*1 capacity PERRY, VAN ORDEN his official CHAIRMAN, STATE OF TEXAS GOVERNOR BOARD, PRESERVATION et al. 2, 2005 Decided June Argued
No. 03-1500. March *3 for Erwin the cause Chemerinsky petitioner. argued With him and Paul on the briefs were Mark Rosenbaum Hoffman. the cause Abbott, Texas, General of
Greg Attorney argued R. for him on the brief were Barry With respondents. McBee, General, D. Bur- First Edward Assistant Attorney Willett, General, R. R. Ted bach and Don Attorneys Deputy Warr, Cruz, General, and Solicitor Joel Thollander Amy L.. Paul Michael General, Winget- Assistant and Solicitors Hernandez, Assistant General. Attorney
Acting Solicitor General Clement the cause for argued States as amicus curiae United of support respond Attorney were Assistant Gen ents. brief With him on the Deputy Attorney eral Keisler, Assistant General Katsas, Stur-gill, Millett, Loeb, Patricia A. Robert M. and Lowell V. * Jr. curiae urging amici *Briefs of reversal were American filed for Atheists Bruno; Robert J.
by by for the American Humanist Association et al. Eliz- Hileman; L. abeth for the American et al. Marc D. Congress by Jewish and Jeffrey Sinensky; Stem for Americans United for of Separation Gershengom, Ian Heath Church and State et Hohengar- William M. by al. ten, Khan, Ayesha Katskee, Richard Mincberg, B. Elliot M. and Judith E. Schaeffer; Babbin, by Jeffrey for R. the Anti-Defamation et al. League Bayer, Heath, Lawrence, S. Aaron Kenneth D. Frederick M. Daniel S. Alter, Freeman; M. Steven Baptist for by Joint al. Committee et Douglas Hollman; Laycock Hollyn and K. for Council Secular for Tabash; by Edward Humanism Religion the Freedom from Foundation Peterson; James A Friedman and James D. by and for the Ameri- Hindu by Henry Dinger, Simes, C. can et Jeffrey A Foundation al. Keith A Zullow, Mehta, Aseem V. and Jessica Jamieson. amici curiae urging affirmance were filed for of Briefs of the State Carter, Steve Indiana, Indiana et al. Thomas M. Attorney General of Fisher, Walker, Rebecca General, Deputy Attorney Attor- Troy neys General for their respective King Alabama, States as follows: of Terry Crist, Jr., Goddard of Mike Beebe of Arizona, J. Arkansas, Charles Florida, Lawrence G. of Kansas, Gregory Phill Idaho, Wasden Kline Foti, Jr., D. Stumbo C. Kentucky, Charles Jim Hood Louisiana, Mississippi, WayneStenehjem Jim Petro Gerald Dakota, Ohio, of North Pappert J. Pennsylvania, Henry McMaster of South Carolina, Lawrence Long E. Dakota, L. *4 Jerry Mark Utah, South Kilgore W Shurtleff and Patrick J. Virginia, Crank Wyoming; for the American for Center Sekulow, by Jay Roth, Manion, and Alan Stuart J. Law Francis J. Justice Weber; and Walter M. Family for for the American Association Center Stephen Crampton, Fahling, Brian J. Policy Law & M. Michael by and DePrimo; Pi- R. by for for Anthony Religious Liberty the Becket Fund carello, Jr.; for the Juris- Claremont Institute Center for Constitutional III; C. Meese by John Eastman and Edwin prudence for Forum Eagle Douglas Phyllis G. Smith and Education & Legal by Defense Fund Schlafiy; Perry; Mark by for the Center A for Policy Ethics and Public Benjamin Law, Inc., Gregory D. DuPré and by Foundation for Moral Jones; Kelly M. and Eagles by for the Fraternal Order of Shackelford Rehnquist announced the Chief Justice judgment in which Court and delivered an Justice opinion, Scalia, Kennedy, Justice and Thomas join. Justice
The here is the Establishment Clause whether question of the First Amendment allows the of a monument inscribed the Ten on the Texas Commandments State We hold that it does. Capitol grounds.
The acres the Texas contain surrounding State Capitol 17 monuments and 21 historical markers commemorating ideals, and events that Texan “people, identity.” compose (2001).1 Tex. H. Con. Res. 77th Sess. The Leg., Reg. monolith here and stands 6-feet 3-feet wide. challenged high It is located to the north of the between Capitol building, and the Its Capitol Court Supreme building. primary content is the text of the Ten Commandments. An eagle the American an inside of a and grasping eye pyramid, flag, two small tablets with what to be an ancient appears script are carved the text of above the Ten Commandments. Below the text are two Stars David and the superimposed Rho, Greek letters Chi and which Christ. The represent bottom of the monument bears “PRE- inscription Miller; George A. for the on Law and National Jewish Commission Public Lewin, Lewin, Zwiebel, Alyza Nathan by Affairs Rapps, D. Dennis David Diament; and Nathan J. Lepis- Peter D. for by the Pacific Justice Institute Whitehead; eopo; John W. by the Rutherford Institute for Janet Len L. Munsil. Napolitano by et al. curiae were amici
Briefs of by filed for the Atheist Law Center et al. Pamela L. Sumners Larry Darby; County for the Historic Chester Putnam, Jr.; by Preservation Network IK for Faith and Action Alfred Reese, Jr.; P. al. by Benjamin Bernard Family et for Focus on the al. et Lorence; IK Bull Jordan IK for the Thomas More Law Center III; Wallbuilders, Inc., by Barry Hodge. Edward L. White C. and for Alamo, The are: Brigade, monuments Heroes of the Hood’s Confederate Soldiers, Fireman, Terry’s Rangers, Cowboy, Volunteer Texas Texas Guard, Spanish-American War, Commandments, National Trib Texas Ten Children, Woman, ute Texas School Boy Texas Pioneer Scouts’ Veterans, Veterans, Statue of Liberty Replica, Pearl Harbor Korean War I, Veterans, Soldiers of War Disabled World and Texas Peace Officers. *5 THE SENTED TO PEOPLE AND YOUTH OF BY TEXAS THE FRATERNAL ORDER OF EAGLES OF TEXAS App. 1961.” to Pet. for 21. Cert. legislative surrounding
The acceptance record the State’s Eagles from monument national social, civic, —a patriotic organization legislative journal limited to —is accepted, entries. After the monument was the State se- lected a site for the monument based on the recommendation organization responsible maintaining state Capitol grounds. Eagles paid erecting the cost of presided monument, the dedication of which was over two legislators. state
