(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. AMERICAN 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, respondents, the American Civil Liberties Union (ACLU) et al., sued 

under 42 U. S. C. §1983 to enjoin the displays on the ground that 

they violated the First Amendment’s Establishment Clause. The 

Counties then adopted nearly identical resolutions calling for a more 

extensive exhibit meant to show that the Commandments are Kentucky’s “precedent legal code.” The resolutions noted several grounds 

for taking that position, including the state legislature’s acknowledgment of Christ as the “Prince of Ethics.” The displays around the 

Commandments were modified to include eight smaller, historical 

documents containing religious references as their sole common element, e.g., the Declaration of Independence’s “endowed by their Creator” passage. Entering a preliminary injunction, the District Court 

followed the Lemon v. Kurtzman, 403 U. S. 602, test to find, inter alia, 

that the original display lacked any secular purpose because the Commandments are a distinctly religious document, and that the second 

version lacked such a purpose because the Counties narrowly tailored 

their selection of foundational documents to those specifically referring 

to Christianity. After changing counsel, the Counties revised the exhibits again. No new resolution authorized the new exhibits, nor did 

the Counties repeal the resolutions that preceded the second one. 

The new posting, entitled “The Foundations of American Law and 

Government Display,” consists of nine framed documents of equal 

size. One sets out the Commandments explicitly identified as the 

“King James Version,” quotes them at greater length, and explains 

that they have profoundly influenced the formation of Western legal 
2 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES

UNION OF KY. 

Syllabus 

thought and this Nation. With the Commandments are framed copies of, e.g., the Star Spangled Banner’s lyrics and the Declaration of 

Independence, accompanied by statements about their historical and 

legal significance. On the ACLU’s motion, the District Court included this third display in the injunction despite the Counties’ professed intent to show that the Commandments were part of the foundation of American Law and Government and to educate County 

citizens as to the documents. The court took proclaiming the Commandments’ foundational value as a religious, rather than secular, 

purpose under Stone v. Graham, 449 U. S. 39, and found that the 

Counties’ asserted educational goals crumbled upon an examination of 

this litigation’s history. Affirming, the Sixth Circuit stressed that, 

under Stone, displaying the Commandments bespeaks a religious object unless they are integrated with a secular message. The court 

saw no integration here because of a lack of a demonstrated analytical or historical connection between the Commandments and the 

other documents. 

Held: 

1. A determination of the Counties’ purpose is a sound basis for ruling on the Establishment Clause complaints. The Counties’ objective 

may be dispositive of the constitutional enquiry. Pp. 10–19.

(a) 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 government acts with the ostensible and predominant purpose of advancing 

religion, it violates the central Establishment Clause value of official 

religious neutrality, there being no neutrality when the government’s 

ostensible object is to take sides. Corporation of Presiding Bishop of 

Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 

335. A purpose to favor one faith over another, or adherence to religion generally, clashes with the “understanding . . . that liberty and 

social stability demand a . . . tolerance that respects the religious 

views of all citizens.” Zelman v. Simmons-Harris, 536 U. S. 639, 718. 

Pp. 11–12. 

(b) The Court declines the Counties’ request to abandon Lemon’s 

purpose test. Their assertions that true “purpose” is unknowable, 

and its search merely an excuse for courts to act selectively and unpredictably in picking out evidence of subjective intent, are as seismic 

as they are unconvincing. Examination of purpose is a staple of 

statutory interpretation for every American appellate court, e.g., 

General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 600, 

and governmental purpose is a key element of a good deal of constitutional doctrine, e.g., Washington v. Davis, 426 U. S. 229. Scrutinizing

purpose makes practical sense in Establishment Clause analysis, 
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 trivializing the purpose enquiry. They would read the Court’s cases as if 

the enquiry were so naive that any transparent claim to secularity 

would satisfy it, and they would cut context out of the enquiry, to the 

point of ignoring history, no matter what bearing it actually had on 

the significance of current circumstances. There is no precedent for 

these arguments, or reason supporting them. Pp. 15–19.

