Na-
tional 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.
 Cite as: 545 U. S. ____ (2005) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 03–1693
_________________

MCCREARY COUNTY, KENTUCKY, ET AL., PETI-
TIONERS v. AMERICAN CIVIL LIBERTIES
UNION OF KENTUCKY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 27, 2005]

JUSTICE SOUTER delivered the opinion of the Court.
Executives of two counties posted a version of the Ten
Commandments on the walls of their courthouses. After
suits were filed charging violations of the Establishment
Clause, the legislative body of each county adopted a
resolution calling for a more extensive exhibit meant to
show that the Commandments are Kentucky’s “precedent
legal code,” Def. Exh. 1 in Memorandum in Support of
Defendants’ Motion to Dismiss in Civ. A. No. 99–507, p. 1
(ED Ky.) (hereinafter Def. Exh. 1). The result in each
instance was a modified display of the Commandments
surrounded by texts containing religious references as
their sole common element. After changing counsel, the
counties revised the exhibits again by eliminating some
documents, expanding the text set out in another, and
adding some new ones.
The issues are whether a determination of the counties’
purpose is a sound basis for ruling on the Establishment
Clause complaints, and whether evaluation of the coun-
ties’ claim of secular purpose for the ultimate displays
2 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES

UNION OF KY.

Opinion of the Court

may take their evolution into account. We hold that the
counties’ manifest objective may be dispositive of the
constitutional enquiry, and that the development of the
presentation should be considered when determining its
purpose.
I
In the summer of 1999, petitioners McCreary County
and Pulaski County, Kentucky (hereinafter Counties), put
up in their respective courthouses large, gold-framed
copies of an abridged text of the King James version of the
Ten Commandments, including a citation to the Book of
Exodus.1 In McCreary County, the placement of the Com-
mandments responded to an order of the county legislative
body requiring “the display [to] be posted in ‘a very high
traffic area’ of the courthouse.” 96 F. Supp. 2d 679, 684
(ED Ky. 2000). In Pulaski County, amidst reported con-
troversy over the propriety of the display, the Command-
ments were hung in a ceremony presided over by the
county Judge-Executive, who called them “good rules to
live by” and who recounted the story of an astronaut who
became convinced “there must be a divine God” after
viewing the Earth from the moon. Dodson, Common-
wealth Journal, Jul. 25, 1999, p. A1, col. 2, in Memoran-
dum in Support of Plaintiffs’ Motion for Preliminary In-
junction in Civ. A. No. 99–509 (ED Ky.) (internal
quotation marks omitted). The Judge-Executive was
accompanied by the pastor of his church, who called the
Commandments “a creed of ethics” and told the press after
the ceremony that displaying the Commandments was
“one of the greatest things the judge could have done to
close out the millennium.” Id., at A2, col. 3 (internal
——————
1 We
do not consider here a display of the Ten Commandments in
schoolrooms in Harlan County, Kentucky, that was litigated in consoli-
dated proceedings in the District Court and Court of Appeals. That
display is the subject of a separate petition to this Court.
 Cite as: 545 U. S. ____ (2005) 3

Opinion of the Court

quotation marks omitted). In both counties, this was the
version of the Commandments posted:
“Thou shalt have no other gods before me.
“Thou shalt not make unto thee any graven images.
“Thou shalt not take the name of the Lord thy God in
vain.
“Remember the sabbath day, to keep it holy.
“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 in Memorandum 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
. . . county citizens who use the courthouse to conduct
their civic business, to obtain or renew driver’s licenses
and permits, to register cars, to pay local taxes, and to
register to vote.” 96 F. Supp. 2d., at 684; American Civil
Liberties Union of Kentucky v. Pulaski County, Kentucky,
96 F. Supp. 2d 691, 695 (ED Ky. 2000).
In November 1999, respondents American Civil Liber-
ties Union of Kentucky et al. sued the Counties in Federal
District Court under Rev. Stat. §1979, 42 U. S. C. §1983,
and sought a preliminary injunction against maintaining
the displays, which the ACLU charged were violations of
the prohibition of religious establishment included in the

——————
2 This text comes from a record exhibit showing the Pulaski County

Commandments that were part of the County’s first and second dis-
plays. The District Court found that the displays in each County were
functionally identical. 96 F. Supp. 2d 679, 682, n. 2 (ED Ky. 2000); 96
F. Supp. 2d 691, 693, n. 2 (ED Ky. 2000).
4 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES

UNION OF KY.

Opinion of the Court

First Amendment of the Constitution.3 Within a month,
and before the District Court had responded to the request
for injunction, the legislative body of each County author-
ized a second, expanded display, by nearly identical reso-
lutions reciting that the Ten Commandments are “the
precedent legal code upon which the civil and criminal
codes of . . . Kentucky are founded,” and stating several
grounds for taking that position: that “the Ten Com-
mandments are codified in Kentucky’s civil and criminal
laws”; that the Kentucky House of Representatives had in
1993 “voted unanimously . . . to adjourn . . . ‘in remem-
brance and honor of Jesus Christ, the Prince of Ethics’ ”;
that the “County Judge and . . . magistrates agree with
the arguments set out by Judge [Roy] Moore” in defense of
his “display [of] the Ten Commandments in his court-
room”; and that the “Founding Father[s] [had an] explicit
understanding of the duty of elected officials to publicly
acknowledge God as the source of America’s strength and
direction.” Def. Exh. 1, at 1–3, 6.
As directed by the resolutions, the Counties expanded
the displays of the Ten Commandments in their locations,
presumably along with copies of the resolution, which
instructed that it, too, be posted, id., at 9. In addition to
the first display’s large framed copy of the edited King
James version of the Commandments,4 the second in-
——————
3 The First Amendment provides that “Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise
thereof . . . .” This prohibition of establishment applies to “the States
and their political subdivisions” through the Fourteenth Amendment.
Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 301 (2000)
4 The District Court noted that there was some confusion as to

whether the Ten Commandments hung independently in the second
display, or were incorporated into the copy of the page from the Con-
gressional Record declaring 1983 “the Year of the Bible.” 96 F. Supp.
2d, at 684, and n. 4; 96 F. Supp. 2d, at 695–696, and n. 4. The exhibits
in the record depict the Commandments hanging as a separate item,
Def. Exh. 9, and that is more consistent with the Counties’ description
 Cite as: 545 U. S. ____ (2005) 5

Opinion of the Court

cluded eight other documents in smaller frames, each
either having a religious theme or excerpted to highlight a
religious element. The documents were the “endowed by
their Creator” passage from the Declaration of Independ-
ence; the Preamble to the Constitution of Kentucky; the
national motto, “In God We Trust”; a page from the Con-
gressional Record of February 2, 1983, proclaiming the
Year of the Bible and including a statement of the Ten
Commandments; a proclamation by President Abraham
Lincoln designating April 30, 1863, a National Day of
Prayer and Humiliation; an excerpt from President Lin-
coln’s “Reply to Loyal Colored People of Baltimore upon
Presentation of a Bible,” reading that “[t]he Bible is the
best gift God has ever given to man”; a proclamation by
President Reagan marking 1983 the Year of the Bible; and
the Mayflower Compact. 96 F. Supp. 2d, at 684; 96
F. Supp. 2d, at 695–696.
After argument, the District Court entered a prelimi-
nary injunction on May 5, 2000, ordering that the “display
. . . be removed from [each] County Courthouse
IMMEDIATELY” and that no county official “erect or
cause to be erected similar displays.” 96 F. Supp. 2d, at
691; 96 F. Supp. 2d, at 702–703. The court’s analysis of
the situation followed the three-part formulation first
stated in Lemon v. Kurtzman, 403 U. S. 602 (1971). As to
governmental purpose, it concluded that the original display
“lack[ed] any secular purpose” because the Commandments
“are a distinctly religious document, believed by many
Christians and Jews to be the direct and revealed word of
God.” 96 F. Supp. 2d, at 686; 96 F. Supp. 2d, at 698.
Although the Counties had maintained that the original
——————
of the second display in this Court. “[After erecting the first display]
Petitioners posted additional donated documents. . . . This display
consisted of the Ten Commandments along with other historical docu-
ments.” Brief for Petitioners 2. Like the District Court, we find our
analysis applies equally to either format.
6 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES

UNION OF KY.

Opinion of the Court

display was meant to be educational, “[t]he narrow scope of
the display—a single religious text unaccompanied by any
interpretation explaining its role as a foundational docu-
ment—can hardly be said to present meaningfully the story
of this country’s religious traditions.” 96 F. Supp. 2d, at
686–687; 96 F. Supp. 2d, at 698. The court found that the
second version also “clearly lack[ed] a secular purpose”
because the “Count[ies] narrowly tailored [their] selection of
foundational documents to incorporate only those with
specific references to Christianity.”5 96 F. Supp. 2d, at 687;
96 F. Supp. 2d, at 699.
The Counties filed a notice of appeal from the prelimi-
nary injunction but voluntarily dismissed it after hiring
new lawyers. They then installed another display in each
courthouse, the third within a year. No new resolution
authorized this one, nor did the Counties repeal the reso-
lutions that preceded the second. The posting consists of
nine framed documents of equal size, one of them setting
out the Ten Commandments explicitly identified as the
“King James Version” at Exodus 20:3–17, 145 F. Supp. 2d
845, 847 (ED Ky. 2001) and quoted at greater length than
before:
“Thou shalt have no other gods before me.
“Thou shalt not make unto thee any graven image, or
any likeness of any thing that is in heaven above, or
that is in the earth beneath, or that is in the water
underneath the earth: Thou shalt not bow down thy-
self to them, nor serve them: for I the LORD thy God
am a jealous God, visiting the iniquity of the fathers
upon the children unto the third and fourth genera-

——————
5 The court also found that the display had the effect of endorsing

religion: “Removed from their historical context and placed with other
documents with which the only common link is religion, the documents
have the undeniable effect of endorsing religion.” 96 F. Supp. 2d, at
688; 96 F. Supp. 2d, at 699–700.
 Cite as: 545 U. S. ____ (2005) 7

Opinion of the Court

tion of them that hate me.
“Thou shalt not take the name of the LORD thy God
in vain: for the LORD will not hold him guiltless that
taketh his name in vain.
“Remember the sabbath day, to keep it holy.
“Honour thy father and thy mother: that thy days
may be long upon the land which the LORD thy God
giveth thee.
“Thou shalt not kill.
“Thou shalt not commit adultery.
“Thou shalt not steal.
“Thou shalt not bear false witness against thy
neighbour.
“Thou shalt not covet thy neighbour’s house, thou
shalt not covet th[y] neighbor’s wife, nor his manser-
vant, nor his maidservant, nor his ox, nor his ass, nor
anything that is th[y] neighbour’s.” App. to Pet. for
Cert. 189a.
Assembled with the Commandments are framed copies of
the Magna Carta, the Declaration of Independence, the
Bill of Rights, the lyrics of the Star Spangled Banner, the
Mayflower Compact, the National Motto, the Preamble to
the Kentucky Constitution, and a picture of Lady Justice.
The collection is entitled “The Foundations of American
Law and Government Display” and each document comes
with a statement about its historical and legal signifi-
cance. The comment on the Ten Commandments reads:
“The Ten Commandments have profoundly influenced
the formation of Western legal thought and the forma-
tion of our country. That influence is clearly seen in
the Declaration of Independence, which declared that
‘We hold these truths to be self-evident, that all men
are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among
these are Life, Liberty, and the pursuit of Happiness.’
8 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES

UNION OF KY.

Opinion of the Court

The Ten Commandments provide the moral back-
ground of the Declaration of Independence and the
foundation of our legal tradition.” Id., at 180a.
The ACLU moved to supplement the preliminary in-
junction to enjoin the Counties’ third display,6 and the
Counties responded with several explanations for the new
version, including desires “to demonstrate that the Ten
Commandments were part of the foundation of American
Law and Government” and “to educate the citizens of the
county regarding some of the documents that played a
significant role in the foundation of our system of law and
government.” 145 F. Supp. 2d, at 848 (internal quotation
marks omitted). The court, however, took the objective of
proclaiming the Commandments’ foundational value as “a
religious, rather than secular, purpose” under Stone v.
Graham, 449 U. S. 39 (1980) (per curiam), 145 F. Supp. 2d,
at 849, and found that the assertion that the Counties’
broader educational goals are secular “crumble[s] . . . upon
an examination of the history of this litigation,” Ibid. In
light of the Counties’ decision to post the Commandments
by themselves in the first instance, contrary to Stone, and
later to “accentuat[e]” the religious objective by surround-
ing the Commandments with “specific references to Chris-
tianity,” the District Court understood the Counties’
“clear” purpose as being to post the Commandments, not
to educate.7 145 F. Supp. 2d, at 849–850 (internal quota-
tion marks omitted).
——————
6 Before the District Court issued the modified injunction, the Coun-

ties removed the label of “King James Version” and the citation to
Exodus. 145 F. Supp. 2d 845, 847 (ED Ky. 2001).
7 The Court also found that the effect of the third display was to en-

dorse religion because the “reasonable observer will see one religious
code placed alongside eight political or patriotic documents, and will
understand that the counties promote that one religious code as being
on a par with our nation’s most cherished secular symbols and docu-
ments” and because the “reasonable observer [would know] something
 Cite as: 545 U. S. ____ (2005) 9

Opinion of the Court

As requested, the trial court supplemented the injunc-
tion, and a divided panel of the Court of Appeals for the
Sixth Circuit affirmed. The Circuit majority stressed that
under Stone, displaying the Commandments bespeaks a
religious object unless they are integrated with other
material so as to carry “a secular message,” 354 F. 3d 438,
449 (2003). The majority judges saw no integration here
because of a “lack of a demonstrated analytical or histori-
cal connection [between the Commandments and] the
other documents.” Id., at 451. They noted in particular
that the Counties offered no support for their claim that
the Ten Commandments “provide[d] the moral backdrop”
to the Declaration of Independence or otherwise “pro-
foundly influenced” it. Ibid. (Internal quotation marks
omitted). The majority found that the Counties’ purpose
was religious, not educational, given the nature of the
Commandments as “an active symbol of religion [stating]
‘the religious duties of believers,’ ” Id., at 455. The judges
in the majority understood the identical displays to em-
phasize “a single religious influence, with no mention of
any other religious or secular influences,” id., at 454, and
they took the very history of the litigation as evidence of
the Counties’ religious objective, id., at 457.
Judge Ryan dissented on the basis of wide recognition
that religion, and the Ten Commandments in particular,
have played a foundational part in the evolution of Ameri-
can law and government; he saw no reason to gainsay the
Counties’ claim of secular purposes. Id., at 472–473. The
dissent denied that the prior displays should have any
bearing on the constitutionality of the current one: a “his-
tory of unconstitutional displays can[not] be used as a

——————

of the controversy surrounding these displays, which has focused on

only one of the nine framed documents: the Ten Commandments.” Id.,

at 851, 852.