Petitioner Thomas Van Orden is a native Texan and a resi- dent of lawyer, Austin. At one time he was a licensed hav- graduated ing from Southern Methodist Law School. Van Orden that, testified 1995, since he has encountered the Ten during frequent Commandments monument his visits to the Capitol grounds. typically purpose His visits are for the using library Supreme the law building, in the Court which just Capitol is located building. northwest of the Forty years years after the monument’s erection and six began after Van Orden to encounter the monument fre- quently, he sued numerous state officials in their official ca- § pacities § under seeking Rev. Stat. 42 U. S. C. both a placement declaration that the monument’s violates injunction requiring Establishment Clause and an re- its moval. After a trial, bench the District Court held that the monument did not contravene the Establishment Clause. It found purpose recogniz- that the had State a valid secular ing commending Eagles for their efforts reduce juvenile delinquency. The District Court also determined history, purpose, that a observer, reasonable mindful of the passive context, would not conclude that this monument conveyed message seeking that the State was to en- religion. Appeals dorse The Court of affirmed the District *6 purpose holdings respect to the and Court’s with monument’s (CA5 2003). granted certiorari, effect. F. 3d 173 We (2004), 543 S.U. and now affirm. applying point in cases, Januslike,
Our in two directions the Establishment Clause. face looks toward One strong by religion religious played role traditions throughout history. our As we observed in School Nation’s (1963): Schempp, of Abington Township Dist. v. 374 U. S. closely "It is true that has identified been history government.. fact that the with our . . The Founding devotedly was believed that there a Fathers rights and that the unalienable of man were rooted God clearly writings, in Him is from evidenced in their Mayflower Compact It can to the Constitution itself.... truly today, beginning, said, therefore, be that in the religious people in who, our national life a reflects ‘earnestly duty praying, words of in Madison, are as ... Supreme Lawgiver bound, of the Universe .. . that the guide every may worthy them into measure which be ” ....]’ [blessing Id., his 212-213.2 principle governmental face The other looks toward the endanger religious reli- intervention matters can itself gious freedom. challenges, pre- case,
This like all Establishment Clause difficulty respecting us with both faces. Our sents yet presuppose Supreme Being, institutions a these institu- upon press religious their citi- tions must not observances past acknowledgment of our zens. One face looks to the present heritage, Nation’s while the other looks to demanding separation and state. Recon- between church requires ciling our these that we neither abdicate two faces (1962) (“The Vitale, 421, 434 Engel history also of man v. 370 U. S. Clauson, Zorach 343 U. S. inseparable history of religion”); from the (1952) (“We presuppose institutions religious people are a whose Being”). Supreme to maintain a responsibility division between church and state nor evince a hostility religion by disabling from in government some ways our recognizing religious heritage:
“When the state encourages
instruction or co
religious
operates
authorities
by adjusting
schedule of
events to
public
sectarian needs, it follows
the best
our
For
traditions.
it then
the reli
respects
of our
nature
gious
people
accommodates the public
service to their
needs. To hold that
spiritual
it
may
would be to find in the Constitution a
requirement
the government show a callous indifference to religious
*7
. . .
find no
groups.
[W]e
constitutional
requirement
which makes it necessary for
to be hostile
government
to
and to throw its
efforts to
weight against
widen the effective
of
influence.” Zor
scope
religious
ach v. Clauson,
(1952).
S.
313-314
See also
v. Rector and
Rosenberger
Visitors
Univ. Va.,
of
of
(1995)
not, adhere to the principle that
the Establishment
any
Clause bars
governmental
all
g.,
Cutter
preference
See,
for religion
e.
irreligión.
over
Wilkinson,
(2005);
v.
685 These two faces are evident cases both representative upholding4 laws under the Establishment invalidating5 Clause. Over last 25 years, we have sometimes pointed
4
Simmons-Harris,
(2002)
Zelman v.
536 U. S.
(upholding
639
school
School,
voucher
program); Good News Club v.
Central
533
U. S.
Milford
(2001)
that
(holding
allowing religious school
to use school
groups
faсili
Felton,
Agostini
Clause);
ties does not
violate the Establishment
v.
(1997)
U. S. 203
a
(approving
program
provided public employees
to
schools),
teach
religious
private
remedial classes at
and other
overruling
Aguilar
Felton,
(1985)
v.
S.
public
473 U. 402
(barring
school teachers from
parochial
going to
to provide
schools
remedial
disadvantaged
education to
Ball,
(1985)
children),
Rapids
School Dist. Grand
v.
supra
créche);
Marsh Cham
(upholding
a Christmas
v.
including
bers,
Allen,
supra
(upholding legislative prayer); Mueller
v.
686 (1971),
to
providing
Kurtzman,
Lemon v.
Whatever the fate of the Lemon test in the jurisprudence, scheme of Establishment Clause we think it dealing in passive not useful with the sort of monument that Capitol grounds. Texas has erected on Instead, its our anal- ysis by is driven both the nature of the monument and history. our Nation’s (1984): explained Lynch Donnelly,
As
we
687 directly Supreme Being the founda- to the mation attributed young and successes of our Nation: tions assign Thurs- I and “Now, therefore, do recommend day, day to be devoted next, the 26th of November great people of that of these to the service States glorious Being beneficent author all and who is the may good will is, be; that that we was, that rendering unto Him our sincere and then all unite in protection of the for His kind care and humble thanks becoming country previous na- people this to their signal and the favor- for the manifold mercies tion; and interpositions providence and in the course able His great degree of tran- war; of the late for conclusion enjoyed; quillity, plenty which we have since union, and peaceable have in which we for the and rational manner government constitutions of been enabled establish safety particularly happiness, na- and for our and lately reli- instituted; for the civil and tional one now liberty gious the means blessed, with we are and which knowledge; diffusing acquiring have of useful we general, great favors and, in and various for all the upon pleased us.” J. which He has been confer Messages Papers Presidents, Richardson, p. 1789-1897, heritage has