(1) A legislature’s stated reasons will generally warrant the 

deference owed in the first instance to such official claims, but Lemon 

requires the secular purpose to be genuine, not a sham, and not 

merely secondary to a religious objective, see, e.g., Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 308. In those unusual 

cases where the claim was an apparent sham, or the secular purpose 

secondary, the unsurprising results have been findings of no adequate secular object, as against a predominantly religious one. See, 

e.g., Stone, supra, at 41. Pp. 15–17.

(2) The Counties’ argument that purpose in a case like this 

should be inferred only from the latest in a series of governmental actions, however close they may all be in time and subject, bucks common sense. Reasonable observers have reasonable memories, and the 

Court’s precedents sensibly forbid an observer “to turn a blind eye to 

the context in which [the] policy arose.” Santa Fe, supra, at 315. 

Pp. 17–19. 

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

purpose. Pp. 19–26. 

(a) Stone is the Court’s initial benchmark as its only case dealing 

with the constitutionality of displaying the Commandments. It recognized that the Commandments are an “instrument of religion” and 

that, at least on the facts before the Court, their text’s display could 

presumptively be understood as meant to advance religion: although 

state law specifically required their posting in classrooms, their isolated exhibition did not allow even for an argument that secular education explained their being there. 449 U. S., at 41, n. 3. But Stone 

did not purport to decide the constitutionality of every possible way 

the government might set out the Commandments, and under the 

Establishment Clause detail is key, County of Allegheny v. American 
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 display. Stone stressed the significance of integrating the Commandments into a secular scheme to forestall the broadcast of an otherwise 

clearly religious message, 449 U. S., at 42, and for good reason, the 

Commandments being a central point of reference in the religious 

and moral history of Jews and Christians. They proclaim the existence of a monotheistic god (no other gods), regulate details of religious obligation (no graven images, sabbath breaking, or vain oath 

swearing), and unmistakably rest even the universally accepted prohibitions (as against murder, theft, etc.) on the sanction of the divinity proclaimed at the text’s beginning. Displaying that text is thus 

different from symbolic representation, like tablets with 10 roman 

numerals, which could be seen as alluding to a general notion of law, 

not a sectarian conception of faith. Where the text is set out, the insistence of the religious message is hard to avoid in the absence of a 

context plausibly suggesting a message going beyond an excuse to 

promote the religious point of view. The display in Stone had no such 

context, and the Counties’ solo exhibit here did nothing more to 

counter the sectarian implication than the Stone postings. The reasonable observer could only think that the Counties meant to emphasize and celebrate the Commandments’ religious message. Pp. 20–21.

(c) The Counties’ second display, unlike the first, did not hang 

the Commandments in isolation, but included the statement of the 

government’s purpose expressly set out in the county resolutions, and 

underscored it by juxtaposing the Commandments to other documents whose references to God were highlighted as their sole common element. The display’s unstinting focus was on religious passages, showing that the Counties posted the Commandments 

precisely because of their sectarian content. That demonstration of 

the government’s objective was enhanced by serial religious references and the accompanying resolutions’ claim about the embodiment 

of ethics in Christ. Together, the display and resolution presented an 

indisputable, and undisputed, showing of an impermissible purpose. 

Pp. 21–22. 

(d) The lower courts’ conclusion that no legitimizing secular purpose prompted the Counties’ third display, the “Foundations of 

American Law and Government” exhibit, is amply justified. That 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 foundation of American government. In trying to persuade the District Court 

to lift the preliminary injunction, the Counties cited several new purposes for the third version, including a desire to educate County citizens as to the significance of the documents displayed. The Counties’ 

claims, however, persuaded neither that court, which was intimately 

familiar with this litigation’s details, nor the Sixth Circuit. Where 

both lower courts were unable to discern an arguably valid secular 

purpose, this Court normally should hesitate to find one. Edwards v. 