10 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court

sword to strike down an otherwise constitutional display.”8
Id., at 478.
We granted certiorari, 543 U. S. ___ (2004), and now
affirm.
II
Twenty-five years ago in a case prompted by posting the
Ten Commandments in Kentucky’s public schools, this
Court recognized that the Commandments “are undenia-
bly a sacred text in the Jewish and Christian faiths” and
held that their display in public classrooms violated the
First Amendment’s bar against establishment of religion.
Stone, 449 U. S., at 41. Stone found a predominantly reli-
gious purpose in the government’s posting of the Com-
mandments, given their prominence as “ ‘an instrument of
religion,’ ” id., at 41, n. 3 (quoting School Dist. of Abington
Township v. Schempp, 374 U. S. 203, 224 (1963)). The
Counties ask for a different approach here by arguing that
official purpose is unknowable and the search for it inher-
ently vain. In the alternative, the Counties would avoid
the District Court’s conclusion by having us limit the scope
of the purpose enquiry so severely that any trivial ration-
alization would suffice, under a standard oblivious to the
history of religious government action like the progression
of exhibits in this case.
——————
8 The Sixth Circuit did not decide whether the display had the im-

permissible effect of advancing religion because one judge, having found
the display motivated by a religious purpose, did not reach that issue.
354 F. 3d, at 462 (Gibbons, J., concurring). The other judge in the
majority concluded that a reasonable observer would find that the
display had the effect of endorsing religion given the lack of analytical
connection between the Commandments and the other documents in
the display, the courthouse location of the display, and the history of
the displays. Id., at 458–459. The dissent found no effect of endorse-
ment because it concluded that a reasonable observer would only see
that the County had merely acknowledged the foundational role of the
Ten Commandments rather than endorsed their religious content. Id.,
at 479–480.
 Cite as: 545 U. S. ____ (2005) 11

Opinion of the Court

A
Ever since Lemon v. Kurtzman summarized the three
familiar considerations for evaluating Establishment
Clause claims, looking to whether government action has
“a secular legislative purpose” has been a common, albeit
seldom dispositive, element of our cases. 403 U. S., at 612.
Though we have found government action motivated by an
illegitimate purpose only four times since Lemon,9 and
“the secular purpose requirement alone may rarely be
determinative . . . , it nevertheless serves an important
function.”10 Wallace v. Jaffree, 472 U. S. 38, 75 (1985)
(O’CONNOR, J., concurring in judgment).
The touchstone for our analysis is the principle that the
“First Amendment mandates governmental neutrality
between religion and religion, and between religion and
nonreligion.” Epperson v. Arkansas, 393 U. S. 97, 104
(1968); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15–16
(1947); Wallace v. Jaffree, supra, at 53. When the govern-
ment acts with the ostensible and predominant purpose of
advancing religion, it violates that 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-day Saints v. Amos, 483 U. S. 327,
335 (1987) (“Lemon’s ‘purpose’ requirement aims at pre-
venting [government] from abandoning neutrality and
——————
9 Stone v. Graham, 449 U. S. 39, 41 (1980) (per curiam); Wallace v.
Jaffree, 472 U. S. 38, 56–61 (1985); Edwards v. Aguillard, 482 U. S.
578, 586–593 (1987); Santa Fe Independent School District v. Doe, 530
U. S., at 308–309.
10 At least since Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), it

has been clear that Establishment Clause doctrine lacks the comfort of
categorical absolutes. In special instances we have found good reason to
hold governmental action legitimate even where its manifest purpose was
presumably religious. See, e.g., Marsh v. Chambers, 463 U. S. 783 (1983)
(upholding legislative prayer despite its religious nature). No such
reasons present themselves here.
12 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court

acting with the intent of promoting a particular point of
view in religious matters”). Manifesting a purpose to
favor one faith over another, or adherence to religion
generally, clashes with the “understanding, reached . . .
after decades of religious war, that liberty and social
stability demand a religious tolerance that respects the
religious views of all citizens . . . .” Zelman v. Simmons-
Harris, 536 U. S. 639, 718 (2002) (BREYER, J., dissenting).
By showing a purpose to favor religion, the government
“sends the . . . message to . . . nonadherents ‘that they are
outsiders, not full members of the political community,
and an accompanying message to adherents that they are
insiders, favored members. . . .’ ” Santa Fe Independent
School Dist. v. Doe, 530 U. S. 290, 309–310 (2000) (quoting
Lynch v. Donnelly, 465 U. S. 668, 688 (1984) (O’CON-
NOR, J., concurring)).
Indeed, the purpose apparent from government action
can have an impact more significant than the result ex-
pressly decreed: when the government maintains Sunday
closing laws, it advances religion only minimally because
many working people would take the day as one of rest
regardless, but if the government justified its decision
with a stated desire for all Americans to honor Christ, the
divisive thrust of the official action would be inescapable.
This is the teaching of McGowan v. Maryland, 366 U. S.
420 (1961), which upheld Sunday closing statutes on
practical, secular grounds after finding that the govern-
ment had forsaken the religious purposes behind centu-
ries-old predecessor laws. Id., at 449–451.
B
Despite the intuitive importance of official purpose to
the realization of Establishment Clause values, the Coun-
ties ask us to abandon Lemon’s purpose test, or at least to
truncate any enquiry into purpose here. Their first ar-
gument is that the very consideration of purpose is decep-
 Cite as: 545 U. S. ____ (2005) 13

Opinion of the Court

tive: according to them, true “purpose” is unknowable,
and its search merely an excuse for courts to act selec-
tively and unpredictably in picking out evidence of subjec-
tive intent. The assertions are as seismic as they are
unconvincing.
Examination of purpose is a staple of statutory interpre-
tation that makes up the daily fare of every appellate
court in the country, e.g., General Dynamics Land Sys-
tems, Inc. v. Cline, 540 U. S. 581, 600 (2004) (interpreting
statute in light of its “text, structure, purpose, and his-
tory”), and governmental purpose is a key element of a
good deal of constitutional doctrine, e.g., Washington v.
Davis, 426 U. S. 229 (1976) (discriminatory purpose re-
quired for Equal Protection violation); Hunt v. Washington
State Apple Advertising Comm’n, 432 U. S. 333, 352–353
(1977) (discriminatory purpose relevant to dormant Com-
merce Clause claim); Church of Lukumi Babalu Aye, Inc.
v. Hialeah, 508 U. S. 520 (1993) (discriminatory purpose
raises level of scrutiny required by free exercise claim).
With enquiries into purpose this common, if they were
nothing but hunts for mares’ nests deflecting attention
from bare judicial will, the whole notion of purpose in law
would have dropped into disrepute long ago.
But scrutinizing purpose does make practical sense, as
in Establishment Clause analysis, where an understand-
ing of official objective emerges from readily discoverable
fact, without any judicial psychoanalysis of a drafter’s
heart of hearts. Wallace v. Jaffree, supra, at 74 (O’CON-
NOR, J., concurring in judgment). The eyes that look to
purpose belong to an “ ‘objective observer,’ ” one who takes
account of the traditional external signs that show up in
the “ ‘text, legislative history, and implementation of the
statute,’ ” or comparable official act. Santa Fe Independent
School Dist. v. Doe, supra, at 308 (quoting Wallace v.
Jaffree, 472 U. S., at 73) (O’CONNOR, J., concurring in
judgment)); see also Edwards v. Aguillard, 482 U. S. 578,
14 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court

594–595 (1987) (enquiry looks to “plain meaning of the
statute’s words, enlightened by their context and the
contemporaneous legislative history [and] the historical
context of the statute, . . . and the specific sequence of
events leading to [its] passage”). There is, then, nothing
hinting at an unpredictable or disingenuous exercise when
a court enquires into purpose after a claim is raised under
the Establishment Clause.
The cases with findings of a predominantly religious
purpose point to the straightforward nature of the test. In
Wallace, for example, we inferred purpose from a change
of wording from an earlier statute to a later one, each
dealing with prayer in schools. 472 U. S., at 58–60. And
in Edwards, we relied on a statute’s text and the detailed
public comments of its sponsor, when we sought the pur-
pose of a state law requiring creationism to be taught
alongside evolution. 482 U. S., at 586–588. In other cases,
the government action itself bespoke the purpose, as in
Abington, where the object of required Bible study in
public schools was patently religious, 374 U. S., at 223–
224; in Stone, the Court held that the “[p]osting of reli-
gious texts on the wall serve[d] no . . . educational func-
tion,” and found that if “the posted copies of the Ten
Commandments [were] to have any effect at all, it [would]
be to induce the schoolchildren to read, meditate upon,
perhaps to venerate and obey, the Commandments.” 449
U. S., at 42. In each case, the government’s action was
held unconstitutional only because openly available data
supported a commonsense conclusion that a religious
objective permeated the government’s action.
Nor is there any indication that the enquiry is rigged in
practice to finding a religious purpose dominant every
time a case is filed. In the past, the test has not been fatal
very often, presumably because government does not
generally act unconstitutionally, with the predominant
purpose of advancing religion. That said, one consequence
 Cite as: 545 U. S. ____ (2005) 15

Opinion of the Court

of the corollary that Establishment Clause analysis does
not look to the veiled psyche of government officers could
be that in some of the cases in which establishment com-
plaints failed, savvy officials had disguised their religious
intent so cleverly that the objective observer just missed
it. But that is no reason for great constitutional concern.
If someone in the government hides religious motive so
well that the “ ‘objective observer, acquainted with the
text, legislative history, and implementation of the stat-
ute,’ ” Santa Fe Independent School Dist. v. Doe, 530 U. S.,
at 308 (quoting Wallace, supra, at 73) (O’CONNOR, J.,
concurring in judgment)), cannot see it, then without
something more the government does not make a divisive
announcement that in itself amounts to taking religious
sides. A secret motive stirs up no strife and does nothing
to make outsiders of nonadherents, and it suffices to wait
and see whether such government action turns out to have
(as it may even be likely to have) the illegitimate effect of
advancing religion.
C
After declining the invitation to abandon concern with
purpose wholesale, we also have to avoid the Counties’
alternative tack of trivializing the enquiry into it. The
Counties would read the cases as if the purpose 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 the Counties’
arguments, or reason supporting them.
1
Lemon said that government action must have “a secu-
lar . . . purpose,” 403 U. S., at 612, and after a host of
cases it is fair to add that although a legislature’s stated
16 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court

reasons will generally get deference, the secular purpose
required has to be genuine, not a sham, and not merely
secondary to a religious objective. See, e.g., Santa Fe
Independent School Dist. v. Doe, supra, at 308 (“When a
governmental entity professes a secular purpose for an
arguably religious policy, the government’s characteriza-
tion is, of course, entitled to some deference. But it is
nonetheless the duty of the courts to ‘distinguis[h] a sham
secular purpose from a sincere one’ ”); Edwards, 482 U. S.,
at 586–587 (“While the Court is normally deferential to a
State’s articulation of a secular purpose, it is required
that the statement of such purpose be sincere and not a
sham”); id., at 590, 594 (referring to enquiry as one into
“preeminent” or “primary” purpose); Stone, supra, at 41
(looking to the “pre-eminent purpose” of government
action).
Even the Counties’ own cited authority confirms that we
have not made the purpose test a pushover for any secular
claim. True, Wallace said government action is tainted by
its object “if it is entirely motivated by a purpose to ad-
vance religion,” 472 U. S., at 56, a remark that suggests,
in isolation, a fairly complaisant attitude. But in that very
case the Court declined to credit Alabama’s stated secular
rationale of “accommodation” for legislation authorizing a
period of silence in school for meditation or voluntary
prayer, given the implausibility of that explanation in
light of another statute already accommodating children
wishing to pray. Id., at 57, n. 45 (internal quotation
marks omitted). And it would be just as much a mistake
to infer that a timid standard underlies the statement in
Lynch v. Donnelly that the purpose enquiry looks to
whether government “activity was motivated wholly by
religious considerations,” 465 U. S., at 680; for two cases
cited for that proposition had examined and rejected
claims of secular purposes that turned out to be implausi-
 Cite as: 545 U. S. ____ (2005) 17

Opinion of the Court

ble or inadequate:11 Stone, 449 U. S., at 41; Abington, 374
U. S., at 223–224.12 See also Bowen v. Kendrick, 487 U. S.
589, 602 (1988) (using the “motivated wholly by an im-
permissible purpose” language, but citing Lynch and
Stone). As we said, the Court often does accept govern-
mental statements of purpose, in keeping with the respect
owed in the first instance to such official claims. But 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.13
2
The Counties’ second proffered limitation can be dis-
patched quickly. They argue that purpose in a case like