Recognition Nation’s of the role of God our acknowledged, We have also been reflected in our decisions. closely example, “religion has been identified Abington history government,” School Dist. our “[t]he Township Schempp, his 212, and that v. religion,” history tory inseparable of man is from (1962).7 recognition Engel This Vitale, 421, v. 370 U. S. Newdow, 542 U. S. Elk Grove School Dist. See also Unified (2004) (Rehnquist, J., concurring (“Examples patriotic judgment) C. in our religion’s role acknowledgments of God invocations and official (O’Connor, J., id., concurring judg- history abound”); at 35-36 Nation’s *10 us to hold that the has led Establishment a Clause permits state to its sessions with a legislature open daily by prayer v. Chambers, a the State. Marsh 463 U. S., paid by chaplain at a we was 792.8 Such embedded practice, thought, “deeply tradition of Id., the this at history country.” 786. there, observed “it would As we be incongruous interpret Establishment as more First [the Clause] imposing stringent the Amendment limits on states than the draftsmen imposed Id., on the Federal Government.” at 790-791. simi- With lar we which laws, have from upheld reasoning, originated one of the Ten Commandments, the sale of prohibited merchandise on v. McGowan Sunday. S. Maryland, id., at (1961); 431-440 see 470-488 (separate opinion J.). Frankfurter,
In this case we are faced with a of the Ten Com- mandments on outside the State government Texas property Such the role the Capitol. acknowledgments played Ten in our Commandments Nation’s are common heritage We need look own throughout America. within our only 1935, Moses stood, Courtroom. Since has two tab- holding lets that reveal of the Ten written portions Commandments in Hebrew, other in the south frieze. among lawgivers Rep- resentations of the Ten Commandments adorn the metal the north and south gates lining sides of the Courtroom well as the doors into the also Courtroom. Moses leading sits on exterior east facade of the building holding Ten tablets. Commandments (“It
ment) is unsurprising refugees that a Nation founded to religious dedicated divinity freedom should find references its Lynch Donnelly, symbols, mottoes, oaths”); S., songs, 465 U. (“Our history is replete official with references the value and invocation guidance”). Divine 8Indeed, rejected we violation claim that an Establishment Clause presented prayers was because been Judeo- had once offered in the Marsh, Christian, tradition: In often prayers explicitly Christian were chaplain suit year but the removed all references to Christ after 793-794, was filed. and n. 14. throughout acknowledgments a visi- can be seen
Similar example, large Capital. a tour For tor’s of our Nation’s alongside holding Commandments, the Ten statue Moses Apostle Paul, has overlooked the rotunda a statue of the Building Library Congress’ 1897. And since Jefferson Reading Building’s contains a the Jefferson Great Room sculpture the Ten of woman beside Commandments (Micah 6:8). quote A her from the Old Testament above depicting medallion with two tablets the Ten Command- ments decorates thе Inside floor National Archives. *11 Spirit Department Justice, the a statue entitled “The representing two tablets the Ten Law” has Commandments Building Reagan lying at In its feet. front of the Ronald sculpture depiction Ten another that includes a of the sculpture, depicting, Commandments. too a 24-foot-tall So among things, cross, other the Ten and Commandments stands that houses both the outside the federal courthouse Appeals for the District of and the District Court Court prominently featured in the Columbia. Moses is also Cham- Representatives.9 ber of the United House of States opinions, recognized building, have the role Our like our Decalogue plays g., heritage. See, the e. McGo- America’s (separate opin- Maryland, id., at at 462 S., 442; wan v. U. examples prominent buildings reflecting Other of monuments and Jefferson, and Lin example, Washington, role of abound. For The explicit importance. coln Memorials all contain invocations of God’s Deo,” which is trans apex Washington Monument is inscribed “Laus God,” in the multiple lated to memorial stones mean “Praise be to engraved monument contain Biblical Memorial is citations. Jefferson In a central theme. quotes three from Jefferson that make God Lincoln Memorial are two of Lincoln’s most scribed on the wall of the speeches, Inaugural famous Ad Gettysburg Address and his Second acknowledg speeches’ Both those extensive inscriptions dress. include monument, accepted of God. The which ments first federal was Tripoli, United States in honor who noted the dates of sailors died Lord, 1804, year of the year fallen the 28 sailors “the of our independence of the United States.” J.).10 Legislative Frankfurter,
ion of The Executive and acknowledged have Branches also role historical g., Papers Ten See, Commandments. e. Public of the Presi Harry p. (1965); dents, Truman, 1950, S. S. Con. Res. 13, (1997); Cong., 105th 1st Cong., Sess. H. Res. 105th Con. (1997). displays recognitions 1st Sess. These of the Ten bespeak the Commandments rich American tradition of reli gious acknowledgments. religious they course, Of the Ten Commandments are — inception
were so
at
viewed
their
and so
The monu-
remain.
religious significance. According
ment, therefore, has
given
Judeo-Christian
belief,
Ten Commandments were
lawgiver
Moses God on Mt. Sinai. But Moses was a
religious
as well as a
leader. And the Ten Commandments
meaning,
foregoing
have an undeniable historical
as the
ex-
amples
Simply having religious
demonstrate.
content or
promoting message
with a
consistent
doctrine
Lynch
does not run afoul of the Establishment
Clause.
Donnelly,
680, 687;
Chambers,
U.
Marsh v.
Maryland, supra,
S., 792;
at McGowan v.
Walz
437-440;
City
York,
v. Tax Comm’n
New
397 U. S.
676-678
*12
religious
are, There
to the
course, limits
mes-
symbols.
sages
example,
For
we held
a
unconstitutional
Kentucky
requiring
posting
statute
Ten
of the
Com-
every public
mandments in
Graham,
v.
schoolroom. Stone
curiam).
(1980) (per
group significance, partaking religion has a dual of both and government. say We cannot that Texas’ of this monument violates the Establishment Clause the First Amendment. judgment Appeals
The Court is affirmed. is so
It ordered. Scalia, Justice concurring. join opinion
I of I because think Chief Justice accurately juris- it reflects our current Clause Establishment prudence jurispru- at least the Establishment Clause —or currently apply prefer dence we some of the time. I would by adopting to reach the same result an Establishment jurisprudence past Clause that is accord Nation’s our present practices, consistently applied— can be that the central nothing relevant feature of which is that there is favoring religion in a generally, unconstitutional State’s hon- oring through public prayer acknowledgment, God or, in nonproselytizing venerating manner, the Ten Command- McCreary County ments. See v. American Civil Liberties Ky., post, dissenting). Union at 885-894 (Scalia, Thomas, Justice concurring.