Aguillard, 482 U. S. 578, 594. The Counties’ new statements of purpose were presented only as a litigating position, there being no further authorizing resolutions by the Counties’ governing boards. And 

although repeal of the earlier county authorizations would not have 

erased them from the record of evidence bearing on current purpose, 

the extraordinary resolutions for the second displays passed just 

months earlier were not repealed or otherwise repudiated. Indeed, 

the sectarian spirit of the resolutions found enhanced expression in 

the third display, which quoted more of the Commandment’s purely 

religious language than the first two displays had done. No reasonable observer, therefore, could accept the claim that the Counties had 

cast off the objective so unmistakable in the earlier displays. Nor did 

the selection of posted material suggest a clear theme that might 

prevail over evidence of the continuing religious object. For example,

it is at least odd in a collection of documents said to be “foundational” 

to include a patriotic anthem, but to omit the Fourteenth Amendment, the most significant structural provision adopted since the 

original framing. An observer would probably suspect the Counties 

of reaching for any way to keep a religious document on the walls of 

courthouses constitutionally required to embody religious neutrality. 

Pp. 22–25. 

(e) In holding that the preliminary injunction was adequately 

supported by evidence that the Counties’ purpose had not changed at 

the third stage, the Court does not decide that the Counties’ past actions forever taint any effort on their part to deal with the subject 

matter. The Court holds only that purpose is to be taken seriously

under the Establishment Clause and is to be understood in light of 

context. District courts are fully capable of adjusting preliminary relief to take account of genuine changes in constitutionally significant 

conditions. Nor does the Court hold that a sacred text can never be 

integrated constitutionally into a governmental display on law or history. Its own courtroom frieze depicts Moses holding tablets exhibiting a portion of the secularly phrased Commandments; in the company of 17 other lawgivers, most of them secular figures, there is no 
6 MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES 

UNION OF KY. 

Syllabus 

risk that Moses would strike an observer as evidence that the National Government was violating religious neutrality. P. 26. 

354 F. 3d 438, affirmed. 

SOUTER, J., delivered the opinion of the Court, in which STEVENS, 

O’CONNOR, GINSBURG, and BREYER, JJ., joined. O’CONNOR, J., filed a 

concurring opinion. SCALIA, J., filed a dissenting opinion, in which 

REHNQUIST, C. J., and THOMAS, J., joined, and in which KENNEDY, J., 

joined as to Parts II and III. 
_________________ 

_________________ 

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, Washington, 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., PETITIONERS 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 counties’ 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 Commandments 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 controversy over the propriety of the display, the Commandments 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, Commonwealth Journal, Jul. 25, 1999, p. A1, col. 2, in Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction 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 

—————— 

1We do not consider here a display of the Ten Commandments in 

schoolrooms in Harlan County, Kentucky, that was litigated in consolidated 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 Liberties 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 

—————— 

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

Commandments that were part of the County’s first and second displays. 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 authorized a second, expanded display, by nearly identical resolutions 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 Commandments are codified in Kentucky’s civil and criminal

laws”; that the Kentucky House of Representatives had in 

1993 “voted unanimously . . . to adjourn . . . ‘in remembrance 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 courtroom”; 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-

—————— 

3The 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) 4The 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 Congressional 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 Independence; the Preamble to the Constitution of Kentucky; the 

national motto, “In God We Trust”; a page from the Congressional 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 Lincoln’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 preliminary 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 documents.” 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 document—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 preliminary 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 resolutions 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 thyself 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-

—————— 

5The 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 manservant, 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 significance. The comment on the Ten Commandments reads: 

“The Ten Commandments have profoundly influenced

the formation of Western legal thought and the formation 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 background of the Declaration of Independence and the 

foundation of our legal tradition.” Id., at 180a. 

The ACLU moved to supplement the preliminary injunction 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 surrounding the Commandments with “specific references to Christianity,” 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 quotation marks omitted). 

—————— 

6Before the District Court issued the modified injunction, the Counties removed the label of “King James Version” and the citation to 

Exodus. 145 F. Supp. 2d 845, 847 (ED Ky. 2001). 7The Court also found that the effect of the third display was to endorse 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 documents” 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 injunction, 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 historical 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 “profoundly 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 emphasize “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 American 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 “history 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 undeniably 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 religious purpose in the government’s posting of the Commandments, 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 inherently 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 rationalization would suffice, under a standard oblivious to the 

history of religious government action like the progression 

of exhibits in this case. 

—————— 

8The Sixth Circuit did not decide whether the display had the impermissible 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 endorsement 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 government 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 preventing [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. 