——————
11 Moreover, JUSTICE O’CONNOR provided the fifth vote for the Lynch

majority and her concurrence emphasized the point made implicitly in
the majority opinion that a secular purpose must be serious to be
sufficient. 465 U. S., at 691 (The purpose inquiry “is not satisfied . . . by
the mere existence of some secular purpose, however dominated by
religious purposes”).
12 Stone found the sacred character of the Ten Commandments pre-

eminent despite an avowed secular purpose to show their “adoption as
the fundamental legal code of Western Civilization and the Common
Law . . . .” 449 U. S., at 39–40, n. 1 (internal quotation marks omitted).
And the Abington Court was unconvinced that music education or the
teaching of literature were actual secular objects behind laws requiring
public school teachers to lead recitations from the Lord’s Prayer and
readings from the Bible. 374 U. S., at 273.
13 The dissent nonetheless maintains that the purpose test is satisfied

so long as any secular purpose for the government action is apparent.
Post, at 18–19 (opinion of SCALIA, J.). Leaving aside the fact that this
position is inconsistent with the language of the cases just discussed, it
would leave the purpose test with no real bite, given the ease of finding
some secular purpose for almost any government action. While height-
ened deference to legislatures is appropriate for the review of economic
legislation, an approach that credits any valid purpose, no matter how
trivial, has not been the way the Court has approached government
action that implicates establishment.
18 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court

this one should be inferred, if at all, only from the latest
news about the last in a series of governmental actions,
however close they may all be in time and subject. But the
world is not made brand new every morning, and the
Counties are simply asking us to ignore perfectly proba-
tive evidence; they want an absentminded objective ob-
server, not one presumed to be familiar with the history of
the government’s actions and competent to learn what
history has to show, Santa Fe Independent School Dist. v.
Doe, 530 U. S., at 308 (objective observer is familiar with
“ ‘implementation of’ ” government action) (quoting Wal-
lace, supra, at 73) (O’CONNOR, J., concurring in judg-
ment)); Edwards, supra, at 595 (enquiry looks to “the
historical context of the statute . . . and the specific se-
quence of events leading to [its] passage”); Capitol Square
Review and Advisory Bd. v. Pinette, 515 U. S. 753, 780
(1995) (O’CONNOR, J., concurring in part and concurring in
judgment) (“[T]he reasonable observer in the endorsement
inquiry must be deemed aware of the history and context
of the community and forum in which the religious display
appears”). The Counties’ position just bucks common
sense: reasonable observers have reasonable memories,
and our precedents sensibly forbid an observer “to turn a
blind eye to the context in which [the] policy arose.”14
——————
14 One consequence of taking account of the purpose underlying past

actions is that the same government action may be constitutional if
taken in the first instance and unconstitutional if it has a sectarian
heritage. This presents no incongruity, however, because purpose
matters. Just as Holmes’s dog could tell the difference between being
kicked and being stumbled over, it will matter to objective observers
whether posting the Commandments follows on the heels of displays
motivated by sectarianism, or whether it lacks a history demonstrating
that purpose. The dissent, apparently not giving the reasonable
observer as much credit as Holmes’s dog, contends that in practice it
will be “absur[d]” to rely upon differences in purpose in assessing
government action. Post, at 24. As an initial matter, it will be the rare
case in which one of two identical displays violates the purpose prong.
 Cite as: 545 U. S. ____ (2005) 19

Opinion of the Court

Santa Fe Independent School Dist. v. Doe, supra, at 315.
III
This case comes to us on appeal from a preliminary
injunction. We accordingly review the District Court’s
legal rulings de novo, and its ultimate conclusion for abuse
of discretion.15 Ashcroft v. American Civil Liberties Union,
542 U. S. 656 (2004).
We take Stone as the initial legal benchmark, our only
case dealing with the constitutionality of displaying the
Commandments. Stone recognized that the Command-
ments are an “instrument of religion” and that, at least on
the facts before it, the display of their text could presump-
tively be understood as meant to advance religion: al-
though state law specifically required their posting in
public school classrooms, their isolated exhibition did not
leave room even for an argument that secular education
explained their being there. 449 U. S., at 41, n. 3 (internal
quotation marks omitted). But Stone did not purport to
decide the constitutionality of every possible way the
Commandments might be set out by the government, and
under the Establishment Clause detail is key. County of
Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573, 595 (1989) (opinion of

——————
In general, like displays tend to show like objectives and will be treated
accordingly. But where one display has a history manifesting sectarian
purpose that the other lacks, it is appropriate that they be treated
differently, for the one display will be properly understood as demon-
strating a preference for one group of religious believers as against
another. See supra, at 11–12. While posting the Commandments may
not have the effect of causing greater adherence to them, an ostensible
indication of a purpose to promote a particular faith certainly will have
the effect of causing viewers to understand the government is taking
sides.
15 We note that the only factor in the preliminary injunction analysis

that is at issue here is the likelihood of the ACLU’s success on the
merits.
20 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court

Blackmun, J.) (“[T]he question is what viewers may fairly
understand to be the purpose of the display. That inquiry,
of necessity, turns upon the context in which the contested
object appears”) (internal quotation marks and citation
omitted). Hence, we look to the record of evidence showing
the progression leading up to the third display of the
Commandments.
A
The display rejected in Stone had two obvious similari-
ties to the first one in the sequence here: both set out a
text of the Commandments as distinct from any tradition-
ally symbolic representation, and each stood alone, not
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, supra, at 42, and for good rea-
son, 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). They regulate details of religious obligation
(no graven images, no sabbath breaking, no vain oath
swearing). And they unmistakably rest even the univer-
sally accepted prohibitions (as against murder, theft, and
the like) on the sanction of the divinity proclaimed at the
beginning of the text. Displaying that text is thus differ-
ent from a symbolic depiction, 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 sug-
gesting a message going beyond an excuse to promote the
religious point of view. The display in Stone had no con-
text that might have indicated an object beyond the reli-
gious character of the text, and the Counties’ solo exhibit
here did nothing more to counter the sectarian implication
 Cite as: 545 U. S. ____ (2005) 21

Opinion of the Court

than the postings at issue in Stone.16 See also County of
Allegheny, supra, at 598 (“Here, unlike in Lynch [v. Don-
nelly], nothing in the context of the display detracts from the
crèche’s religious message”). Actually, the posting by the
Counties lacked even the Stone display’s implausible
disclaimer that the Commandments were set out to show
their effect on the civil law.17 What is more, at the cere-
mony for posting the framed Commandments in Pulaski
County, the county executive was accompanied by his
pastor, who testified to the certainty of the existence of
God. The reasonable observer could only think that the
Counties meant to emphasize and celebrate the Com-
mandments’ religious message.
This is not to deny that the Commandments have had
influence on civil or secular law; a major text of a majority
religion is bound to be felt. The point is simply that the
original text viewed in its entirety is an unmistakably
religious statement dealing with religious obligations and
with morality subject to religious sanction. When the
government initiates an effort to place this statement
alone in public view, a religious object is unmistakable.
B
Once the Counties were sued, they modified the exhibits
and invited additional insight into their purpose in a
display that hung for about six months. This new one was
the product of forthright and nearly identical Pulaski and
McCreary County resolutions listing a series of American
——————
16 Although the Counties point out that the courthouses contained

other displays besides the Ten Commandments, there is no suggestion
that the Commandments display was integrated to form a secular
display.
17 In Stone, the Commandments were accompanied by a small dis-

claimer: “The secular application of the Ten Commandments is clearly
seen in its adoption as the fundamental legal code of Western Civiliza-
tion and the Common Law of the United States.” 449 U. S., at 39–40,
n. 1 (internal quotation marks omitted).
22 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court

historical documents with theistic and Christian refer-
ences, which were to be posted in order to furnish a setting
for displaying the Ten Commandments and any “other
Kentucky and American historical documen[t]” without
raising concern about “any Christian or religious refer-
ences” in them. Def. Exh. 1, at 1. As mentioned, the
resolutions expressed support for an Alabama judge who
posted the Commandments in his courtroom, and cited the
fact the Kentucky Legislature once adjourned a session in
honor of “Jesus Christ, Prince of Ethics.” Id., at 2–3.
In this second display, unlike the first, the Command-
ments were not hung in isolation, merely leaving the
Counties’ purpose to emerge from the pervasively religious
text of the Commandments themselves. Instead, the
second version was required to include the statement of
the government’s purpose expressly set out in the county
resolutions, and underscored it by juxtaposing the Com-
mandments to other documents with highlighted refer-
ences to God as their sole common element. The display’s
unstinting focus was on religious passages, showing that
the Counties were posting the Commandments precisely
because of their sectarian content. That demonstration of
the government’s objective was enhanced by serial reli-
gious references and the accompanying resolution’s claim
about the embodiment of ethics in Christ. Together, the
display and resolution presented an indisputable, and
undisputed, showing of an impermissible purpose.
Today, the Counties make no attempt to defend their
undeniable objective, but instead hopefully describe ver-
sion two as “dead and buried.” Reply Brief for Petitioners
15. Their refusal to defend the second display is under-
standable, but the reasonable observer could not forget it.
C
1
After the Counties changed lawyers, they mounted a
 Cite as: 545 U. S. ____ (2005) 23

Opinion of the Court

third display, without a new resolution or repeal of the old
one. The result was the “Foundations of American Law
and Government” exhibit, which placed the Command-
ments in the company of other documents the Counties
thought 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 the citizens of the county regarding
some of the documents that played a significant role in the
foundation of our system of law and government.”18 145
F. Supp. 2d, at 848 (internal quotation marks omitted). The
Counties’ claims did not, however, persuade the court,
intimately familiar with the details of this litigation, or
the Court of Appeals, neither of which found a legitimizing
secular purpose in this third version of the display.
“ ‘When both courts [that have already passed on the case]
are unable to discern an arguably valid secular purpose,
this Court normally should hesitate to find one.’ ” Ed-
wards, 482 U. S., at 594, n. 15 (quoting Wallace, 472 U. S.,
at 66 (Powell, J., concurring)). The conclusions of the two
courts preceding us in this case are well warranted.
These new statements of purpose were presented only
as a litigating position, there being no further authorizing
action 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 cur-

——————
18 The Counties’ other purposes were:
“to erect a display containing the Ten Commandments that is consti-
tutional; . . . to demonstrate that the Ten Commandments were part of
the foundation of American Law and Government; . . . [to include the
Ten Commandments] as part of the display for their significance in
providing ‘the moral background of the Declaration of Independence
and the foundation of our legal tradition.’ ” 145 F. Supp. 2d, at 848
(some internal quotation marks omitted).
24 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court

rent purpose,19 the extraordinary resolutions for the sec-
ond display passed just months earlier were not repealed
or otherwise repudiated.20 Indeed, the sectarian spirit of
the common resolution found enhanced expression in the
third display, which quoted more of the purely religious
language of the Commandments than the first two dis-
plays had done; for additions, see App. to Pet. for Cert.
189a (“I the LORD thy God am a jealous God”) (text of
Second Commandment in third display); (“the LORD will
not hold him guiltless that taketh his name in vain”) (from
text of Third Commandment); and (“that thy days may be
long upon the land which the LORD thy God giveth thee”)
(text of Fifth Commandment). No reasonable observer
could swallow 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. In a collection of documents said to be
“foundational” to American government, it is at least odd
to include a patriotic anthem, but to omit the Fourteenth
Amendment, the most significant structural provision
——————
19 Following argument in this case, in which the resolutions were

discussed, the McCreary and Pulaski County Boards did repeal the
resolutions, acts of obviously minimal significance in the evolution of
the evidence.
20 The Counties argue that the objective observer would not continue

to believe that the resolution was in effect after the third display went
up because the resolution authorized only the second display. But the
resolution on its face is not limited to any particular display. On the
contrary, it encourages the creation of a display with the Ten Com-
mandments that also includes such documents as “the National anthem
. . . the National Motto . . . the preamble to the Kentucky Constitu-
tion[,] the Declaration of Independence [and] the Mayflower Compact
. . . without censorship because of any Christian or religious refer-
ences.” Def. Exh. 1, at 1. The third display contains all of these docu-
ments, suggesting that it fell within the resolutions as well. The record
does not indicate whether the resolutions were posted with the third
display.
 Cite as: 545 U. S. ____ (2005) 25

Opinion of the Court

adopted since the original Framing. And it is no less
baffling to leave out the original Constitution of 1787
while quoting the 1215 Magna Carta even to the point of
its declaration that “fish-weirs shall be removed from the
Thames.” App. to Pet. for Cert. 205a, ¶33. If an observer
found these choices and omissions perplexing in isolation,
he would be puzzled for a different reason when he read
the Declaration of Independence seeking confirmation for
the Counties’ posted explanation that the “Ten Com-
mandments’ . . . influence is clearly seen in the Declara-
tion,” id., at 180a; in fact the observer would find that the
Commandments are sanctioned as divine imperatives,
while the Declaration of Independence holds that the
authority of government to enforce the law derives “from
the consent of the governed,” id., at 190a.21 If the observer
had not thrown up his hands, he would probably suspect
that the Counties were simply reaching for any way to
keep a religious document on the walls of courthouses
constitutionally required to embody religious neutrality.22
——————
21 The Counties have now backed away from their broad assertion

that the Commandments provide “the” moral background of the Decla-
ration of Independence, and now merely claim that many of the Com-
mandments “regarding murder, property, theft, coveting, marriage, rest
from labor and honoring parents are compatible with the rights to life,
liberty and happiness.” Brief for Petitioners 10, n. 7.
22 The Counties grasp at McGowan v. Maryland, 366 U. S. 420 (1961),

but it bears little resemblance to this case. As noted supra, at 12–13,
McGowan held that religious purposes behind centuries-old predeces-
sors of Maryland’s Sunday laws were not dispositive of the purposes of
modern Sunday laws, where the legislature had removed much of the
religious reference in the laws and stated secular and pragmatic
justifications for them. 366 U. S., at 446–452. But a conclusion that
centuries-old purposes may no longer be operative says nothing about
the relevance of recent evidence of purpose, and this case is far more
like Santa Fe, with its evolution of a school football game prayer policy
over the course of a single lawsuit. Like that case, “[t]his [one] comes to
us as the latest step in developing litigation brought as a challenge to
institutional practices that unquestionably violated the Establishment
26 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court

2
In holding the preliminary injunction adequately sup-
ported by evidence that the Counties’ purpose had not
changed at the third stage, we do not decide that the
Counties’ past actions forever taint any effort on their part
to deal with the subject matter. We hold only that pur-
pose needs to be taken seriously under the Establishment
Clause and needs to be understood in light of context; an
implausible claim that governmental purpose has changed
should not carry the day in a court of law any more than
in a head with common sense. It is enough to say here
that district courts are fully capable of adjusting prelimi-
nary relief to take account of genuine changes in constitu-
tionally significant conditions. See Ashcroft v. American
Civil Liberties Union, 542 U. S. 656 (2004).
Nor do we have occasion here to hold that a sacred text
can never be integrated constitutionally into a governmen-
tal display on the subject of law, or American history. We
do not forget, and in this litigation have frequently been
reminded, that our own courtroom frieze was deliberately
designed in the exercise of governmental authority so as to
include the figure of Moses holding tablets exhibiting a
portion of the Hebrew text of the later, 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 neutrality in religion.23

——————
Clause.” 530 U. S., at 315. (describing the evolution of the school
district’s football prayer policy). Thus, as in Santa Fe, it makes sense
to examine the Counties’ latest action “in light of [their] history of”
unconstitutional practices. Id., at 309.
23 The dissent notes that another depiction of Moses and the Com-

mandments adorns this Court’s east pediment. Post, at 23. But as
with the courtroom frieze, Moses is found in the company of other
figures, not only great but secular.
 Cite as: 545 U. S. ____ (2005) 27