The Court holds that the Ten Commandments monument grounds Capitol found on the Texas State does violate trying suggest Establishment Clause. Rather than meaninglessness meaning, where there The Chief Jus- rightly recognizes “religious monument has tice significance.” properly recognizes Ante, at 690. He history permissibility role of in this Nation’s and the government displays acknowledging history. Ante, join reasons, 686-688. For those I The Chief Justice’s opinion in full. easy willing
This would case be if were to aban the Court addressing guideposts adopted don the it inconsistent has *14 and return the original Establishment Clause challenges,* suggested I have Clause. previously meaning against history incorporation” the Clause’s text and “resis[t] Newdow, Dist. v. Elk School Grove Unified States. (2004) 1, concurring judgment); 45-46 542 U. S. (opinion Simmons-Harris, 677-680, 639, U. S. also Zelman v. see (2002) If the Establishment n. 3 (concurring opinion). then it no States, has application Clause does restrain at issue. here, where state action is only if Exercise or the Free Even if the is Clause incorporated, see to establish limits the of States religions, Clause power (2005) (Thomas, Wilkinson, Cutter 709, 728, v. 544 U. S. n. returned far if we task would be J., our concurring), simpler it than of the word “establishment” original meaning The this now uses. under the various Court is approaches in [to] Framers understood an establishment “necessarily Newdow, at 52 supra, volve actual coercion.” legal Weisman, Lee v. J., judgment); concurring (Thomas, (“The (1992) J., coercion 577, U. S. dissenting) (Scalia, of religion that was a hallmark of historical establishments financial orthodoxy support was coercion words, law “In and threat other penalty”). force manda involved, at the example, establishment founding taxes supporting or mandatory payment observance tory Cutter, J., at concurring). supra, ministers.” (Thomas, with cre to do that have nothing And practices “government sim state establishments” coercive ating maintaining ... interest of being do not liberty “implicate possible ply Union, g., v. American Civil Liberties *See, County Allegheny e. (1989) 573, en- Pittsburgh Chapter, 492 U. S. (employing Greater 592-594 (set- (1971) Kurtzman, 602, test); Lemon v. 612-613 dorsement 403 U. S. Chambers, test); 790-792 Marsh v. 463 U. S. three-pronged ting forth also history”); see “unique legislative prayer due to its (upholding (1984) (“[W]e repeatedly have Donnelly, Lynch 465 U. S. 679-681 or criterion any single test our to be confined emphasized unwillingness area”). in this sensitive
free coercive from state Newdow, establishments.” supra, at 53 (Thomas, concurring judgment). is that,
There no based on the question original meaning Clause, Establishment the Ten Commandments dis- issue here constitutional. In no sense play does Texas Van Orden to do compel petitioner anything. only in- to him is he takes jury offense seeing monument *15 as he it on his to the passes Texas Court way Supreme Li- He brary. need read it or even to at it, look let stop alone to for it or express support Commandments adopt for as life. The mere his guides the monument presence his involves no and thus along path coercion does not violate the Establishment Clause. to the would
Returning do more original meaning than our task. It also would avoid the simplify pitfalls present in the Court’s current to such This approach challenges. Court’s the trivial precedent elevates to the “fed- proverbial case,” eral and benign making subject signs postings so, Yet even as it does challenge. Court’s at- precedent to avoid all tempts words of declaring symbols religious unconstitutional, tradition longstanding by counterfactually them of little Even when declaring religious significance. the Court’s cases that such have recognize symbols religious an meaning, they adopt fails unhappy compromise fully account either the or the nonadherent’s adherent’s be- liefs, and no provides to choose between principled way worse, them. Even the incoherence of the Court’s decisions in this area renders the Establishment Clause impenetra- ble and told, of consistent All this incapable application. courts, Court’s leaves and be- jurisprudence governments, lievers and nonbelievers alike observation that confused —an Newdow, is new. 1 45, See n. hardly supra, (Thomas, cases). concurring judgment) (collecting this First, Court’s even precedent slightest permits an to constitute establishment recognition public For individuals a county religion. example, frequenting
695 courthouse have as an Establishment successfully challenged Clause violation a at the courthouse sign alerting public that the was closed for Good building Friday containing Middleton, crucifix. Granzeier v. a 955 4-inch-high F. Supp. (ED 741, 743, 2, 1997), 746-747 n. aff’d on other Ky. (CA6 1999). a F. 3d grounds, Similarly, park has claimed that a cross erected to honor World War ranger I a violated veterans on rock in the Desert Preserve Mojave Norton, Buono v. Clause, Establishment and won. (CD 2002). 212 F. 1204-1205, 2d 1215-1217 Cal. Supp. If a cross in the middle of desert establishes religion, then no Still observance safe from challenge. religious other suits have seals city containing charged g., e. Robin- violate See, Establishment Clause. symbols Murray Edmond, son v. Aus- (CA10 1995); 3d 1226 F. tin, (CA5 Friedman v. Board 2d 1991); F. Cty. Cty., 1985) (CA10 Comm’rs Bernalillo 2d 781 F. (en banc). In mere instance, are litigants every or . . . free to symbols “[p]assersby ignore signs], [such when even to are to do backs, turn their free they just *16 other form they government speech.” disagree any County Allegheny Union, American Civil Liberties v. Pittsburgh Chapter, (1989) (KEN- Greater 573, 664 492 U. S. in in in and dissenting judgment part concurring NEDY, J., part). in a to out its
Second,
willingness
balance
seeming attempt
an estab-
to
almost
consider
acknowledgment
any
con-
have
lishment,
in other cases Members
this Court
the
issue has no
cluded that
term or
symbol
religious
invoca-
of its
or rote ceremonial
virtue
ubiquity
meaning
g.,
id.,
e.
in
J.,
See,
tion.
at 630-631
concurring
(O’Connor,
Donnelly,
Lynch
in
part
judgment);
concurring
But
(1984) (Brennan,
J., dissenting).
U. S.
716-717
For exam-
have
words such
religious significance.
“God”
it a
last
this
had before
challenge
Term
Court
ple, just
the
includes
which
of the
of Allegiance,
recitation
Pledge
phrase “one Nation under
God.”
declaration that our
country
necessarily “entail[s]
is “‘one Nation under God’”
Newdow,
an affirmation
God
that
exists.”
Even when this Court’s symbols meaning recognition or words, fails to re spect religious fully belief or disbelief. This Court looks meaning religious to an observer of indeterminate affili surrounding ation who knows all the and circumstances facts challenged display. g., Capitol Square See, e. Review and Advisory Pinette, Bd. v. S. 753, 780 (1995) (O’Connor, concurring part concurring judgment) (presum ing history that a reasonable observer “aware of community context and forum in which the display appears”). unusually looking In to the view of this inquires sign informed observer, this Court whether ancillary message “sends to . . . nonadherents they ‘that political are outsiders, full members of community, accompanying message and an to adherents that they political are insiders, favored members commu ” nity.’ Independent Santa Fe Doe, School Dist. v. 530 U. S. (quoting Lynch, supra, at (O’Con 309-310 concurring)). nor, J., analysis fully satisfying
This is not to either nonadherents *17 may or adherents. For the nonadherent, who be more well hypothetical sensitive than the observer,” “reasonable or may who capture not faets, know all the test this fails completely deeply the honest and felt from offense he takes analysis government adherent, this conduct. For the message sign takes no account of the removal sent display, may appear an act or which well to him to be hostile foray religious religious faith. into his The mean- Court’s gives ing weight either to the views nonadher- insufficient provides principled way no alike, ents and adherents or it In this effort to sum, choose between those views. Court’s futility. religious meaning fraught with assess “flexibility” Finally, very of this Court’s Establishment applica precedent incapable it leaves of consistent Clause Aguillard, tion. Edwards v. S.