10At 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. SimmonsHarris, 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’CONNOR, J., concurring)).

Indeed, the purpose apparent from government action 

can have an impact more significant than the result expressly 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 government had forsaken the religious purposes behind centuries-old predecessor laws. Id., at 449–451. 

B 

Despite the intuitive importance of official purpose to 

the realization of Establishment Clause values, the Counties ask us to abandon Lemon’s purpose test, or at least to 

truncate any enquiry into purpose here. Their first argument 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 selectively and unpredictably in picking out evidence of subjective intent. The assertions are as seismic as they are 

unconvincing.

Examination of purpose is a staple of statutory interpretation that makes up the daily fare of every appellate 

court in the country, e.g., General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 600 (2004) (interpreting 

statute in light of its “text, structure, purpose, and history”), 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 required for Equal Protection violation); Hunt v. Washington 

State Apple Advertising Comm’n, 432 U. S. 333, 352–353 

(1977) (discriminatory purpose relevant to dormant Commerce 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 understanding 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’CONNOR, 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 purpose 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 religious texts on the wall serve[d] no . . . educational function,” 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 complaints 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 statute,’ ” 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 secular . . . 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 characterization 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 advance 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 impermissible purpose” language, but citing Lynch and 

Stone). As we said, the Court often does accept governmental 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 dispatched quickly. They argue that purpose in a case like 

—————— 

11Moreover, 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 preeminent 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. 13The 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 heightened 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 probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of 

the government’s actions and competent to learn what 

history has to show, Santa Fe Independent School Dist. v. 

Doe, 530 U. S., at 308 (objective observer is familiar with 

“ ‘implementation of’ ” government action) (quoting Wallace, supra, at 73) (O’CONNOR, J., concurring in judgment)); Edwards, supra, at 595 (enquiry looks to “the 

historical context of the statute . . . and the specific sequence 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 

—————— 

14One 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 Commandments are an “instrument of religion” and that, at least on 

the facts before it, the display of their text could presumptively be understood as meant to advance religion: although 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 demonstrating 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. 15We 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 similarities to the first one in the sequence here: both set out a 

text of the Commandments as distinct from any traditionally 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 reason, the Commandments being a central point of reference

in the religious and moral history of Jews and Christians. 

They proclaim the existence of a monotheistic god (no 

other gods). They regulate details of religious obligation 

(no graven images, no sabbath breaking, no vain oath 

swearing). And they unmistakably rest even the universally 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 different 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 suggesting a message going beyond an excuse to promote the

religious point of view. The display in Stone had no context that might have indicated an object beyond the religious 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. Donnelly], 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 ceremony 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 Commandments’ 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 

—————— 

16Although 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 disclaimer: “The secular application of the Ten Commandments is clearly 

seen in its adoption as the fundamental legal code of Western Civilization 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 references, 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 references” 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 Commandments 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 Commandments to other documents with highlighted references 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 religious 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 version two as “dead and buried.” Reply Brief for Petitioners

15. Their refusal to defend the second display is understandable, 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 Commandments 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.’ ” Edwards, 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-

—————— 

18The Counties’ other purposes were: 

“to erect a display containing the Ten Commandments that is constitutional; . . . 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 second 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 displays 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 

—————— 

19Following 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. 20The 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 Commandments that also includes such documents as “the National anthem 

. . . the National Motto . . . the preamble to the Kentucky Constitution[,] the Declaration of Independence [and] the Mayflower Compact 

. . . without censorship because of any Christian or religious references.” Def. Exh. 1, at 1. The third display contains all of these documents, 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 Commandments’ . . . influence is clearly seen in the Declaration,” 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 

—————— 

21The Counties have now backed away from their broad assertion 

that the Commandments provide “the” moral background of the Declaration of Independence, and now merely claim that many of the Commandments “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. 22The 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 predecessors 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 supported 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 purpose 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 preliminary relief to take account of genuine changes in constitutionally 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 governmental 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. 23The dissent notes that another depiction of Moses and the Commandments 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 Amendment contains no textual definition of “establishment,” 

and the term is certainly not self-defining. No one contends 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 settings, issues of about interpreting inexact Establishment 

Clause language, like difficult interpretative issues generally, 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 sailors 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 principle 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 prerogative 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 individual 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 Massachusetts 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 sensible standard for applying it. To be sure, given its generality 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 Founding 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 separation] 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 condemnation”). 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 understood 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 importance 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 monotheism, is consistent with the establishment ban. 