Opinion of the Court

IV
The importance of neutrality as an interpretive guide is
no less true now than it was when the Court broached the
principle in Everson v. Board of Ed. of Ewing, 330 U. S. 1
(1947), and a word needs to be said about the different
view taken in today’s dissent. We all agree, of course, on
the need for some interpretative help. The First Amend-
ment contains no textual definition of “establishment,”
and the term is certainly not self-defining. No one con-
tends that the prohibition of establishment stops at a
designation of a national (or with Fourteenth Amendment
incorporation, Cantwell v. Connecticut, 310 U. S. 296, 303
(1940), a state) church, but nothing in the text says just
how much more it covers. There is no simple answer, for
more than one reason.
The prohibition on establishment covers a variety of
issues from prayer in widely varying government settings,
to financial aid for religious individuals and institutions,
to comment on religious questions. In these varied set-
tings, issues of about interpreting inexact Establishment
Clause language, like difficult interpretative issues gener-
ally, arise from the tension of competing values, each
constitutionally respectable, but none open to realization
to the logical limit.
The First Amendment has not one but two clauses tied
to “religion,” the second forbidding any prohibition on the
“the free exercise thereof,” and sometimes, the two clauses
compete: spending government money on the clergy looks
like establishing religion, but if the government cannot
pay for military chaplains a good many soldiers and sail-
ors would be kept from the opportunity to exercise their
chosen religions. See Cutter v. Wilkinson, 544 U. S. ___,
___ (2005) (slip. op., at 8–9). At other times, limits on
governmental action that might make sense as a way to
avoid establishment could arguably limit freedom of
speech when the speaking is done under government
28 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court

auspices. Rosenberger v. Rector and Visitors of Univ. of
Va., 515 U. S. 819 (1995). The dissent, then, is wrong to
read cases like Walz v. Tax Comm’n of City of New York,
397 U. S. 664 (1970), as a rejection of neutrality on its own
terms, post, at 7–8, for trade-offs are inevitable, and an
elegant interpretative rule to draw the line in all the
multifarious situations is not be had.
Given the variety of interpretative problems, the princi-
ple of neutrality has provided a good sense of direction: the
government may not favor one religion over another, or
religion over irreligion, religious choice being the preroga-
tive of individuals under the Free Exercise Clause. The
principle has been helpful simply because it responds to
one of the major concerns that prompted adoption of the
Religion Clauses. The Framers and the citizens of their
time intended not only to protect the integrity of individ-
ual conscience in religious matters, Wallace v. Jaffree, 472
U. S., at 52–54, and n. 38, but to guard against the civic
divisiveness that follows when the Government weighs in
on one side of religious debate; nothing does a better job of
roiling society, a point that needed no explanation to the
descendants of English Puritans and Cavaliers (or Massa-
chusetts Puritans and Baptists). E.g., Everson, supra, at 8
(“A large proportion of the early settlers of this country
came here from Europe to escape [religious persecution]”).
A sense of the past thus points to governmental neutrality
as an objective of the Establishment Clause, and a sensi-
ble standard for applying it. To be sure, given its general-
ity as a principle, an appeal to neutrality alone cannot
possibly lay every issue to rest, or tell us what issues on
the margins are substantial enough for constitutional
significance, a point that has been clear from the Found-
ing era to modern times. E.g., Letter from J. Madison to
R. Adams (1832), in 5 The Founders’ Constitution at 107
(P. Kurland & R. Lerner eds. 1987) (“[In calling for separa-
tion] I must admit moreover that it may not be easy, in
 Cite as: 545 U. S. ____ (2005) 29

Opinion of the Court

every possible case, to trace the line of separation between
the rights of religion and the Civil authority with such
distinctness as to avoid collisions & doubts on unessential
points”); Sherbert v. Verner, 374 U. S. 398, 422 (1963)
(Harlan, J., dissenting) (“The constitutional obligation of
‘neutrality’ . . . is not so narrow a channel that the slightest
deviation from an absolutely straight course leads to con-
demnation”). But invoking neutrality is a prudent way of
keeping sight of something the Framers of the First
Amendment thought important.
The dissent, however, puts forward a limitation on the
application of the neutrality principle, with citations to
historical evidence said to show that the Framers under-
stood the ban on establishment of religion as sufficiently
narrow to allow the government to espouse submission to
the divine will. The dissent identifies God as the God of
monotheism, all of whose three principal strains (Jewish,
Christian, and Muslim) acknowledge the religious impor-
tance of the Ten Commandments. Post, at 9–10. On the
dissent’s view, it apparently follows that even rigorous
espousal of a common element of this common monothe-
ism, is consistent with the establishment ban.
But the dissent’s argument for the original understand-
ing is flawed from the outset by its failure to consider the
full range of evidence showing what the Framers believed.
The dissent is certainly correct in putting forward evi-
dence that some of the Framers thought some endorse-
ment of religion was compatible with the establishment
ban; the dissent quotes the first President as stating that
“national morality [cannot] prevail in exclusion of religious
principle,” for example, post, at 3, and it cites his first
Thanksgiving proclamation giving thanks to God, post, at
2 (internal quotation marks omitted). Surely if expres-
sions like these from Washington and his contemporaries
were all we had to go on, there would be a good case that
the neutrality principle has the effect of broadening the
30 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court

ban on establishment beyond the Framers’ understand-
ing of it (although there would, of course, still be the
question of whether the historical case could overcome
some 60 years of precedent taking neutrality as its guid-
ing principle).24
But the fact is that we do have more to go on, for there
is also evidence supporting the proposition that the Fram-
ers intended the Establishment Clause to require govern-
mental neutrality in matters of religion, including neutral-
ity in statements acknowledging religion. The very
language of the Establishment Clause represented a
significant departure from early drafts that merely prohib-
ited a single national religion, and, the final language
instead “extended [the] prohibition to state support for
‘religion’ in general.” See Lee v. Weisman, 505 U. S. 577,
614–615 (1992) (SOUTER, J., concurring) (tracing develop-
ment of language).
The historical record, moreover, is complicated beyond
the dissent’s account by the writings and practices of
figures no less influential than Thomas Jefferson and
James Madison. Jefferson, for example, refused to issue
Thanksgiving Proclamations because he believed that they
violated the Constitution. See Letter to S. Miller (Jan. 23,
1808), in 5 The Founders’ Constitution at 98. And Madi-
son, whom the dissent claims as supporting its thesis,
——————
24 The dissent also maintains that our precedents show that a solo

display of the Commandments is a mere acknowledgement of religion
“on par with the inclusion of a crèche or a menorah” in a holiday
display, or an official’s speech or prayer, post, at 22. Whether or not our
views would differ about the significance of those practices if we were
considering them as original matters, they manifest no objective of
subjecting individual lives to religious influence comparable to the
apparent and openly acknowledged purpose behind posting the Com-
mandments. Crèches placed with holiday symbols and prayers by
legislators do not insistently call for religious action on the part of
citizens; the history of posting the Commandments expressed a purpose
to urge citizens to act in prescribed ways as a personal response to
divine authority.
 Cite as: 545 U. S. ____ (2005) 31

Opinion of the Court

post, at 4, criticized Virginia’s general assessment tax not
just because it required people to donate “three pence” to
religion, but because “it is itself a signal of persecution. It
degrades from the equal rank of Citizens all those whose
opinions in Religion do not bend to those of the Legislative
authority.” 505 U. S., at 622 (internal quotation marks
omitted); see also Letter from J. Madison to E. Livingston
(July 10, 1822), in 5 The Founders’ Constitution, at 106
(“[R]eligion & Govt. will both exist in greater purity, the
less they are mixed together”); Letter from J. Madison to
J. Adams (Sept. 1833) in Religion and Politics in the Early
Republic 120 (D. Dresibach ed. 1996) (stating that with
respect to religion and government the “tendency to a
usurpation on one side, or the other, or to a corrupting
coalition or alliance between them, will be best guarded
against by an entire abstinence of the Government from
interference”); Van Orden v. Perry, 545 U. S. ___ (2005)
(STEVENS, J., dissenting) (slip op., at 19-20).25
The fair inference is that there was no common under-
standing about the limits of the establishment prohibition,
and the dissent’s conclusion that its narrower view was
the original understanding, post, at 2–3, stretches the
evidence beyond tensile capacity. What the evidence does
show is a group of statesmen, like others before and after
them, who proposed a guarantee with contours not wholly
worked out, leaving the Establishment Clause with edges
still to be determined. And none the worse for that. Inde-
terminate edges are the kind to have in a constitution
——————
25 The dissent cites material suggesting that separationists like Jef-

ferson and Madison were not absolutely consistent in abstaining from
official religious acknowledgment. Post, at 4. But, a record of inconsis-
tent historical practice is too weak a lever to upset decades of precedent
adhering to the neutrality principle. And it is worth noting that Jeffer-
son thought his actions were consistent with non-endorsement of
religion and Madison regretted any backsliding he may have done. Lee
v. Weisman, 505 U. S. 577, 622–25 (1992) (SOUTER, J., concurring).
“Homer nodded.” Id., at 624, n. 5 (corrected in erratum at 535 U. S., at II).
32 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court

meant to endure, and to meet “exigencies which, if fore-
seen at all, must have been seen dimly, and which can be
best provided for as they occur.” McCulloch v. Maryland,
4 Wheat. 316, 415 (1819).
While the dissent fails to show a consistent original
understanding from which to argue that the neutrality
principle should be rejected, it does manage to deliver a
surprise. As mentioned, the dissent says that the deity
the Framers had in mind was the God of monotheism,
with the consequence that government may espouse a
tenet of traditional monotheism. This is truly a remark-
able view. Other members of the Court have dissented on
the ground that the Establishment Clause bars nothing
more than governmental preference for one religion over
another, e.g., Wallace v. Jaffree, 472 U. S., at 98–99
(REHNQUIST, J., dissenting), but at least religion has
previously been treated inclusively. Today’s dissent,
however, apparently means that government should be
free to approve the core beliefs of a favored religion over
the tenets of others, a view that should trouble anyone
who prizes religious liberty. Certainly history cannot
justify it; on the contrary, history shows that the religion
of concern to the Framers was not that of the monotheistic
faiths generally, but Christianity in particular, a fact that
no member of this Court takes as a premise for construing
the Religion Clauses. Justice Story probably reflected the
thinking of the framing generation when he wrote in his
Commentaries that the purpose of the Clause was “not to
countenance, much less to advance, Mahometanism, or
Judaism, or infidelity, by prostrating Christianity; but to
exclude all rivalry among Christian sects.” R. Cord, Sepa-
ration of Church and State: Historical Fact and Current
Fiction 13 (1988) (emphasis omitted). The Framers would,
therefore, almost certainly object to the dissent’s unstated
reasoning that because Christianity was a monotheistic
“religion,” monotheism with Mosaic antecedents should be
 Cite as: 545 U. S. ____ (2005) 33

Opinion of the Court

a touchstone of establishment interpretation.26 Even on
originalist critiques of existing precedent there is, it
seems, no escape from interpretative consequences that
would surprise the Framers. Thus, it appears to be com-
mon ground in the interpretation of a Constitution “in-
tended to endure for ages to come,” McCulloch v. Mary-
land, supra, at 415, that applications unanticipated by the
Framers are inevitable.
Historical evidence thus supports no solid argument for
changing course (whatever force the argument might have
when directed at the existing precedent), whereas public
discourse at the present time certainly raises no doubt
about the value of the interpretative approach invoked for
60 years now. We are centuries away from the St. Bar-
tholomew’s Day massacre and the treatment of heretics in
early Massachusetts, but the divisiveness of religion in
current public life is inescapable. This is no time to deny
the prudence of understanding the Establishment
Clause to require the Government to stay neutral on
religious belief, which is reserved for the conscience of
the individual.
V
Given the ample support for the District Court’s finding

——————
26 There might, indeed, even have been some reservations about

monotheism as the paradigm example. It is worth noting that the
canonical biography of George Washington, the dissent’s primary
exemplar of the monotheistic tradition, calls him a deist. J. Flexner,
George Washington: Anguish and Farewell (1793–1799) 490 (1972)
(“Washington’s religious belief was that of the enlightenment: deism”).
It would have been odd for the First Congress to propose an Amend-
ment with Religion Clauses that took no account of the President’s
religion. As with other historical matters pertinent here, however,
there are conflicting conclusions. R. Brookhiser, Founding Father:
Rediscovering George Washington 146 (1996) (“Washington’s God was
no watchmaker”). History writ small does not give clear and certain
answers to questions about the limits of “religion” or “establishment.”
34 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court

of a predominantly religious purpose behind the Counties’
third display, we affirm the Sixth Circuit in upholding the
preliminary injunction.
It is so ordered.
 Cite as: 545 U. S. ____ (2005) 1

O’CONNOR, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 03–1693
_________________

MCCREARY COUNTY, KENTUCKY, ET AL., PETI-
TIONERS v. AMERICAN CIVIL LIBERTIES
UNION OF KENTUCKY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 27, 2005]

JUSTICE O’CONNOR, concurring.
I join in the Court’s opinion. The First Amendment
expresses our Nation’s fundamental commitment to reli-
gious liberty by means of two provisions—one protecting
the free exercise of religion, the other barring establish-
ment of religion. They were written by the descendents of
people who had come to this land precisely so that they
could practice their religion freely. Together with the
other First Amendment guarantees—of free speech, a free
press, and the rights to assemble and petition—the Relig-
ion Clauses were designed to safeguard the freedom of
conscience and belief that those immigrants had sought.
They embody an idea that was once considered radical:
Free people are entitled to free and diverse thoughts,
which government ought neither to constrain nor to direct.
Reasonable minds can disagree about how to apply the
Religion Clauses in a given case. But the goal of the
Clauses is clear: to carry out the Founders’ plan of pre-
serving religious liberty to the fullest extent possible in a
pluralistic society. By enforcing the Clauses, we have kept
religion a matter for the individual conscience, not for the
prosecutor or bureaucrat. At a time when we see around
the world the violent consequences of the assumption of
religious authority by government, Americans may count
2 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES

UNION OF KY.