(Scalia, dissenting) (criticizing Lemon test’s “flexibil J., (internal ity” any principled rationale” as “the absence of omitted)). inconsistency quotation marks The between today in this in Mc the Court reaches case and decisions Ky., Creary County v. American Civil Liberties Union of compounds post, p. only the confusion. unintelligibility precedent of this raises Court’s adjudi appearance fact, in that,
further concern either judicial challenges on cation of Establishment turns Clause g., predilections. Zion, 1401, 1425 927 F. 2d See, e. Harris v. (“Line (CA7 1991) (Easterbrook, drawing dissenting) J., per heavily influenced this area will be erratic judges”); post, concur sonal views of the at 700 (Breyer, (“I ring judgment) for the substitute see no test-related legal judgment”). of constitutional The outcome exercise personal pref grounds ought to rest firmer than cases on judges. erences of if the Court be avoided
Much, all, if not of this would adopt coercion Framers and return to the views of the would inquiry. Clause our Establishment as the touchstone for give an Every acknowledgment rise to would theo- not act as claim. would Courts Establishment Clause meaning mat- judging logical commissions, capable of precedent important, would be our ters. Most cor- application. the Court While and coherent consistent *18 rectly rejects challenge to the Ten Commandments mon- Capitol grounds, ument on the Texаs more fundamental rethinking jurisprudence of our Establishment Clause re- mains in order. concurring judgment. in the Breyer,
Justice Abington Township Schempp, In Dist. School v. of (1963), joined Goldberg, U. S. 203 Justice Justice Harlan, respect Religion wrote, in to the First Amendment’s Clauses, simple by precise that there is “no and clear measure which readily application invariably permissi can and demark the impermissible.” opin ble ion). (concurring Id., from the at 306 purposes One must refer instead to the basic of those They possible scope Clauses. seek to “assure fullest of religious liberty They Id., and tolerance for all.” 305. upon seek to religion pro avoid that divisiveness based sapping strength conflict, motes social government religion alike. Zelman Simmons-Harris, v. 639, 536 U. S. They dissenting). 717-729 to main seek (Breyer, “separation tain that long church state” that has been “peaceful religion critical to the dominion that exercises in [this] country,” “spirit religion” “spirit where the and the productively together” freedom” are “reign[ing] “united,” separate spheres Tocque but “on same soil.” A. de (1835)(H. Democracy ville, in America 282-283 Mansfield & transís, 2000). Winthrop They D. and eds. seek to further principles today by the basic set forth Justice O’Connor concurring opinion McCreary County her v. American Ky., post, Civil Liberties Union at 881. Goldberg
The clear, Court has made Justices and Harlan goals govern- noted, that the realization of these means that engage compel ment religious prac- must “neither in nor among tices,” that it must “effect no favoritism sects or be- nonreligion,” tween it and that must “work supra, Schempp, deterrence of no belief.” (concurring opinion); Weisman, 577, see also Lee 505 U. S. Everson Ed. U. S. v. Board (1992); Ewing, in- 15-16 excessive must avoid government with, of, terference religion. generally promotion Union, Liberties v. American Civil Allegheny County of Greater Pittsburgh Chapter, (1989); 492 U. S. 593-594 *19 Zelman, J., 723-725 But supra, dissenting). (Breyer, the Clause not the Establishment does government compel to from the all that in public way any partakes purge sphere Chambers, Marsh v. See, e. 463 U. g., S. 783 religious. absolutism not inconsistent with our Such only Kurtzman, traditions, e. Lemon v. 403 U. see, national S. g., (1971); Lynch Donnelly, v. U. S. 672-678 con- (1984), but would also of social tend the kind promote flict the Establishment Clause seeks to avoid.
Thus, out, and Harlan the Justices Goldberg pointed Court found no can ac- has mechanical formula that single draw the line in constitutional case. See curately every S., at 306 Where Schempp, the (concurring opinion). Establishment to measure issue, Clause is at tests designed alone it is some- insufficient, are both because “neutrality” “neutral,” difficult to a times detеrmine when rule is legal and because
“untutored to the can lead devotion of concept neutrality to invocation or which results partake approval of that and noninterference noninvolvement simply commands, the but which Constitution religious and and devotion to the secular pervasive brooding Ibid. active, even hostility passive, religious.” Neither can this tests other readily explain Court’s tolerance, for Establishment Clause’s example, prayers ref- Marsh, see certain that open legislative meetings, supra; words to, of, erences and invocations in the Deity public coins, de- officials; references to on God public public attention and or the crees, buildings; paid See, of certain objectives holidays, including Thanksgiving. g., supra, (setting Lemon, e. at 612-613 forth what has come test”); Lynch, supra, to be known as the “Lemon concurring) (setting J., forth the “endorsement (O’Connor, test”); Square Advisory Capitol and Pinette, Review Bd. v. (1995) dissenting) 753, 800, J., n. 5 U.S. (Stevens, (agreeing apply that an should “endorsement test” but criti standard); cizing “reasonable its observer” Fe Inde Santa pendent Dist. Doe, 290, 319 School 530 U. S. (Rehn- dissenting) (noting J.,C. Lemon’s “checkered career QUIST, Court”); County Allegheny, in the decisional law this supra, joined by at 655-656 (Kennedy, J.,C. Rehnquist, concurring judgment part and and JJ., White Scalia, test). dissenting part) (criticizing Lemon government If the relation between is one of separation, hostility suspicion, but not of mutual will one inevitably find cases, difficult borderline cases. inAnd such I see legal judg- no test-related substitute the exercise *20 Schempp, supra, (Goldberg, ment. J., See at 305 concur- ring); supra, dissenting) Zelman, cf. at J., 726-728 (Breyer, (need judgment quantitative for similar exercise of where matter). judgment personal considerations That a is not judgment. Rather, as in all cases, constitutional it re- must underlying purposes flect and remain faithful to the the Clauses, and it must take account of and conse- context quences light purposes. measured in of those the While prior provide guideposts might Court’s tests useful —and today, well lead to the same the see, result Court reaches g., supra, Lemon, Capitol Square, e. supra, 612-613; concurring part concurring 773-783 (O’Connor, in judgment) exact can formula a dictate resolution to such —no fact-intensive cases.