But the dissent’s argument for the original understanding 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 evidence that some of the Framers thought some endorsement 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 expressions 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’ understanding 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 guiding principle).24 

But the fact is that we do have more to go on, for there 

is also evidence supporting the proposition that the Framers intended the Establishment Clause to require governmental neutrality in matters of religion, including neutrality in statements acknowledging religion. The very 

language of the Establishment Clause represented a

significant departure from early drafts that merely prohibited 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 development 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 Madison, whom the dissent claims as supporting its thesis, 

—————— 

24The 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 Commandments. 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 understanding 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. Indeterminate edges are the kind to have in a constitution 

—————— 

25The dissent cites material suggesting that separationists like Jefferson and Madison were not absolutely consistent in abstaining from 

official religious acknowledgment. Post, at 4. But, a record of inconsistent historical practice is too weak a lever to upset decades of precedent 

adhering to the neutrality principle. And it is worth noting that Jefferson 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 foreseen 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 remarkable 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, Separation 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 common ground in the interpretation of a Constitution “intended to endure for ages to come,” McCulloch v. Maryland, 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. Bartholomew’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 

—————— 

26There 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 Amendment 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., PETITIONERS 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 religious liberty by means of two provisions—one protecting 

the free exercise of religion, the other barring establishment 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 Religion 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 preserving 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 wellknown 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 especially 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 conviction and conscience of every man.” Memorial and Remonstrance 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 incursions 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 religion’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 associates one set of religious beliefs with the state and identifies 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 expression 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 Establishment 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 reasonable 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 controversy, 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 neither 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 authority 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 commitment 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., dissenting). In my opinion, the display at issue was an establishment 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., PETITIONERS 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, principally 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 tragedy 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 Washington 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 Presiprudence, 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 Establishment Clause as part of the Bill of Rights for ratification by 

the States, it enacted legislation providing for paid chaplains 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, devoting 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 opinion) (quoting President Washington’s first Thanksgiving 

Proclamation), thus beginning a tradition of offering gratitude 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 Territory Ordinance of 1787, 1 Stat. 50, Article III of which 

provided: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, 

schools and the means of education shall forever be encouraged.” 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 Constitution 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 Fathers 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 UnderkufflerFreund, 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 

—————— 

1See, 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 capable of contending with human passions unbridled by morality 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 servants, guide their councils, and prosper their measures 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 dispensed 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 significantly changed. Presidents continue to conclude the Presidential oath with the words “so help me God.” Our legislatures, 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 government, 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 observed, “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 current 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 (reaffirming 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 Allegiance is “clearly consistent with the text and intent of the 

Constitution”). Nothing stands behind the Court’s assertion 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 sayso. 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-

—————— 

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

Ewing, based its dictum that “[n]either a state nor the Federal Government . . . 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 foolhardiness) 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, somewhat less than forthrightly) admits that it does not rest 

upon consistently applied principle. In a revealing footnote, 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 instances 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 government 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 exempts religious organizations from generally applicable 

prohibitions of religious discrimination, it surely means to 

bestow a benefit on religious practice—but we have approved 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 education). Indeed, we have even approved (post-Lemon) government-led prayer to God. In Marsh v. Chambers, supra, 

the Court upheld the Nebraska State Legislature’s practice 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 acknowledgment 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 acknowledgment of beliefs widely held among the people of this 

country?) 