O’CONNOR, J., concurring

themselves fortunate: Our regard for constitutional
boundaries has protected us from similar travails, while
allowing private religious exercise to flourish. The well-
known statement that “[w]e are a religious people,” Zorach
v. Clauson, 343 U. S. 306, 313 (1952), has proved true.
Americans attend their places of worship more often than
do citizens of other developed nations, R. Fowler, A.
Hertzke, & L. Olson, Religion and Politics in America 28–
29 (2d ed. 1999), and describe religion as playing an espe-
cially important role in their lives, Pew Global Attitudes
Project, Among Wealthy Nations U. S. Stands Alone in its
Embrace of Religion (Dec. 19, 2002). Those who would
renegotiate the boundaries between church and state must
therefore answer a difficult question: Why would we trade
a system that has served us so well for one that has served
others so poorly?
Our guiding principle has been James Madison’s—that
“[t]he Religion . . . of every man must be left to the convic-
tion and conscience of every man.” Memorial and Remon-
strance Against Religious Assessments, 2 Writings of
James Madison 183, 184 (G. Hunt ed. 1901) (hereinafter
Memorial). To that end, we have held that the guarantees
of religious freedom protect citizens from religious incur-
sions by the States as well as by the Federal Government.
Everson v. Board of Ed. of Ewing, 330 U. S. 1, 16 (1947);
Cantwell v. Connecticut, 310 U. S. 296 (1940). Government
may not coerce a person into worshiping against her will,
nor prohibit her from worshiping according to it. It may
not prefer one religion over another or promote religion
over nonbelief. Everson, supra, at 15–16. It may not
entangle itself with religion. Walz v. Tax Comm’n of City of
New York, 397 U. S. 664, 674 (1970). And government may
not, by “endorsing religion or a religious practice,” “mak[e]
adherence to religion relevant to a person’s standing in the
political community.” Wallace v. Jaffree, 472 U. S. 38, 69
(1985) (O’CONNOR, J., concurring in judgment).
 Cite as: 545 U. S. ____ (2005) 3

O’CONNOR, J., concurring

When we enforce these restrictions, we do so for the
same reason that guided the Framers—respect for relig-
ion’s special role in society. Our Founders conceived of a
Republic receptive to voluntary religious expression, and
provided for the possibility of judicial intervention when
government action threatens or impedes such expression.
Voluntary religious belief and expression may be as
threatened when government takes the mantle of religion
upon itself as when government directly interferes with
private religious practices. When the government associ-
ates one set of religious beliefs with the state and identi-
fies nonadherents as outsiders, it encroaches upon the
individual’s decision about whether and how to worship.
In the marketplace of ideas, the government has vast
resources and special status. Government religious ex-
pression therefore risks crowding out private observance
and distorting the natural interplay between competing
beliefs. Allowing government to be a potential mouthpiece
for competing religious ideas risks the sort of division that
might easily spill over into suppression of rival beliefs.
Tying secular and religious authority together poses risks to
both.
Given the history of this particular display of the Ten
Commandments, the Court correctly finds an Establish-
ment Clause violation. See ante, at 19–25. The purpose
behind the counties’ display is relevant because it conveys
an unmistakable message of endorsement to the reason-
able observer. See Lynch v. Donnelly, 465 U. S. 668, 690
(1984) (O’CONNOR, J., concurring).
It is true that many Americans find the Commandments
in accord with their personal beliefs. But we do not count
heads before enforcing the First Amendment. See West
Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943)
(“The very purpose of a Bill of Rights was to withdraw
certain subjects from the vicissitudes of political contro-
versy, to place them beyond the reach of majorities and
4 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES

UNION OF KY.

O’CONNOR, J., concurring

officials and to establish them as legal principles to be
applied by the courts”). Nor can we accept the theory that
Americans who do not accept the Commandments’ validity
are outside the First Amendment’s protections. There is no
list of approved and disapproved beliefs appended to the
First Amendment—and the Amendment’s broad terms
(“free exercise,” “establishment,” “religion”) do not admit of
such a cramped reading. It is true that the Framers lived
at a time when our national religious diversity was nei-
ther as robust nor as well recognized as it is now. They
may not have foreseen the variety of religions for which
this Nation would eventually provide a home. They surely
could not have predicted new religions, some of them born
in this country. But they did know that line-drawing
between religions is an enterprise that, once begun, has no
logical stopping point. They worried that “the same au-
thority which can establish Christianity, in exclusion of all
other Religions, may establish with the same ease any
particular sect of Christians, in exclusion of all other
Sects.” Memorial 186. The Religion Clauses, as a result,
protect adherents of all religions, as well as those who
believe in no religion at all.
* * *
We owe our First Amendment to a generation with a
profound commitment to religion and a profound commit-
ment to religious liberty—visionaries who held their faith
“with enough confidence to believe that what should be
rendered to God does not need to be decided and collected
by Caesar.” Zorach, supra, at 324–325 (Jackson, J., dis-
senting). In my opinion, the display at issue was an estab-
lishment of religion in violation of our Constitution. For
the reasons given above, I join in the Court’s opinion.
 Cite as: 545 U. S. ____ (2005) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 03–1693
_________________

MCCREARY COUNTY, KENTUCKY, ET AL., PETI-
TIONERS v. AMERICAN CIVIL LIBERTIES
UNION OF KENTUCKY ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 27, 2005]

JUSTICE SCALIA, with whom THE CHIEF JUSTICE and
JUSTICE THOMAS join, and with whom JUSTICE KENNEDY
joins as to Parts II and III, dissenting.
I would uphold McCreary County and Pulaski County,
Kentucky’s (hereinafter Counties) displays of the Ten
Commandments. I shall discuss first, why the Court’s oft
repeated assertion that the government cannot favor
religious practice is false; second, why today’s opinion
extends the scope of that falsehood even beyond prior
cases; and third, why even on the basis of the Court’s false
assumptions the judgment here is wrong.
I
A
On September 11, 2001 I was attending in Rome, Italy
an international conference of judges and lawyers, princi-
pally from Europe and the United States. That night and
the next morning virtually all of the participants watched,
in their hotel rooms, the address to the Nation by the
President of the United States concerning the murderous
attacks upon the Twin Towers and the Pentagon, in which
thousands of Americans had been killed. The address
ended, as Presidential addresses often do, with the prayer
“God bless America.” The next afternoon I was ap-
2 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES

UNION OF KY.

SCALIA, J., dissenting

proached by one of the judges from a European country,
who, after extending his profound condolences for my
country’s loss, sadly observed “How I wish that the Head
of State of my country, at a similar time of national trag-
edy and distress, could conclude his address ‘God bless
______.’ It is of course absolutely forbidden.”
That is one model of the relationship between church
and state—a model spread across Europe by the armies of
Napoleon, and reflected in the Constitution of France,
which begins “France is [a] . . . secular . . . Republic.”
France Const., Art. 1, in 7 Constitutions of the Countries
of the World, p. 1 (G. Flanz ed. 2000). Religion is to be
strictly excluded from the public forum. This is not, and
never was, the model adopted by America. George Wash-
ington added to the form of Presidential oath prescribed
by Art. II, §1, cl. 8, of the Constitution, the concluding
words “so help me God.” See Blomquist, The Presidential
Oath, the American National Interest and a Call for Pre-
siprudence, 73 UMKC L. Rev. 1, 34 (2004). The Supreme
Court under John Marshall opened its sessions with the
prayer, “God save the United States and this Honorable
Court.” 1 C. Warren, The Supreme Court in United States
History 469 (rev. ed. 1926). The First Congress instituted
the practice of beginning its legislative sessions with a
prayer. Marsh v. Chambers, 463 U. S. 783, 787 (1983).
The same week that Congress submitted the Establish-
ment Clause as part of the Bill of Rights for ratification by
the States, it enacted legislation providing for paid chap-
lains in the House and Senate. Id., at 788. The day after
the First Amendment was proposed, the same Congress
that had proposed it requested the President to proclaim
“ a day of public thanksgiving and prayer, to be observed,
by acknowledging, with grateful hearts, the many and
signal favours of Almighty God.” See H. R. Jour., 1st
Cong., 1st Sess. 123 (1826 ed.); see also Sen. Jour., 1st
Sess., 88 (1820 ed.). President Washington offered the
 Cite as: 545 U. S. ____ (2005) 3

SCALIA, J., dissenting

first Thanksgiving Proclamation shortly thereafter, devot-
ing November 26, 1789 on behalf of the American people
“ ‘to the service of that great and glorious Being who is the
beneficent author of all the good that is, that was, or that
will be,’ ” Van Orden v. Perry, ante, at 7–8 (plurality opin-
ion) (quoting President Washington’s first Thanksgiving
Proclamation), thus beginning a tradition of offering grati-
tude to God that continues today. See Wallace v. Jaffree,
472 U. S. 38, 100–103 (1985) (REHNQUIST, J., dissenting).1
The same Congress also reenacted the Northwest Terri-
tory Ordinance of 1787, 1 Stat. 50, Article III of which
provided: “Religion, morality, and knowledge, being neces-
sary to good government and the happiness of mankind,
schools and the means of education shall forever be en-
couraged.” Id., at 52, n. (a). And of course the First
Amendment itself accords religion (and no other manner
of belief) special constitutional protection.
These actions of our First President and Congress and
the Marshall Court were not idiosyncratic; they reflected
the beliefs of the period. Those who wrote the Constitu-
tion believed that morality was essential to the well-being
of society and that encouragement of religion was the best
way to foster morality. The “fact that the Founding Fa-
thers believed devotedly that there was a God and that the
unalienable rights of man were rooted in Him is clearly
evidenced in their writings, from the Mayflower Compact to
the Constitution itself.” School Dist. of Abington Township
v. Schempp, 374 U. S. 203, 213 (1963). See Underkuffler-
Freund, The Separation of the Religious and the Secular:
A Foundational Challenge to First-Amendment Theory, 36
Wm. & Mary L. Rev. 837, 896–918 (1995). President

——————
1 See,e.g., President’s Thanksgiving Day 2004 Proclamation (Nov. 23,
2004), available at http://www.whitehouse.gov/news/releases/2004/11/
20041123-4.html (all internet materials as visited June 24, 2005 and
available in Clerk of Court’s case file).
4 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES

UNION OF KY.

SCALIA, J., dissenting

Washington opened his Presidency with a prayer, see
Inaugural Addresses of the Presidents of the United
States 1, 2 (1989), and reminded his fellow citizens at the
conclusion of it that “reason and experience both forbid us
to expect that National morality can prevail in exclusion of
religious principle.” Farewell Address (1796), reprinted in
35 Writings of George Washington 229 (J. Fitzpatrick ed.
1940). President John Adams wrote to the Massachusetts
Militia, “we have no government armed with power capa-
ble of contending with human passions unbridled by mo-
rality and religion. . . . Our Constitution was made only
for a moral and religious people. It is wholly inadequate
to the government of any other.” Letter (Oct. 11, 1798),
reprinted in 9 Works of John Adams 229 (C. Adams ed.
1971). Thomas Jefferson concluded his second inaugural
address by inviting his audience to pray:
“I shall need, too, the favor of that Being in whose
hands we are, who led our fathers, as Israel of old,
from their native land and planted them in a country
flowing with all the necessaries and comforts of life;
who has covered our infancy with His providence and
our riper years with His wisdom and power and to
whose goodness I ask you to join in supplications with
me that He will so enlighten the minds of your ser-
vants, guide their councils, and prosper their meas-
ures that whatsoever they do shall result in your
good, and shall secure to you the peace, friendship,
and approbation of all nations.” Inaugural Addresses
of the Presidents of the United States, at 18, 22–23.
James Madison, in his first inaugural address, likewise
placed his confidence “in the guardianship and guidance of
that Almighty Being whose power regulates the destiny of
nations, whose blessings have been so conspicuously dis-
pensed to this rising Republic, and to whom we are bound
to address our devout gratitude for the past, as well as our
 Cite as: 545 U. S. ____ (2005) 5

SCALIA, J., dissenting

fervent supplications and best hopes for the future.” Id.,
at 25, 28.
Nor have the views of our people on this matter signifi-
cantly changed. Presidents continue to conclude the Presi-
dential oath with the words “so help me God.” Our legisla-
tures, state and national, continue to open their sessions
with prayer led by official chaplains. The sessions of this
Court continue to open with the prayer “God save the
United States and this Honorable Court.” Invocation of
the Almighty by our public figures, at all levels of govern-
ment, remains commonplace. Our coinage bears the motto
“IN GOD WE TRUST.” And our Pledge of Allegiance
contains the acknowledgment that we are a Nation “under
God.” As one of our Supreme Court opinions rightly ob-
served, “We are a religious people whose institutions
presuppose a Supreme Being.” Zorach v. Clauson, 343
U. S. 306, 313 (1952), repeated with approval in Lynch v.
Donnelly, 465 U. S. 668, 675 (1984); Marsh, 463 U. S., at
792; Abington Township, supra, at 213.
With all of this reality (and much more) staring it in the
face, how can the Court possibly assert that “ ‘the First
Amendment mandates governmental neutrality between
. . . religion and nonreligion,’ ” ante, at 11, and that
“[m]anifesting a purpose to favor . . . adherence to religion
generally,” ante, at 12, is unconstitutional? Who says so?
Surely not the words of the Constitution. Surely not the
history and traditions that reflect our society’s constant
understanding of those words. Surely not even the cur-
rent sense of our society, recently reflected in an Act of
Congress adopted unanimously by the Senate and with
only 5 nays in the House of Representatives, see 148 Cong.
Rec. S6226 (2002); id., at H7186, criticizing a Court of
Appeals opinion that had held “under God” in the Pledge
of Allegiance unconstitutional. See Act of Nov. 13, 2002,
§§1(9), 2(a), 3(a), 116 Stat. 2057, 2058, 2060–2061 (reaf-
firming the Pledge of Allegiance and the National Motto
6 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES

UNION OF KY.