The case before us is a borderline case. It a concerns large granite bearing monument the text of the Ten Com- Capi- grounds mandments located on the of the Texas State undeniably the one hand, tol. On the Commandments’ text religious message, invoking, emphasizing, a has the indeed of the on the text Com- hand, the other focusing On Deity. this case. cannot resolve mandments alone conclusively the text con- Rather, that here to determine the message in- the text is And that we must examine how used. veys, of the us to consider context display. quiry requires of the Ten contexts, In a of the tablets certain display a message can convey simply Commandments (about standards also a secular moral message but proper conduct). contexts, of the And certain display social (about a historic tablets can also a historical convey message law) fact that standards and the relation between those —a tablets dozens of of those helps explain display Nation, courthouses including Supreme throughout to Brief for Court of the United States. See generally App. Amicus la-7a. United States as Curiae used of a Here tablets have been part but a secular communicates not a religious message, simply the dis- as well. The circumstances surrounding message set- and its on the grounds physical play’s placement capítol latter, nonreli- itself that the State intended ting suggest And the tablets’ message predominate. gious aspects on the Texas state the monument’s history grounds 40-year been effect. indicates that that has its the Fraternal monument, The donated group secular) (and civic orga- Order private primarily Eagles, Ten in the nization, while interested religious aspect Commandments, Commandments’ highlight sought of that role in civic as part organization’s shaping morality Tex. S. Con. efforts to combat delinquency.' juvenile consulta- Res. 57th Sess. Eagles’ Leg., Reg. *21 faiths of several of members tion with a committee composed to underscores group’s in order find a nonsectarian text 5-6, and Brief for Respondents ethics-based motives. monument, on the promi- The tablets, n. 9. as displayed a the display, donated that Eagles nently acknowledge distances further sufficient, thereby factor not which, though religious the State itself aspect from the of the Command- message. ments’ physical setting
The of the monument, suggests moreover, nothing Appendix little or of the sacred. See A, infra. large park The containing monument sits a 17 monuments designed markers, historical all to illustrate the “ideals” of those who settled in Texas and of those who have lived there since that time. Leg., Tex. H. Con. 77th Res. Reg. (2001); Appendix Sess. see setting B, does infra. readily any lend religious itself to meditation or other activity. provide But it does history a context of and moral (together ideals. It display’s inscription with the about its origin) communicates to sought visitors that the State to re- principles, illustrating flect moral a relation between ethics historically and law that the citizens, speaking, State’s háve say, endorsed. That suggests is to the context display’s State intended the message moral illustrative —an message reflecting the historical “ideals” of Texans—to predominate. provide
If these strong, a factors but not conclusive,indica- tion that the Commandments’ text on this monument con- veys predominantly message, secular a further factor is years determinative passed here. As far as I tell, can presence legally which the speaking, of this monument, went (until unchallenged single legal objection peti- raised tioner). any And I am suggesting not aware of evidence that this was due to a climate of intimidation. Hence, those years suggest strongly any more than can set of formulaic tests that system few individuals, whatever beliefs, their likely are amounting, have understood the monument as any significantly way, government detrimental to a effort particular primarily promote to favor sect, reli- gion nonreligion, any “engage “religious over prac- in” “compel”any “religious practic[e],” tice],” to or to “work de- any “religious Schempp, terrence” of belief.” (Goldberg, years concurring). suggest Those 40 *22 public visiting capítol grounds has considered the re- ligious aspect message part of the tablets’ as of what is a message broader moral and reflective of historical a cul- heritage. tural distinguishable
This case, moreover, is from instances displays where the Court has found im- Ten Commandments permissible. display grounds public a is not on the given impressionability young, gov- school, where, particular separating ernment must exercise in care ehurch g., and state. e. See, Weisman, S.,U. Stone 592; curiam). (1980) (per Graham, 449 U. S. This case also (and County, McCreary stormy) from differs where the short history displays of the courthouse Commandments’ demon- substantially religious objectives strates the of those who readily apparent objec- mounted them, and the effect of this upon post, (opin- tive those who view them. 869-873 Court). govern- history ion of the That there indicates a substantially promote religion, simply mental effort not primarily historically, impact an reflect, effort the secular religiously inspired today’s of a world, document. in And, comparable many religious in a Nation of so different nonreligious contemporary beliefs, fundamental a more state certainly upon effort to focus attention a text is likely prove way longstanding, pre- divisive in that this a existing monument has not. display For these I that thе reasons, believe Texas —serv-
ing primarily primar- nonreligious purpose, but mixed not ily creating “advanc[ing]” “inhibiting] religion,” government entanglement religion”— an “excessive satisfy might more this Court’s formal Establishment Clause (internal quotation Lemon, tests. 403 U. S., at 612-613 omitted); Capitol Square, marks at 773- see also 515 concurring concurring judg- part (O’Connor, ment). reaching I But, said, the conclusion have display permissible side of the constitu- the Texas falls on rely any partic- upon application I line, tional less literal ular test than consideration of the basic upon purposes Amendment’s First Clauses Religion themselves. This has stood uncontested for apparently two nearly gen- *23 erations. That us experience understand that helps as a matter this practical degree unlikely prove divisive. And this matter of is, I critical believe, degree a borderline case such this as one.
At the time, same to reach here, conclusion contrary based on the primarily nature of the tablets’ religious text would, fear, I lead the law to exhibit toward reli- hostility that no has in our gion Establishment tradi- place Clause tions. Such a well con- holding might encourage disputes the removal of cerning of the Ten longstanding depictions Commandments from across the Nation. public buildings it And could create the kind of thereby very religiously based divisiveness the Establishment Clause seeks Zelman, S., to avoid. J., at 717-729 (Breyer, dissenting).
Justices and Harlan concluded in Goldberg Schempp First Amendment does not
“[t]he prohibit practices which realistic measure by any create none of the dan- which it is gers and which do not so designed prevent directly involve the state in substantially exercises or in the as to mean- favoring have (concur- ingful practical impact.” ring opinion).
That kind of is what we have here. I practice recognize Still, where Establishment danger slippery slope. is at issue, Clause we must threat between real “distinguish Here, and mere shadow.” Ibid. we have the shadow. only In of these I cannot to- considerations, with light agree I Nor can with Justice day’s plurality’s analysis. agree do dissent at 885. I Scalia’s McCreary County, post, with Justice statement of agree principles O’Connor’s 881-883, I McCreary County, post, disagree though application her evaluation of the evidence it bears on the principles of those to this case. judgment
I concur in of the Court. [Appendixes opinion A B follow Breyer, page.] this *29 Ginsburg Justice Stevens, with whom Justice joins, dissenting. grounds
The sole function of the monument on the Capitol display Texas’ text State is full of one version of the Ten The Commandments. monument is not a work of any history art and does not refer to event in the of the significant only because, State. It is because, it commu- following message: nicates the thy
“I AM the LORD God. gods
Thou shalt have no other before me. thyself any graven images. Thou shalt not make to thy Thou shalt not take Name of the Lord inGod vain. day, holy. keep Remember the Sabbath it thy thy thy days may long Honor mother, father and be upon thy giveth which the land Lord God thee.
Thou shalt not kill. adultery.
Thou shalt not commit
Thou shalt not steal. thy against neighbor.
