McCreary County, KY, et al. v. ACLU of KY, et al. (06/27/2005)

Questions presented: (1) Whether the Establishment Clause is violated by a privately-donated display on government property that includes eleven equal-size frames containing an explanation of the display along with nine historical documents and symbols that played a role in the development of American law and government where only one of the framed documents is the Ten Commandments and the remaining documents and symbols are secular? (2) Whether a prior display by the government in a courthouse containing the Ten Commandments that was enjoined by a court permanently taints and thereby precludes any future display by the same government when the subsequent display articulates a secular purpose and where the Ten Commandments is a minority among numerous other secular historical documents and symbols? (3) Whether the Lemon test should be overruled since the test is unworkable and has fostered excessive confusion in Establishment Clause jurisprudence? (4) Whether a new test for Establishment Clause purposes should be set forth by this Court when the government displays or recognizes historical expressions of religion?

BY KELSEY KIRKPATRICK & CARMEN JONES, MEDILL NEWS SERVICE

When Judge Executive Jimmie Greene signed an order accepting a privately-donated frame displaying the Ten Commandments and put it in the hallway of the courthouse in McCreary County, KY, he didn't think he was violating the U.S. Constitution.

Neither did Darrell Beshears, the Judge Executive in Pulaski County, KY, or the school board in Harlan County, Kentucky, that also posted framed copies of the Ten Commandments in their lobbies.

But on Nov. 18, 1999, seven people in McCreary, Harlan and Pulaski counties along with the ACLU of Kentucky filed three separate lawsuits in U.S. District Court, saying the display was in violation of the Establishment Clause of the 1st Amendment.

They asked for a preliminary injunction to prohibit the displays. Soon after the complaint was filed, the courthouses and school district modified the displays to include other historical and legal documents, such as the Declaration of Independence, the Magna Carta and the Bill of Rights, among others. Nonetheless, the court issued a preliminary injunction, ordering that the displays be removed.

The courthouses modified the displays once again, this time including a framed explanation entitled, "Foundations of American Law and Government Display." The School Board displays added a School Board Resolution explaining the documents' significance.

When the new displays were erected, the plaintiffs in the case moved to hold the defendants in contempt for violating the injunction. The defendants argued that the new displays were not similar to the ones that were enjoined, and said, "the purpose for the display is to educate citizens of the country regarding some of the documents that played a significant role in the foundation of our system of law and government."

Mathew Staver, who represents the Kentucky counties and school district, said the displays aren't about religion, but rather the history of American law.

"One of the eleven frames deals with the discussion of foundations of law. It describes a number of documents that influenced American law," he said. "There's no question the Ten Commandments influenced American law."

On March 30, 2001, the district court denied the plaintiff's motion to hold the counties in contempt, but urged the parties to settle the matter by April 30, or the court would rule on the injunction.

When the two sides couldn't reach a settlement, District Judge Jennifer Coffman granted the motion for a preliminary injunction on June 22, 2001. In her ruling, she said the display "showed strong likelihood of succeeding to prove that the displays violated the Establishment Clause of the First Amendment."

The Establishment Clause of the 1st Amendment states, "Congress shall make no law respecting an establishment of religion."

In its decision, the district court referred to the Lemon test the U.S. Supreme Court used in 1971 in Lemon v. Kurtzman. Since then, the test has been used in nearly every applicable case to determine if a particular government action violates the Establishment Clause.

As originally formulated, the Lemon test asked courts to consider three separate factors, or prongs, to determine the government's possible violation. The court must determine: (1) whether the government activity in question has a secular purpose; (2) whether the activity's primary effect advances or inhibits religion; and (3) whether the government activity fosters an excessive entanglement with religion.

A divided 6th Circuit Court of Appeals panel affirmed. Writing for the majority, Judge Eric Clay said that although a display of the Ten Commandments is not always prohibited, the display of the Ten Commandments that is represented to be historical in nature must present the display objectively and integrate them with a secular message or it will be in violation of the first prong of the Lemon test.

Judge Clay pointed to the School Board Resolution in which the Board articulated its "belief" and "opinion" that the documents, including the Ten Commandments, have educational and moral value, as well as historical significance.

For that reason, he found the Resolution did not integrate the Ten Commandments with an objective discussion of a secular subject matter. Instead, he said, the Resolution asserts an opinion that "it would serve an educational purpose for our citizens to become familiar with the important role which the Bible and Ten Commandments have played in molding our American traditions and laws."

As for the nine documents displayed in the courthouses, Judge Clay also affirmed the injunction because the description entitled, "The Foundations of American Law and Government Display" did not suitably draw a connection between the Ten Commandments and the foundations of American law.

In a concurring opinion, Judge Julia Smith Gibbons said she agreed with the court's ruling, particularly with the "secular purpose" prong of the Lemon test. However, she also said she had no opinion whether the displays effect or endorse religion of any kind, in relation to the other prongs of the Lemon test.

In dissent, Senior Judge James L. Ryan said the Lemon test has proven difficult to apply in many Establishment Clause cases. He noted the Supreme Court has already cautioned against "mechanically applying" the test to every Establishment Clause case and six of the current Supreme Court members have criticized the test.