SCALIA, J., dissenting

(“In God We Trust”) and stating that the Pledge of Alle-
giance is “clearly consistent with the text and intent of the
Constitution”). Nothing stands behind the Court’s asser-
tion that governmental affirmation of the society’s belief in
God is unconstitutional except the Court’s own say-so,
citing as support only the unsubstantiated say-so of earlier
Courts going back no farther than the mid-20th century.
See ante, at 11, citing Corporation of Presiding Bishop of
Church of Jesus Christ of Latter-day Saints v. Amos, 483
U. S. 327, 335 (1987), in turn citing Lemon v. Kurtzman,
403 U. S. 602, 612 (1971), in turn citing Board of Ed. of
Central School Dist. No. 1 v. Allen, 392 U. S. 236, 243
(1968), in turn quoting Abington Township, supra, at 222, in
turn citing Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15
(1947).2 And it is, moreover, a thoroughly discredited say-
so. It is discredited, to begin with, because a majority of
the Justices on the current Court (including at least one
Member of today’s majority) have, in separate opinions,
repudiated the brain-spun “Lemon test” that embodies the
supposed principle of neutrality between religion and
irreligion. See Lamb’s Chapel v. Center Moriches Union
Free School Dist., 508 U. S. 384, 398–399 (1993) (SCALIA, J.,
concurring in judgment) (collecting criticism of Lemon); Van
Orden, ante, at 1, 6 (THOMAS, J., concurring); Board of Ed.
of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687,
720 (1994) (O’CONNOR, J., concurring in part and concurring
in judgment); County of Allegheny v. American Civil Liber-

——————
2 The fountainhead of this jurisprudence, Everson v. Board of Ed. of

Ewing, based its dictum that “[n]either a state nor the Federal Govern-
ment . . . can pass laws which . . . aid all religions,” 330 U. S., at 15, on a
review of historical evidence that focused on the debate leading up to the
passage of the Virginia Bill for Religious Liberty, see id., at 11–13. A
prominent commentator of the time remarked (after a thorough review of
the evidence himself) that it appeared the Court had been “sold . . . a bill
of goods.” Corwin, The Supreme Court as National School Board, 14 Law
& Contemp. Prob. 3, 16 (1949).
 Cite as: 545 U. S. ____ (2005) 7

SCALIA, J., dissenting

ties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 655–
656, 672–673 (1989) (KENNEDY, J., concurring in judgment
in part and dissenting in part); Wallace, 472 U. S., at 112
(REHNQUIST, J., dissenting); see also Committee for Public
Ed. and Religious Liberty v. Regan, 444 U. S. 646, 671
(1980) (STEVENS, J., dissenting) (disparaging “the sisyphean
task of trying to patch together the ‘blurred, indistinct, and
variable barrier’ described in Lemon”). And it is discredited
because the Court has not had the courage (or the foolhar-
diness) to apply the neutrality principle consistently.
What distinguishes the rule of law from the dictatorship
of a shifting Supreme Court majority is the absolutely
indispensable requirement that judicial opinions be
grounded in consistently applied principle. That is what
prevents judges from ruling now this way, now that—
thumbs up or thumbs down—as their personal preferences
dictate. Today’s opinion forthrightly (or actually, some-
what less than forthrightly) admits that it does not rest
upon consistently applied principle. In a revealing foot-
note, ante, at 11, n. 10, the Court acknowledges that the
“Establishment Clause doctrine” it purports to be applying
“lacks the comfort of categorical absolutes.” What the
Court means by this lovely euphemism is that sometimes
the Court chooses to decide cases on the principle that
government cannot favor religion, and sometimes it does
not. The footnote goes on to say that “[i]n special in-
stances we have found good reason” to dispense with the
principle, but “[n]o such reasons present themselves here.”
Ibid. It does not identify all of those “special instances,”
much less identify the “good reason” for their existence.
I have cataloged elsewhere the variety of circumstances
in which this Court—even after its embrace of Lemon’s
stated prohibition of such behavior—has approved gov-
ernment action “undertaken with the specific intention of
improving the position of religion,” Edwards v. Aguillard,
482 U. S. 578, 616 (1987) (SCALIA, J., dissenting). See id.,
8 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
SCALIA, J., dissenting

616–618. Suffice it to say here that when the government
relieves churches from the obligation to pay property
taxes, when it allows students to absent themselves from
public school to take religious classes, and when it ex-
empts religious organizations from generally applicable
prohibitions of religious discrimination, it surely means to
bestow a benefit on religious practice—but we have ap-
proved it. See Amos, supra, at 338 (exemption from federal
prohibition of religious discrimination by employers); Walz
v. Tax Comm’n of City of New York, 397 U. S. 664, 673
(1970) (property tax exemption for church property); Zorach,
343 U. S., at 308, 315 (law permitting students to leave
public school for the purpose of receiving religious educa-
tion). Indeed, we have even approved (post-Lemon) gov-
ernment-led prayer to God. In Marsh v. Chambers, supra,
the Court upheld the Nebraska State Legislature’s prac-
tice of paying a chaplain to lead it in prayer at the opening
of legislative sessions. The Court explained that “[t]o
invoke Divine guidance on a public body entrusted with
making the laws is not . . . an ‘establishment’ of religion or
a step toward establishment; it is simply a tolerable ac-
knowledgment of beliefs widely held among the people of
this country.” 463 U. S., at 792. (Why, one wonders, is not
respect for the Ten Commandments a tolerable acknowl-
edgment of beliefs widely held among the people of this
country?)
The only “good reason” for ignoring the neutrality prin-
ciple set forth in any of these cases was the antiquity of
the practice at issue. See Marsh, supra, at 786–792, 794;
Walz, supra, at 676–680. That would be a good reason for
finding the neutrality principle a mistaken interpretation
of the Constitution, but it is hardly a good reason for
letting an unconstitutional practice continue. We did not
hide behind that reason in Reynolds v. Sims, 377 U. S. 533
(1964), which found unconstitutional bicameral state
legislatures of a sort that had existed since the beginning
 Cite as: 545 U. S. ____ (2005) 9

SCALIA, J., dissenting

of the Republic. And almost monthly, it seems, the Court
has not shrunk from invalidating aspects of criminal
procedure and penology of similar vintage. See, e.g., Deck
v. Missouri, 544 U. S. ___, ___ (2005) (slip op., at 10–11)
(invalidating practice of shackling defendants absent
“special circumstances”); id., at ___ (slip op., at 7–11)
(THOMAS, J., dissenting); Roper v. Simmons, 543 U. S. ___,
___ (2005) (slip op., at 14) (invalidating practice of execut-
ing under-18-year-old offenders); id., at ___ (slip op., at 2,
n. 1) (SCALIA, J., dissenting). What, then, could be the
genuine “good reason” for occasionally ignoring the neu-
trality principle? I suggest it is the instinct for self-
preservation, and the recognition that the Court, which
“has no influence over either the sword or the purse,” The
Federalist No. 78, p. 412 (J. Pole ed. 2005), cannot go too
far down the road of an enforced neutrality that contra-
dicts both historical fact and current practice without
losing all that sustains it: the willingness of the people to
accept its interpretation of the Constitution as definitive,
in preference to the contrary interpretation of the democ-
ratically elected branches.
Besides appealing to the demonstrably false principle
that the government cannot favor religion over irreligion,
today’s opinion suggests that the posting of the Ten Com-
mandments violates the principle that the government
cannot favor one religion over another. See ante, at 19;
see also Van Orden, ante, at 11–13 (STEVENS, J., dissent-
ing). That is indeed a valid principle where public aid or
assistance to religion is concerned, see Zelman v. Sim-
mons-Harris, 536 U. S. 639, 652 (2002), or where the free
exercise of religion is at issue, Church of Lukumi Babalu
Aye, Inc. v. Hialeah, 508 U. S. 520, 532–533 (1993); id., at
557–558 (SCALIA, J., concurring in part and concurring in
judgment), but it necessarily applies in a more limited
sense to public acknowledgment of the Creator. If religion
in the public forum had to be entirely nondenominational,
10 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
SCALIA, J., dissenting

there could be no religion in the public forum at all. One
cannot say the word “God,” or “the Almighty,” one cannot
offer public supplication or thanksgiving, without contra-
dicting the beliefs of some people that there are many
gods, or that God or the gods pay no attention to human
affairs. With respect to public acknowledgment of reli-
gious belief, it is entirely clear from our Nation’s historical
practices that the Establishment Clause permits this
disregard of polytheists and believers in unconcerned
deities, just as it permits the disregard of devout atheists.
The Thanksgiving Proclamation issued by George Wash-
ington at the instance of the First Congress was scrupu-
lously nondenominational—but it was monotheistic. 3 In
Marsh v. Chambers, supra, we said that the fact the par-
ticular prayers offered in the Nebraska Legislature were
“in the Judeo-Christian tradition,” id., at 793, posed no
additional problem, because “there is no indication that
the prayer opportunity has been exploited to proselytize or
advance any one, or to disparage any other, faith or be-
lief,” id., at 794–795.
Historical practices thus demonstrate that there is a
distance between the acknowledgment of a single Creator
and the establishment of a religion. The former is, as
Marsh v. Chambers put it, “a tolerable acknowledgment of
beliefs widely held among the people of this country.” Id.,
at 792. The three most popular religions in the United
States, Christianity, Judaism, and Islam—which com-

——————
3 The Court thinks it “surpris[ing]” and “truly remarkable” to believe

that “the deity the Framers had in mind” (presumably in all the in-
stances of invocation of the deity I have cited) “was the God of monothe-
ism.” Ante, at 32. This reaction would be more comprehensible if the
Court could suggest what other God (in the singular, and with a capital
G) there is, other than “the God of monotheism." This is not necessarily
the Christian God (though if it were, one would expect Christ regu-
larly to be invoked, which He is not); but it is inescapably the God of
monotheism.
 Cite as: 545 U. S. ____ (2005) 11

SCALIA, J., dissenting

bined account for 97.7% of all believers—are monotheistic.
See U. S. Dept. of Commerce, Bureau of Census, Statisti-
cal Abstract of the United States: 2004–2005, p. 55 (124th
ed. 2004) (Table No. 67). All of them, moreover (Islam
included), believe that the Ten Commandments were
given by God to Moses, and are divine prescriptions for a
virtuous life. See 13 Encyclopedia of Religion 9074 (2d ed.
2005); The Qur’an 104 (M. Haleem trans. 2004). Publicly
honoring the Ten Commandments is thus indistinguish-
able, insofar as discriminating against other religions is
concerned, from publicly honoring God. Both practices are
recognized across such a broad and diverse range of the
population—from Christians to Muslims—that they can-
not be reasonably understood as a government endorse-
ment of a particular religious viewpoint.4
B
A few remarks are necessary in response to the criticism
of this dissent by the Court, as well as JUSTICE STEVENS’
criticism in the related case of Van Orden v. Perry, ante, p.
1. JUSTICE STEVENS’ writing is largely devoted to an
attack upon a straw man. “[R]eliance on early religious
proclamations and statements made by the Founders is
. . . problematic,” he says, “because those views were not
espoused at the Constitutional Convention in 1787 nor
enshrined in the Constitution’s text.” Van Orden, ante, at
18–19 (dissenting opinion) (footnote omitted). But I have
not relied upon (as he and the Court in this case do) mere
“proclamations and statements” of the Founders. I have
——————
4 This is not to say that a display of the Ten Commandments could
never constitute an impermissible endorsement of a particular religious
view. The Establishment Clause would prohibit, for example, govern-
mental endorsement of a particular version of the Decalogue as au-
thoritative. Here the display of the Ten Commandments alongside
eight secular documents, and the plaque’s explanation for their inclu-
sion, make clear that they were not posted to take sides in a theological
dispute.
12 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
SCALIA, J., dissenting

relied primarily upon official acts and official proclama-
tions of the United States or of the component branches of
its Government, including the First Congress’s beginning
of the tradition of legislative prayer to God, its appoint-
ment of congressional chaplains, its legislative proposal of
a Thanksgiving Proclamation, and its reenactment of the
Northwest Territory Ordinance; our first President’s
issuance of a Thanksgiving Proclamation; and invocation
of God at the opening of sessions of the Supreme Court.
The only mere “proclamations and statements” of the
Founders I have relied upon were statements of Founders
who occupied federal office, and spoke in at least a quasi-
official capacity—Washington’s prayer at the opening of
his Presidency and his Farewell Address, President John
Adams’ letter to the Massachusetts Militia, and Jefferson’s
and Madison’s inaugural addresses. The Court and
JUSTICE STEVENS, by contrast, appeal to no official or even
quasi-official action in support of their view of the Estab-
lishment Clause—only James Madison’s Memorial and
Remonstrance Against Religious Assessments, written
before the federal Constitution had even been proposed,
two letters written by Madison long after he was Presi-
dent, and the quasi-official inaction of Thomas Jefferson in
refusing to issue a Thanksgiving Proclamation. See ante,
at 30–31; Van Orden, ante, at 19 (STEVENS, J., dissenting).
The Madison Memorial and Remonstrance, dealing as it
does with enforced contribution to religion rather than
public acknowledgment of God, is irrelevant; one of the
letters is utterly ambiguous as to the point at issue here,
and should not be read to contradict Madison’s statements
in his first inaugural address, quoted earlier; even the
other letter does not disapprove public acknowledgment of
God, unless one posits (what Madison’s own actions as
President would contradict) that reference to God contra-
dicts “the equality of all religious sects.” See Letter from
James Madison to Edward Livingston (July 10, 1822), in 5
 Cite as: 545 U. S. ____ (2005) 13

SCALIA, J., dissenting

The Founders’ Constitution 105–106 (P. Kurland & R.
Lerner eds. 1987). And as to Jefferson: the notoriously
self-contradicting Jefferson did not choose to have his
nonauthorship of a Thanksgiving Proclamation inscribed
on his tombstone. What he did have inscribed was his
authorship of the Virginia Statute for Religious Freedom,
a governmental act which begins “Whereas Almighty God
hath created the mind free . . . .” Va. Code Ann. §57–1
(Lexis 2003).
It is no answer for JUSTICE STEVENS to say that the
understanding that these official and quasi-official actions
reflect was not “enshrined in the Constitution’s text.” Van
Orden, ante, at 18 (dissenting opinion). The Establish-
ment Clause, upon which JUSTICE STEVENS would rely,
was enshrined in the Constitution’s text, and these official
actions show what it meant. There were doubtless some
who thought it should have a broader meaning, but those
views were plainly rejected. JUSTICE STEVENS says that
reliance on these actions is “bound to paint a misleading
picture,” Van Orden, ante, at 19, but it is hard to see why.
What is more probative of the meaning of the Establish-
ment Clause than the actions of the very Congress that
proposed it, and of the first President charged with observ-
ing it?
JUSTICE STEVENS also appeals to the undoubted fact
that some in the founding generation thought that the
Religion Clauses of the First Amendment should have a
narrower meaning, protecting only the Christian religion
or perhaps only Protestantism. See Van Orden, ante, at
20–22. I am at a loss to see how this helps his case, except
by providing a cloud of obfuscating smoke. (Since most
thought the Clause permitted government invocation of
monotheism, and some others thought it permitted gov-
ernment invocation of Christianity, he proposes that it be
construed not to permit any government invocation of
religion at all.) At any rate, those narrower views of the
14 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
SCALIA, J., dissenting

Establishment Clause were as clearly rejected as the more
expansive ones. Washington’s First Thanksgiving Proc-
lamation is merely an example. All of the actions of Wash-
ington and the First Congress upon which I have relied,
virtually all Thanksgiving Proclamations throughout our
history,5 and all the other examples of our Government’s
favoring religion that I have cited, have invoked God, but
not Jesus Christ.6 Rather than relying upon JUSTICE
STEVENS’ assurance that “[t]he original understanding of
the type of ‘religion’ that qualified for constitutional pro-
tection under the First amendment certainly did not in-
clude . . . followers of Judaism and Islam,” Van Orden,
ante, at 22; see also ante, at 32–33, I would prefer to take
the word of George Washington, who, in his famous Letter
to the Hebrew Congregation of Newport, Rhode Island,
wrote that,
“All possess alike liberty of conscience and immunities
of citizenship. It is now no more that toleration is
spoken of, as if it was by the indulgence of one class of
——————
5 The two exceptions are the March 23, 1798 proclamation of John