Thou shalt not bear false witness thy neighbor’s Thou shalt not covet house. thy neighbor’s
Thou shalt not wife, covet nor his manservant, anything nor his maidservant, cattle, nor his nor that is thy neighbor’s.” Appendix, See infra.1 display purported face, Viewed on its Texas’ has no con- nection to God’srole in the formation of Texas or the found- ing provide of our Nation; nor does it ob- reasonable any guess honor server basis to that it was erected to any message organization. individual or transmitted display quite plain: endorses the Texas’ chosen This State divine code of the “Judeo-Christian” God. message, At the observer that the was the bottom learns
“[presented youth Order people to the Texas the Fraternal Eagles Appendix, of Texas” 1961. infra.
708
For those the of us who learned to recite James ver- King the sion of text before we understood the long meaning of of words, some its God’s Commandments seem like may wise counsel. The before this Court, however, question is it is counsel that of whether the Texas State may proclaim without Clause of Establishment the Constitu- violating If of Jefferson’s tion. “wall of any fragment metaphorical between church and is to State”2 be separation preserved— if remains there to the “wholesome any meaning ‘neutrality’ [Establishment of which this Court’s cases speak,” Clause] Dist. School v. 374 Abington U. Township Schempp, S. of (1963) 203, 222 to that negative answer is question —a mandatory.
I In least, my judgment, Establishment very has Clause created a strong presumption against e. on symbols public See, g., County religious property. v. American Civil Liberties Allegheny Union, Greater (1989) Pittsburgh Chapter, 573, (STEVENS, J., S. in and concurring in Capitol Square part part); dissenting Review Bd. v. Pinette, Advisory 753, 797 U. S. (Stevens, J., The adornment of our dissenting). public un spaces displays religious symbols messages doubtedly provides comfort, even indi inspiration, to many viduals who subscribe faiths. particular Unfortunately, also runs the risk of nonmembers of practice “offend[ing] the faith advertised as well consider as adherents who being advertisement Allegheny particular disrespectful.” at 651 County, (Stevens, part concurring dissenting part).3 States, Reynolds (1879); Everson v. 145, 164 United 98 U. S. see also Ed. Ewing, Board 1, 16 330 U. S. us, recently As Senator Danforth reminded “efforts to references haul public more square, courthouses, God into into schools and far are Onward, apt Danforth, to divide Mod than advance faith.” Americans Times, Soldiers, p. erate Christian Y.N. June A27. Government’s to avoid divisiveness and obligation exclu sion in the sphere compelled Establish ment and Free Exercise Clauses, which erect a wall together between separation church and state.4 This metaphorical wall protects principles long and often recited recognized this Court’s cases. The first and most fundamental of these *31 one that a principles, of this majority affirms, Court today that the Establishment Clause demands neutral ity government not exercise a for one may preference reli — e.g., McCreary County faith over gious See, another. v. Ky., post, American Civil Liberties Union at 874-876.5 of This essential command, however, is not a merely prohibition 4The accuracy and utility of this have metaphor ques been called into See, (1985) tion. g., 38, e. v. Jaffree, Wallace 472 U. S. 106 (Rehnquist, J., dissenting); see generally P. Hamburger, of Separation Church and (2002). State Whatever one may think of the merits of the de historical bate surrounding Jefferson and the “wall” metaphor, this Court at a mini mum has never questioned of concept of “separation church and state” in our First jurisprudence. Amendment The Chief Justice’s opinion Ante, that principle. affirms at 683 (demanding “separation a be state”). Indeed, tween church and famously even the Court opined are a religious people “[w]e whose institutions presuppose Supreme Clauson, Being,” 306, (1952), Zorach S. 313 acknowledged that cannot slightest “[t]here be the doubt that the First reflects Amendment the philosophy id., that Church and separated,” State should be at 312. The question we face is give how to meaning to that concept separation. of 5There is now widespread Everson, consensus on this principle. See (“Neither at 15 nor state the Federal can pass Government... laws which aid one religion, religions, aid all or one prefer religion over another”); Abington 203, School Dist. Township v. U. S. Schempp, 374 of (1963) (“In the relationship between man and religion, the State is firmly position neutrality"); Valente, committed to a Larson v. 456 U. S. (1982) (“The 228, 244 clearest command of the Establishment Clause is that one religious denomination officially cannot be over preferred an other”); see Kiryas also Board Ed. Village Joel School Dist. v. Grumet, (“I 512 U. S. dissenting) always have (Scalia, . prohibits believed .. that the favoring Establishment Clause of one others”); States, over but Church Holy Trinity see v. United 457, 470-471 143 U. S. against govеrnment’s differentiation among religious We sects. have reaffirmed that repeatedly neither a State nor the Federal Government “can laws constitutionally pass all impose requirements which aid as religions against non-believers, and neither can aid those based on a religions belief the existence of God those against religions founded on different beliefs.” Torcaso v. Watkins, 367 U. S. (1961) (footnote omitted).6 This is based principle on the notion that straightforward governmental promotion is not orthodoxy saved several or aggregation thodoxies under the State’s banner. See Abington, atS.,U. 222.