However, Judge Ryan recognized it is, in fact, the test, and must be applied in this case. He said the district court based its decision on the conclusion that the displays failed the purpose and effect prongs of the test, but he disagreed.

First, to test whether the government's display has a secular purpose, he said it just must be proven that it is not "motivated entirely" by a purpose to advance religion, which he thought these displays were not.

Staver, who represents the counties, agrees, and sought review from the U.S. Supreme Court, noting that the 6th Circuit opinion conflicts with opinions from the 3rd, 5th, 10th and 11th circuits, as well as with the Colorado Supreme Court. All of these courts found the "purpose" prong of the Lemon test does not mean the displays must be exclusively secular. He added that the Ten Commandments play an enormous role in American government – and can even be found on the wall in the Court's own chambers.

"Essentially, there's a difference between government establishment of religion, that the Constitution bans, and an acknowledgement of religion that the Constitution permits," Staver said.

On Oct. 12, 2004, the U.S. Supreme Court accepted review in the case. The same day it also granted certiorari in Van Order v. Perry, a Ten Commandments case out of Texas.

Staver said the significance of the case goes beyond the Ten Commandments display because four questions were submitted to the Supreme Court to rule on. Two of those dealt with the validity of the Lemon test.

"This case would potentially overrule the Lemon test," he said. "This case will effect every display of the Ten Commandments in the country…and it could establish a new test that we could see used in the future."

Marci Hamilton, a Visiting Scholar at the Princeton Theological Seminary and commentator on church/state issues, said she wasn't surprised the Supreme Court agreed to hear the case. She said the two Ten Commandment cases the Court accepted are difficult, but raise the very issue the Court needs to answer: Is it EVER constitutional for the government to display the Ten Commandments?

"The answer will be yes," Hamilton said. "But it will depend on what message the viewer receives from looking at it, which is informed by context, commentary, and government action."

During the Court's oral arguments on March 2, 2005, the justices examined if McCreary County effectively neutralized its initial religious purpose in displaying the Ten Commandments by later revising the display and placing it among 300 other documents that together constitute the basis of American law.

Matthew Staver began his argument for the Kentucky counties by stating "the Ten Commandments occurs quite frequently and has for more than a century in courthouses all over this nation. It is associated with courthouses for a clear historic reason, because the Ten Commandments has played an influential role in American law and government and our system of law in this country."

Justice David Souter questioned Staver's line of reasoning, posing, "Everybody knows that the present context is simply litigation dressing and that the object for what is going on is the object that was revealed in the first place."

"Even if they had a religious purpose under the second display," Staver responded, "that religious purpose has been buried and has been abandoned."

Staver later said government officials should "be able to adjust their missteps whenever they step on a constitutional land mine that is sometimes confusing and blurry to them." He went on to call the "constitutional" display in its present form "passive."

David Friedman, representing the ACLU of Kentucky, strongly disagreed, arguing that "the current courthouse display reveals both a purpose and an effect to endorse religion."

In response to Justice Anthony Kennedy's question as to why the Ten Commandments should be allowed to be displayed in some places and not others, Friedman said, "In gauging the purpose, one looks at both the litigation history, the social facts, the content and any changes."

Friedman labeled McCreary's subsequent changes after the initial display was challenged for violating the 1st Amendment as "simply wrapping the Ten Commandments in the flag and, with all due respect, that constitutes [religious] endorsement."

Justice John Paul Stevens, addressing Acting Solicitor General Paul Clement, who split the oral argument time with the Kentucky counties, said, "There are some ways you can display religious things and some ways perhaps that you can't and try to develop that kind of objective jurisprudence as distinct from an intent jurisprudence."

Clement's response, a nod to the Bush administration and its conservative base, was that the "constitutional rules" should be different for the display in its final form versus its original form.

Justice Sandra Day O'Connor invoked the Lemon test, wondering if it would have to be altered to arrive at Clement's approach. Clement said he believed the Court could "put Lemon to one side as opposed to overtly amending it."

Summarizing the question before the Court, Justice Stephen Breyer said, "If it was wrong to begin with, is it wrong to end with?"

Justice Antonin Scalia staked out a distinct line of inquiry: "What if its purpose were to demonstrate…that we are a religious people whose institutions presuppose a Supreme Being. What if that were its purpose? Would that have made it bad?"

Staver concurred, noting that it should not be unconstitutional to acknowledge that "we are a religious people," since the Court has said so "more than five times." He pointed to the Court's allowance of prayer before legislative sessions and its suggestion that the national motto - - is constitutional.

Justice Scalia pursued the point with Friedman, who argued that there is a difference between governmental acknowledgement of religion and endorsement of it. The display in Kentucky, he told the Court, "asserts the primacy of the Ten Commandments," conveying that the commandments as the "revealed word of God is the moral foundation of the Declaration of Independence."

Scalia was not dissuaded. "All it stands for is the proposition that the moral order is ordained by God," he said. "And to say that that's the basis of the Declaration of Independence and of our institutions is entirely realistic."

He clarified that no particular commandment is being represented in the display. "What the commandments stand for is the direction of human affairs by God."