Adams, which asks God “freely to remit all our offenses” “through the
Redeemer of the World,” http://www.pilgrimhall.org/ThanxProc1789.htm,
and the November 17, 1972 proclamation of Richard Nixon, which
stated, “From Moses at the Red Sea to Jesus preparing to feed the
multitudes, the Scriptures summon us to words and deeds of gratitude,
even before divine blessings are fully perceived,” Presidential Procla-
mation No. 4170, 37 Fed. Reg. 24647 (1972).
6 JUSTICE STEVENS finds that Presidential inaugural and farewell

speeches (which are the only speeches upon which I have relied) do not
violate the Establishment Clause only because everyone knows that
they express the personal religious views of the speaker, and not
government policy. See Van Orden, ante, at 17–18 (dissenting opinion).
This is a peculiar stance for one who has voted that a student-led
invocation at a high school football game and a rabbi-led invocation at a
high school graduation did constitute the sort of governmental en-
dorsement of religion that the Establishment Clause forbids. See
Santa Fe Independent School Dist. v. Doe, 530 U. S. 290 (2000); Lee v.
Weisman, 505 U. S. 577 (1992).
 Cite as: 545 U. S. ____ (2005) 15

SCALIA, J., dissenting

people, that another enjoyed the exercise of their in-
herent natural rights.” 6 The Papers of George Wash-
ington, Presidential Series 285 (D. Twohig et al. eds.
1996).
The letter concluded, by the way, with an invocation of the
one God:
“May the father of all mercies scatter light and not
darkness in our paths, and make us all in our several
vocations useful here, and in his own due time and
way everlastingly happy.” Ibid.
JUSTICE STEVENS says that if one is serious about fol-
lowing the original understanding of the Establishment
Clause, he must repudiate its incorporation into the Four-
teenth Amendment, and hold that it does not apply
against the States. See Van Orden, ante, at 24–26 (dis-
senting opinion). This is more smoke. JUSTICE STEVENS
did not feel that way last Term, when he joined an opinion
insisting upon the original meaning of the Confrontation
Clause, but nonetheless applying it against the State of
Washington. See Crawford v. Washington, 541 U. S. 36
(2004). The notion that incorporation empties the incorpo-
rated provisions of their original meaning has no support
in either reason or precedent.
JUSTICE STEVENS argues that original meaning should
not be the touchstone anyway, but that we should rather
“expoun[d] the meaning of constitutional provisions with
one eye towards our Nation’s history and the other fixed
on its democratic aspirations.” Van Orden, ante, at 27–28
(dissenting opinion). This is not the place to debate the
merits of the “living Constitution,” though I must observe
that JUSTICE STEVENS’ quotation from McCulloch v. Mary-
land, 4 Wheat. 316, 407 (1819), refutes rather than sup-
ports that approach.7 Even assuming, however, that the
——————
7 See Scalia, Originalism: The Lesser Evil, 57 Cincinnati L. Rev. 852–
16 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
SCALIA, J., dissenting

meaning of the Constitution ought to change according to
“democratic aspirations,” why are those aspirations to be
found in Justices’ notions of what the Establishment
Clause ought to mean, rather than in the democratically
adopted dispositions of our current society? As I have
observed above, numerous provisions of our laws and
numerous continuing practices of our people demonstrate
that the government’s invocation of God (and hence the
government’s invocation of the Ten Commandments) is
unobjectionable—including a statute enacted by Congress
almost unanimously less than three years ago, stating
that “under God” in the Pledge of Allegiance is constitu-
tional, see 116 Stat., at 2058. To ignore all this is not to
give effect to “democratic aspirations” but to frustrate
them.
Finally, I must respond to JUSTICE STEVENS’ assertion
that I would “marginaliz[e] the belief systems of more
than 7 million Americans” who adhere to religions that are
not monotheistic. Van Orden, ante, at 13–14, n. 18 (dis-
senting opinion). Surely that is a gross exaggeration. The
beliefs of those citizens are entirely protected by the Free
Exercise Clause, and by those aspects of the Establish-
ment Clause that do not relate to government acknowl-
edgment of the Creator. Invocation of God despite their
beliefs is permitted not because nonmonotheistic religions
cease to be religions recognized by the religion clauses of
the First Amendment, but because governmental invoca-
tion of God is not an establishment. JUSTICE STEVENS
fails to recognize that in the context of public acknowl-
edgments of God there are legitimate competing interests:
On the one hand, the interest of that minority in not
feeling “excluded”; but on the other, the interest of the
overwhelming majority of religious believers in being able
to give God thanks and supplication as a people, and with
——————
853 (1989).
 Cite as: 545 U. S. ____ (2005) 17

SCALIA, J., dissenting

respect to our national endeavors. Our national tradition
has resolved that conflict in favor of the majority.8 It is
not for this Court to change a disposition that accounts,
many Americans think, for the phenomenon remarked
upon in a quotation attributed to various authors, includ-
ing Bismarck, but which I prefer to associate with Charles
de Gaulle: “God watches over little children, drunkards,
and the United States of America.”
II
As bad as the Lemon test is, it is worse for the fact that,
since its inception, its seemingly simple mandates have
been manipulated to fit whatever result the Court aimed
to achieve. Today’s opinion is no different. In two re-
spects it modifies Lemon to ratchet up the Court’s hostility
to religion. First, the Court justifies inquiry into legisla-
tive purpose, not as an end itself, but as a means to ascer-
tain the appearance of the government action to an “ ‘ob-
jective observer.’ ” Ante, at 13. Because in the Court’s
view the true danger to be guarded against is that the
objective observer would feel like an “outside[r]” or “not [a]
full membe[r] of the political community,” its inquiry
focuses not on the actual purpose of government action,
but the “purpose apparent from government action.” Ante,
at 12. Under this approach, even if a government could
show that its actual purpose was not to advance religion,
it would presumably violate the Constitution as long as
the Court’s objective observer would think otherwise. See
Capitol Square Review and Advisory Bd. v. Pinette, 515
——————
8 Nothing so clearly demonstrates the utter inconsistency of our Es-
tablishment Clause jurisprudence as JUSTICE O’CONNOR’s stirring
concurrence in the present case. “[W]e do not,” she says, “count heads
before enforcing the First Amendment.” Ante, at 4. But JUSTICE
O’CONNOR joined the opinion of the Court in Marsh v. Chambers, 463
U. S. 783 (1983) which held legislative prayer to be “a tolerable ac-
knowledgment of beliefs widely held among the people of this country.”
Id., at 792.
18 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
SCALIA, J., dissenting

U.S. 753, 776–777 (1995) (O’CONNOR, J., concurring in
part and concurring in judgment) (stating that “when the
reasonable observer would view a government practice as
endorsing religion, . . . it is our duty to hold the practice
invalid,” even if the law at issue was neutral and the
benefit conferred on the religious entity was incidental).
I have remarked before that it is an odd jurisprudence
that bases the unconstitutionality of a government prac-
tice that does not actually advance religion on the hopes of
the government that it would do so. See Edwards, 482
U. S., at 639. But that oddity pales in comparison to the
one invited by today’s analysis: the legitimacy of a gov-
ernment action with a wholly secular effect would turn on
the misperception of an imaginary observer that the gov-
ernment officials behind the action had the intent to ad-
vance religion.
Second, the Court replaces Lemon’s requirement that
the government have “a secular . . . purpose,” 403 U. S., at
612 (emphasis added), with the heightened requirement
that the secular purpose “predominate” over any purpose
to advance religion. Ante, at 15–17. The Court treats this
extension as a natural outgrowth of the longstanding
requirement that the government’s secular purpose not be
a sham, but simple logic shows the two to be unrelated. If
the government’s proffered secular purpose is not genuine,
then the government has no secular purpose at all. The
new demand that secular purpose predominate contradicts
Lemon’s more limited requirement, and finds no support
in our cases. In all but one of the five cases in which this
Court has invalidated a government practice on the basis
of its purpose to benefit religion, it has first declared that
the statute was motivated entirely by the desire to ad-
vance religion. See Santa Fe Independent School Dist. v.
Doe, 530 U. S. 290, 308–309 (2000) (dismissing the school
district’s proffered secular purposes as shams); Wallace, 472
U. S., at 56 (finding “no secular purpose”) (emphasis
 Cite as: 545 U. S. ____ (2005) 19

SCALIA, J., dissenting

added); Stone v. Graham, 449 U. S. 39, 41 (1980) (per
curiam) (finding that “Kentucky’s statute requiring the
posting of the Ten Commandments in public school rooms
has no secular legislative purpose”) (emphasis added);
Epperson v. Arkansas, 393 U. S. 97, 107–109 (1968). In
Edwards, supra, the Court did say that the state action
was invalid because its “primary” or “preeminent” purpose
was to advance a particular religious belief, 482 U. S., at
590, 593, 594, but that statement was unnecessary to the
result, since the Court rejected the State’s only proffered
secular purpose as a sham. See id., at 589.
I have urged that Lemon’s purpose prong be abandoned,
because (as I have discussed in Part I) even an exclusive
purpose to foster or assist religious practice is not neces-
sarily invalidating. But today’s extension makes things
even worse. By shifting the focus of Lemon’s purpose
prong from the search for a genuine, secular motivation to
the hunt for a predominantly religious purpose, the Court
converts what has in the past been a fairly limited inquiry
into a rigorous review of the full record.9 Those responsi-
ble for the adoption of the Religion Clauses would surely
regard it as a bitter irony that the religious values they
——————
9 The Court’s reflexive skepticism of the government’s asserted secu-

lar purposes is flatly inconsistent with the deferential approach taken
by our previous Establishment Clause cases. We have repeated many
times that, where a court undertakes the sensitive task of reviewing a
government’s asserted purpose, it must take the government at its
word absent compelling evidence to the contrary. See, e.g., Edwards v.
Aguillard, 482 U. S. 578, 586 (stating that “the Court is . . . deferential to
a State’s articulation of a secular purpose,” unless that purpose is insin-
cere or a sham); Mueller v. Allen, 463 U. S. 388, 394–395 (1983) (ascribing
the Court’s disinclination to invalidate government practices under
Lemon’s purpose prong to its “reluctance to attribute unconstitutional
motives to the States, particularly when a plausible secular purpose for
the State’s program may be discerned from the face of the statute”); see
also Wallace v. Jaffree, 472 U. S. 38, 74 (O’CONNOR, J., concurring in
judgment) (“the inquiry into the purpose of the legislature . . . should be
deferential and limited”).
20 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
SCALIA, J., dissenting

designed those Clauses to protect have now become so
distasteful to this Court that if they constitute anything
more than a subordinate motive for government action
they will invalidate it.
III
Even accepting the Court’s Lemon-based premises, the
displays at issue here were constitutional.
A
To any person who happened to walk down the hallway
of the McCreary or Pulaski County Courthouse during the
roughly nine months when the Foundations Displays were
exhibited, the displays must have seemed unremarkable—
if indeed they were noticed at all. The walls of both court-
houses were already lined with historical documents and
other assorted portraits; each Foundations Display was
exhibited in the same format as these other displays and
nothing in the record suggests that either County took
steps to give it greater prominence.
Entitled “The Foundations of American Law and Gov-
ernment Display,” each display consisted of nine equally
sized documents: the original version of the Magna Carta,
the Declaration of Independence, the Bill of Rights, the
Star Spangled Banner, the Mayflower Compact of 1620, a
picture of Lady Justice, the National Motto of the United
States (“In God We Trust”), the Preamble to the Kentucky
Constitution, and the Ten Commandments. The displays
did not emphasize any of the nine documents in any way:
The frame holding the Ten Commandments was of the
same size and had the same appearance as that which
held each of the other documents. See 354 F. 3d 438, 443
(CA6 2003).
Posted with the documents was a plaque, identifying the
display, and explaining that it “contains documents that
played a significant role in the foundation of our system of
 Cite as: 545 U. S. ____ (2005) 21

SCALIA, J., dissenting

law and government.” Ibid. The explanation related to
the Ten Commandments was third in the list of nine and
did not serve to distinguish it from the other documents.
It stated:
“The Ten Commandments have profoundly influ-
enced the formation of Western legal thought and the
formation of our country. That influence is clearly
seen in the Declaration of Independence, which de-
clared that, ‘We hold these truths to be self-evident,
that all men are created equal, that they are endowed
by their Creator with certain unalienable Rights, that
among these are Life, Liberty, and the pursuit of Hap-
piness.’ The Ten Commandments provide the moral
background of the Declaration of Independence and
the foundation of our legal tradition.” Ibid.
B
On its face, the Foundations Displays manifested the
purely secular purpose that the Counties asserted before
the District Court: “to display documents that played a
significant role in the foundation of our system of law and
government.” Affidavit of Judge Jimmie Green in Support
of Defendants’ Opposition to Plaintiffs’ Motion for Con-
tempt or, in the Alternative, for Supplemental Preliminary
Injunction in Civ. A. No. 99–507 (ED Ky.), p. 2. That the
Displays included the Ten Commandments did not trans-
form their apparent secular purpose into one of impermis-
sible advocacy for Judeo-Christian beliefs. Even an iso-
lated display of the Decalogue conveys, at worst, “an
equivocal message, perhaps of respect for Judaism, for
religion in general, or for law.” Allegheny County, 492
U. S., at 652 (STEVENS, J., concurring in part and dissent-
ing in part). But when the Ten Commandments appear
alongside other documents of secular significance in a
display devoted to the foundations of American law and
government, the context communicates that the Ten
22 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
SCALIA, J., dissenting