The only “good reason” for ignoring the neutrality principle 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 executing 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 neutrality principle? I suggest it is the instinct for selfpreservation, 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 contradicts both historical fact and current practice without 

losing all that sustains it: the willingness of the people to 

accept its interpretation of the Constitution as definitive, 

in preference to the contrary interpretation of the democratically 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 Commandments 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., dissenting). That is indeed a valid principle where public aid or 

assistance to religion is concerned, see Zelman v. Simmons-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 contradicting 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 religious 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 Washington at the instance of the First Congress was scrupulously nondenominational—but it was monotheistic. 3 In 

Marsh v. Chambers, supra, we said that the fact the particular 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 belief,” 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-

—————— 

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

that “the deity the Framers had in mind” (presumably in all the instances of invocation of the deity I have cited) “was the God of monotheism.” 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 regularly 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, Statistical 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 indistinguishable, 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 cannot be reasonably understood as a government endorsement 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 

—————— 

4This 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, governmental endorsement of a particular version of the Decalogue as authoritative. Here the display of the Ten Commandments alongside 

eight secular documents, and the plaque’s explanation for their inclusion, 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 proclamations 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 appointment 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 quasiofficial 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 Establishment 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 President, 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 contradicts “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 Establishment 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 Establishment Clause than the actions of the very Congress that 

proposed it, and of the first President charged with observing 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 government 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 Proclamation is merely an example. All of the actions of Washington 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 protection under the First amendment certainly did not include . . . 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 

—————— 

5The 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 Proclamation 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 endorsement 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 inherent natural rights.” 6 The Papers of George Washington, 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 following the original understanding of the Establishment 

Clause, he must repudiate its incorporation into the Fourteenth Amendment, and hold that it does not apply 

against the States. See Van Orden, ante, at 24–26 (dissenting 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 incorporated 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. Maryland, 4 Wheat. 316, 407 (1819), refutes rather than supports that approach.7 Even assuming, however, that the 

—————— 

7See 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 constitutional, 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 (dissenting 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 Establishment Clause that do not relate to government acknowledgment 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 invocation of God is not an establishment. JUSTICE STEVENS 

fails to recognize that in the context of public acknowledgments 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, including 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 respects it modifies Lemon to ratchet up the Court’s hostility 

to religion. First, the Court justifies inquiry into legislative purpose, not as an end itself, but as a means to ascertain the appearance of the government action to an “ ‘objective 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 

—————— 

8Nothing so clearly demonstrates the utter inconsistency of our Establishment 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 acknowledgment 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 practice 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 government action with a wholly secular effect would turn on 

the misperception of an imaginary observer that the government officials behind the action had the intent to advance 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 advance 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 necessarily 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 responsible for the adoption of the Religion Clauses would surely 

regard it as a bitter irony that the religious values they 

—————— 

9The Court’s reflexive skepticism of the government’s asserted secular 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 insincere 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 courthouses 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 Government 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 influenced the formation of Western legal thought and the 

formation 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.’ 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 Contempt 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 transform their apparent secular purpose into one of impermissible advocacy for Judeo-Christian beliefs. Even an isolated 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 dissenting 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 contribution to the development of the legal system. See id., at 

652–653. This is doubly true when the display is introduced by a document that informs passersby that it “contains documents that played a significant role in the foundation 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 acknowledgment 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 

—————— 

10The Court’s only response is that the inclusion of the Ten Commandments 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 themselves 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 Commandments 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 Courtroom.” 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. 11The 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 Commandments 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 understanding that the Ten Commandments are a foundation 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 Commandments 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 country 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, Kentucky, and Rutherford County, Tennessee, have been

ordered to remove the same display that appears in courthouses 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 commission) 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 Union 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; indeed, 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 displays of the Ten Commandments all by themselves: When 

that occurs, the Court says, “a religious object is unmistakable.” Ante, at 21. Surely that cannot be. If, as discussed 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 . . . disparage 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 (opinion concurring in judgment in part and dissenting in 

part). 

Nor is it the case that a solo display of the Ten Commandments 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 reasonably 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 

—————— 

12Because 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 resolutions 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 content.” 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. 13Posted 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 documents listed above “without censorship because of any Christian or 

religious references in these writings, documents, and historical records.” 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 religious belief in our national life—which is entirely permissible. And the same can be said of the resolution. To 

forbid any government focus upon this aspect of our history 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 unmistakable 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 explanation that the Counties included with the displays themselves: 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 displays “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 resolutions would be deemed to be the basis for their actions.14 

After the Counties discovered that the sentiments expressed 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 accompanies 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 

—————— 

14Contrary 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 authorized 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 Kentucky 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 Resolution 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.