Commandments are included, not to teach their binding
nature as a religious text, but to show their unique contri-
bution to the development of the legal system. See id., at
652–653. This is doubly true when the display is intro-
duced by a document that informs passersby that it “con-
tains documents that played a significant role in the foun-
dation of our system of law and government.”
The same result follows if the Ten Commandments
display is viewed in light of the government practices that
this Court has countenanced in the past. The acknowl-
edgment of the contribution that religion in general, and
the Ten Commandments in particular, have made to our
Nation’s legal and governmental heritage is surely no
more of a step towards establishment of religion than was
the practice of legislative prayer we approved in Marsh v.
Chambers, 463 U. S. 783 (1983), and it seems to be on par
with the inclusion of a crèche or a menorah in a “Holiday”
display that incorporates other secular symbols, see Lynch,
supra, at 679–680; Allegheny County, supra, at 621. The
parallels between this case and Marsh and Lynch are
sufficiently compelling that they ought to decide this case,
even under the Court’s misguided Establishment Clause
jurisprudence.10
——————
10 The Court’s only response is that the inclusion of the Ten Com-
mandments in a display about the foundations of American law reflects
“a purpose to call on citizens to act in prescribed ways as a personal
response to divine authority,” in a way that legislative prayer and the
inclusion of a crèche in a Holiday display do not. See ante, at 30, n. 24.
That might be true if the Commandments were displayed by them-
selves in a church, or even in someone’s home. It seems to me patently
untrue—given the Decalogue’s “undeniable historical meaning” as a
symbol of the religious foundations of law, see Van Orden, ante, at 11
(plurality opinion)—when they are posted in a courthouse display of
historical documents. The observer would no more think himself
“called upon to act” in conformance with the Commandments than he
would think himself called upon to think and act like William Bradford
because of the courthouse posting of the Mayflower Compact—
 Cite as: 545 U. S. ____ (2005) 23

SCALIA, J., dissenting

Acknowledgment of the contribution that religion has
made to our Nation’s legal and governmental heritage
partakes of a centuries-old tradition. Members of this
Court have themselves often detailed the degree to which
religious belief pervaded the National Government during
the founding era. See Lynch, supra, at 674–678; Marsh,
supra, at 786–788; Lee v. Weisman, 505 U. S. 577, 633–636
(1992) (SCALIA, J., dissenting); Wallace, 472 U. S. at 100–
106 (REHNQUIST, J., dissenting); Engel v. Vitale, 370 U. S.
421, 446–450, and n. 3 (1962) (Stewart, J., dissenting).
Display of the Ten Commandments is well within the
mainstream of this practice of acknowledgment. Federal,
State, and local governments across the Nation have
engaged in such display.11 The Supreme Court Building
itself includes depictions of Moses with the Ten Com-
mandments in the Courtroom and on the east pediment of
the building, and symbols of the Ten Commandments
“adorn the metal gates lining the north and south sides of
the Courtroom as well as the doors leading into the Court-
room.” Van Orden, ante, at 9 (plurality opinion). Similar
depictions of the Decalogue appear on public buildings and
monuments throughout our Nation’s Capital. Ibid. The

——————
especially when he is told that the exhibit consists of documents that
contributed to American law and government.
11 The significant number of cases involving Ten Commandments

displays in the last two years suggests the breadth of their appearance.
See, e.g., Books v. Elkhart County, 401 F. 3d 857, 858–859 (CA7 2005)
(Ten Commandments included in a display identical to the Foundations
display); Mercier v. Fraternal Order of Eagles, 395 F. 3d 693, 696 (CA7
2005) (Ten Commandments monument in city park since 1965);
Modrovich v. Allegheny County, 385 F. 3d 397, 399 (CA3 2004) (Ten
Commandments plaque, donated in 1918, on wall of Allegheny County
Courthouse); Freethought Soc. of Greater Philadelphia v. Chester
County, 334 F. 3d 247, 249 (CA3 2003) (Ten Commandment plaque,
donated in 1920, on wall of Chester County Courthouse); King v.
Richmond County, 331 F. 3d 1271, 1273–1274 (CA11 2003) (Ten Com-
mandments depicted in county seal since 1872).
24 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
SCALIA, J., dissenting

frequency of these displays testifies to the popular un-
derstanding that the Ten Commandments are a founda-
tion of the rule of law, and a symbol of the role that
religion played, and continues to play, in our system of
government.
Perhaps in recognition of the centrality of the Ten Com-
mandments as a widely recognized symbol of religion in
public life, the Court is at pains to dispel the impression
that its decision will require governments across the coun-
try to sandblast the Ten Commandments from the public
square. See ante, at 26. The constitutional problem, the
Court says, is with the Counties’ purpose in erecting the
Foundations Displays, not the displays themselves. The
Court adds in a footnote: “One consequence of taking
account of the purpose underlying past actions is that the
same government action may be constitutional if taken in
the first instance and unconstitutional if it has a sectarian
heritage.” Ante, at 18, n. 14.
This inconsistency may be explicable in theory, but I
suspect that the “objective observer” with whom the Court
is so concerned will recognize its absurdity in practice. By
virtue of details familiar only to the parties to litigation
and their lawyers, McCreary and Pulaski Counties, Ken-
tucky, and Rutherford County, Tennessee, have been
ordered to remove the same display that appears in court-
houses from Mercer County, Kentucky to Elkhart County,
Indiana. Compare American Civil Liberties Union of
Tenn. v. Rutherford County, 209 F. Supp. 2d 799, 808–809
(MD Tenn. 2002) (holding Foundations Display to be
unconstitutional based on prior actions of county commis-
sion) with Books v. Elkhart County, 401 F. 3d 857, 869
(CA7 2005) (sustaining Foundations Display as “secular . .
. in its purpose and effect”); American Civil Liberties Un-
ion of Ky. v. Mercer County, 219 F. Supp. 2d 777, 787–789
(ED Ky. 2002) (rejecting Establishment Clause challenge
to an identical Foundations Display and distinguishing
 Cite as: 545 U. S. ____ (2005) 25

SCALIA, J., dissenting

McCreary County on the ground that the County’s purpose
had not been “tainted with any prior history”). Displays
erected in silence (and under the direction of good legal
advice) are permissible, while those hung after discussion
and debate are deemed unconstitutional. Reduction of the
Establishment Clause to such minutiae trivializes the
Clause’s protection against religious establishment; in-
deed, it may inflame religious passions by making the
passing comments of every government official the subject
of endless litigation.
C
In any event, the Court’s conclusion that the Counties
exhibited the Foundations Displays with the purpose of
promoting religion is doubtful. In the Court’s view, the
impermissible motive was apparent from the initial dis-
plays of the Ten Commandments all by themselves: When
that occurs, the Court says, “a religious object is unmis-
takable.” Ante, at 21. Surely that cannot be. If, as dis-
cussed above, the Commandments have a proper place in
our civic history, even placing them by themselves can be
civically motivated—especially when they are placed, not
in a school (as they were in the Stone case upon which the
Court places such reliance), but in a courthouse. Cf. Van
Orden, ante, at 4 (BREYER, J., concurring in judgment)
(“The circumstances surrounding the display’s placement
on the capital grounds, and its physical setting suggest
that the State itself intended the . . . nonreligious aspects
of the tablets’ message to predominate”). And the fact that
at the posting of the exhibit a clergyman was present is
unremarkable (clergymen taking particular pride in the
role of the Ten Commandments in our civic history); and
even more unremarkable the fact that the clergyman
“testified to the certainty of the existence of God,” ante, at
21.
The Court has in the past prohibited government ac-
26 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
SCALIA, J., dissenting

tions that “proselytize or advance any one, or . . . dispar-
age any other, faith or belief,” see Marsh, 463 U. S., at
794–795, or that apply some level of coercion (though I
and others have disagreed about the form that coercion
must take), see, e.g., Lee v. Weisman, 505 U. S., at 592
(prayer at high-school graduation invalid because of “subtle
coercive pressure”); id., at 642 (SCALIA, J., dissenting). The
passive display of the Ten Commandments, even standing
alone, does not begin to do either. What JUSTICE
KENNEDY said of the crèche in Allegheny County is equally
true of the Counties’ original Ten Commandments
displays:
“No one was compelled to observe or participate in
any religious ceremony or activity. [T]he count[ies]
[did not] contribut[e] significant amounts of tax
money to serve the cause of one religious faith. [The
Ten Commandments] are purely passive symbols of
[the religious foundation for many of our laws and
governmental institutions]. Passersby who disagree
with the message conveyed by th[e] displays are free
to ignore them, or even to turn their backs, just as
they are free to do when they disagree with any other
form of government speech.” 492 U. S., at 664 (opin-
ion concurring in judgment in part and dissenting in
part).
Nor is it the case that a solo display of the Ten Com-
mandments advances any one faith. They are assuredly a
religious symbol, but they are not so closely associated
with a single religious belief that their display can rea-
sonably be understood as preferring one religious sect over
another. The Ten Commandments are recognized by
Judaism, Christianity, and Islam alike as divinely given.
See 13 Encyclopedia of Religion 9074 (2d ed. 2005).12
——————
12 Because there are interpretational differences between faiths and
 Cite as: 545 U. S. ____ (2005) 27

SCALIA, J., dissenting

The Court also points to the Counties’ second displays,
which featured a number of statements in historical
documents reflecting a religious influence, and the resolu-
tions that accompanied their erection, as evidence of an
impermissible religious purpose.13 In the Court’s view,
“[t]he [second] display’s unstinting focus . . . on religious
passages, show[s] that the Counties were posting the
Commandments precisely because of their sectarian con-
tent.” Ante, at 22. No, all it necessarily shows is that the

——————
within faiths concerning the meaning and perhaps even the text of the
Commandments, JUSTICE STEVENS maintains that any display of the
text of the Ten Commandments is impermissible because it “invariably
places the [government] at the center of a serious sectarian dispute.”
Van Orden, ante, at 13 (dissenting opinion). I think not. The sectarian
dispute regarding text, if serious, is not widely known. I doubt that
most religious adherents are even aware that there are competing
versions with doctrinal consequences (I certainly was not). In any
event, the context of the display here could not conceivably cause the
viewer to believe that the government was taking sides in a doctrinal
controversy.
13 Posted less than a month after respondents filed suit, the second

displays included an excerpt from the Declaration of Independence, the
Preamble to the Kentucky Constitution, a page from the Congressional
Record declaring 1983 to be the Year of the Bible and the proclamation
of President Reagan stating the same, a proclamation of President
Lincoln designating April 30, 1863 as a National Day of Prayer and
Humiliation, an excerpt from Lincoln’s “Reply to Loyal Colored People
of Baltimore upon Presentation of a Bible” stating that “[t]he Bible is
the best gift God has ever given to man,” and the Mayflower Compact.
96 F. Supp. 2d 679, 684 (ED Ky., 2000). The Counties erected the
displays in accordance with a resolution passed by their legislative
bodies, authorizing the County-Judge Executives “to read or post the
Ten Commandments as the precedent legal code upon which the civil
and criminal codes of the Commonwealth of Kentucky are founded,”
and to display alongside the Ten Commandments copies of the docu-
ments listed above “without censorship because of any Christian or
religious references in these writings, documents, and historical re-
cords.” Def. Exh. 1 in Memorandum in Support of Defendants’ Motion
to Dismiss in Civ. A. No. 99–507, p. 1 (ED Ky.) (hereinafter Def. Exh.
1).
28 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
SCALIA, J., dissenting

exhibit was meant to focus upon the historic role of reli-
gious belief in our national life—which is entirely permis-
sible. And the same can be said of the resolution. To
forbid any government focus upon this aspect of our his-
tory is to display what Justice Goldberg called “untutored
devotion to the concept of neutrality,” Abington Township,
374 U. S., at 306 (concurring opinion), that would commit
the Court (and the Nation) to a revisionist agenda of
secularization.
Turning at last to the displays actually at issue in this
case, the Court faults the Counties for not repealing the
resolution expressing what the Court believes to be an
impermissible intent. Under these circumstances, the
Court says, “no reasonable observer could swallow the
claim that the Counties had cast off the objective so un-
mistakable in the earlier displays.” Ante, at 24. Even
were I to accept all that the Court has said before, I would
not agree with that assessment. To begin with, of course,
it is unlikely that a reasonable observer would even have
been aware of the resolutions, so there would be nothing to
“cast off.” The Court implies that the Counties may have
been able to remedy the “taint” from the old resolutions by
enacting a new one. See ante, at 23–24. But that action
would have been wholly unnecessary in light of the expla-
nation that the Counties included with the displays them-
selves: A plaque next to the documents informed all who
passed by that each display “contains documents that
played a significant role in the foundation of our system of
law and government.” Additionally, there was no reason
for the Counties to repeal or repudiate the resolutions
adopted with the hanging of the second displays, since
they related only to the second displays. After complying
with the District Court’s order to remove the second dis-
plays “immediately,” and erecting new displays that in
content and by express assertion reflected a different
purpose from that identified in the resolutions, the Coun-
 Cite as: 545 U. S. ____ (2005) 29

SCALIA, J., dissenting

ties had no reason to believe that their previous resolu-
tions would be deemed to be the basis for their actions.14
After the Counties discovered that the sentiments ex-
pressed in the resolutions could be attributed to their most
recent displays (in oral argument before this Court), they
repudiated them immediately.
In sum: The first displays did not necessarily evidence
an intent to further religious practice; nor did the second
displays, or the resolutions authorizing them; and there is
in any event no basis for attributing whatever intent
motivated the first and second displays to the third.
Given the presumption of regularity that always accom-
panies our review of official action, see supra, at 18–19
n. 9, the Court has identified no evidence of a purpose to
advance religion in a way that is inconsistent with our
cases. The Court may well be correct in identifying the
third displays as the fruit of a desire to display the Ten
Commandments, ante, at 24, but neither our cases nor our
——————
14 Contrary to the Court’s suggestion, see ante, at 24, n. 20, it is clear
that the resolutions were closely tied to the second displays, but not to the
third. Each of the documents included in the second displays was author-
ized by the resolutions, and those displays, consistent with the resolutions’
direction to “post the Ten Commandments as the precedent legal code
upon which the civil and criminal codes of the Commonwealth of Ken-
tucky are founded,” Def. Exh. 1, consisted of a large copy of the Ten
Commandments alongside much smaller framed copies of other historical,
religious documents. The third displays, in contrast, included documents
not mentioned in the resolutions (the Magna Carta and a picture of Lady
Justice) and did not include documents authorized by the resolutions
(correspondence and proclamations of Abraham Lincoln and the Resolu-
tion of Congress declaring 1983 to be the Year of the Bible).
The resolutions also provided that they were to be posted beside the
displays that they authorized. Def. Exh. 1, at 9. Yet respondents have
never suggested the resolutions were posted next to the third displays,
and the record before the Court indicates that they were not. The
photos included in the Appendix show that the third displays included
10 frames—the nine historical documents and the prefatory statement
explaining the relevance of each of the documents. See App. to Pet. for
Cert. 177a (McCreary County), 178a (Pulaski County).
30 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
SCALIA, J., dissenting

history support its assertion that such a desire renders the
fruit poisonous.
* * *
For the foregoing reasons, I would reverse the judgment
of the Court of Appeals.