Acknowledgments this broad of the neu- understanding trality are principle in our legion cases.7 Strong arguments to the have been raised contrary from time time, perhaps Rehnquist’s then-JuSTiCE strongest scholarly dis-
6In support proposition, this the Iredell, Torcaso Court quoted James who in the course of the debating adoption of the Federal Constitution in “ Carolina, North stated: objected ‘[I]t is that the people of may, America perhaps, representatives choose all, have no who religion and that pa gans may and Mahometans be into offices. admitted But possible how is it men, to exclude any set of without taking away that principle of religious ” freedom we which ourselves so warmly S., contend for?’ U. 367 Elliot, n. 10 4 J. (quoting Debates Several State Conventions on the (2d Adoption 1891)). of the Federal Constitution ed. Everson, (the S., 330 U. at 18 “requires Establishment Clause state to be . . . neutral in its with groups relations of religious believers non-believers”); S., Abington, 374 U. at 216 proposition (rejecting that the only Establishment Clause “forbids governmental preference of another”); Wallace, one religion (the S., over 472 U. at 52-55 interest “forestalling beyond intolerance extends intolerance among Christian sects —or even intolerance among ‘religions’ encompass intolerance —to uncertain”); Zorach, disbeliever and the cf. (Jackson, at 325 (“The J., dissenting) day that country this ceases to be irreligión free for it will cease to be free for religion except for the win politi sect can — power”). cal (1985).8 sent in Wallace 38, 91-114 v. U. S. Pow Jaffree, argument squarely erful as rejected his was, we it and thereby principle reaffirmed the the Establishment requires respect Clause the same for the it atheist as does for the of a adherent Christian faith. As wrote, we “the unambiguously Court has concluded that individual free protected by dom of conscience the First Amendment em right any religious braces the to select faith or none at all.” Id., at 52-53. restating
In principle, impor this I do not discount the avoiding overly tance of interpretation an strict of the meta phor so often used to define the reach the Establishment plurality Clause. The “religion correct to note that religious played “strong through traditions” have role ... history.” out our Ante, Nation’s at 683. has This Court recognized history often “an unbroken of official acknow ledgment ... of the role of in American life.” Lynch (1984); Donnelly, v. 668, 674 U. accord, S. Edwards Aguillard, (Powell, 578, 606-608 S. concur ring). history, unsurprising religious this Given it is that a symbol may important at times become an of a feature famil landscape important iar aor reminder of an event history community. separates The wall that the church prohibit government from the does State ac from knowledging religious practices beliefs the Ameri people, require governments can nor does it to hide works of art public just or historic memorabilia from view because they also significance. have preservation
This case, however, is not about historic recognition religion. the mere The issue is obfuscated by simplistic commentary rather than clarified various on the *33 8 Justtce Scalia’s dissent in Ten the other Commandments case we County decide today, McCreary American Civil Liberties Union of see Ky., post, 885-894, objections. objections at raises similar I address these directly III. in Part religion played in
ways has a role American life, in which opinion), (plurality the ante, recitation 683-688 see “acknowledgments” many governmental of the the extant played in our Nation's heri- the Ten Commandments role Surely, compila- the mere tage,9 ante, 687-689, and n. 9. religious symbols, none which includes the full text tion of in and all of which are exhibited dif- Commandments question only marginal settings, to the has relevance ferent presented in this case. displayed Capitol grounds cannot
The monolith on Texas passive acknowledgment religion, nor as a be discounted upon objection ex- refusal it be can the State’s to remove preserve plained simple This to a historic relic. as a desire neutrality respect to resolute Nation’s commitment plurality’s flatly with the whole- is inconsistent state endorsement of the hearted validation of an official only message one, God. one, that there is r—H I—I the Ten monument was donated When Commandments purpose 1961, in it was of Texas not for State history, signi- commemorating noteworthy in Texas event the Ten this Court has to the view that Command Though subscribed thought, it has not development legal ments influenced the of Western officially endorsed the far claim that the Ten Commаndments specific more of our Nation’s foundational played significant development role (and relevance to subsidiary special documents that it has implication Texas). lat this it an to characterize Although perhaps overstatement “idiotic,” of the Tr. of Oral as one Member proposition Arg. see ter plurality done, is a matter intense very question at the least has and Law Scholars scholarly Compare Legal debate. Brief for Historians County v. American Liberties McCreary Curiae Civil as Amicus 03-1693, Union for American Center Ky., O. T. No. with Brief accuracy Law and Justice as Amicus Curiae. Whatever the historical respondents’ rejected District Court proposition, categorically was displaying Decalogue suggestion purpose that the State’s actual to Pet. App. institutions. on kw and Texas signify its influence secular for Cert. 32.
713 fying the Commandments’ influence on development the of secular law, or denoting even the beliefs of Texans at that time. To contrary, the only donation was one of over a largely hundred identical monoliths, and of over paper replicas, thousand distributed to gov- state local ernments throughout the Nation over the course of several decades. This project ambitious was the work of the Fra- ternal Eagles, Order of a well-respected organi- benevolent zation good whose works have praise earned the of several Presidents.10 story As goes, program was by initiated the late
Judge Ruegemer, E. J. juvenile a Minnesota judge court then-Chairman Eagles of the National on Commission Youth Inspired by Guidance. juvenile offender who had never heard of the Ten Commandments, judge approached Eagles Minnesota with the idea of distributing paper copies posted Commandments to be in courthouses nation- wide. The State’s Aerie project undertook pop- this and its ularity spread. When Cecil B. DeMille, who at that time filming was the movie The Ten Commandments, heard of the judge’s endeavor, he up teamed Eagles with the produce type granite displayed monolith now in front of the Capitol Texas and at squares, courthouse city pub- halls, and parks lic throughout the Nation. reportedly Granite was chosen over original DeMille’s suggestion plaques of bronze replicate to better original Ten Commandments.11 10See Brief for Fraternal Order Eagles as Amicus Curiae 2-3. The Order was formed 1898 by six Seattle owners, theater promptly joined by actors, playwrights, and stagehands, and rapidly expanded include a nationwide membership numbering Id., over а 1-2; million. also see Fraternal Order Eagles, Tenino Aerie No. v. Grand Aerie Fra 56k ternal Order Eagles, 224, 148 229, Wash. 2d (2002) (en P. 3d banc); Lahmann v. Grand Aerie Fraternal Order Eagles, Ore. 420, 422, App. P. 1130, 1131 (2002). 3d 11See Elkhart, Books v. (CA7 235 F. 3d 2000); 294-295 State Freedom Religion Foundation, Inc., (Colo. 1013, 1017 1995) P. 2d from (en banc); see also U. S. Supreme Court will hear Ten Commandments donors were motivated a desire “inspire
youth” juvenile delinquency by and curb providing children with a “‘code of conduct or standards govern which to ”12 *35 their Eagles’ It is the actions.' belief disseminating message conveyed by the Ten help Commandments will persuade young to men and women to observe civilized behavior, standards of and productive will lead to more lives. Significantly, although Eagles’ organization is nonsectar- eligibility membership premised ian, for aon belief in the “Supreme Being.”13 existence of by a As described the Ea- gles themselves:
“ ‘[I]n searching youth guidance program [we] for a rec- ognized that there can be no better, no more defined program of guidance Youth Guidance, and adult well, than laws handed down God Himself to Moses years ago, more than 3000 which laws have stood un- changed through years. They are a fundamental part of our lives, the living, basis of all our laws for relationship foundation our with our Creator, with our families and with our fellow concepts men. All the we 2005, Case in Early http://www.foe.com/tencoinmandments/index.html (all Internet 24, 2005, materials as visited June and available Clerk of file). Court’s case 12Brief for Fraternal Order of Eagles as Amicus Curiae 4; Freedom Foundation, Religion 2d, 1017; accord, 898 P. Tex. S. Con. Res. from 16, (1961) (“These 57th Leg., Reg. Sess. plaques and monoliths have been presented by the Eagles promote to youth morality help stop and to alarming increase delinquency”). 13According to its articles of incorporation, the Eagles’ purpose is to: fraternally benefit, “‘[U]nite protection, mutual improvement, social enjoyment association, and all persons good moral character who believe in Supreme a Being to inculcate principles truth, of liberty, justice and equality ....’” Fraternal Order Eagles, 2d, 148 Wash. 3d, P. at 657. See also Aerie Membership Application-Fraternal Order of Eagles, http://www.foe.com/membership/applications/aerie.html (“I, being body mind, sound and believing in the Supreme existence of a ”). Being ... democracy,justice,
live honor—are rooted freedom, — in the Ten Commandments.
“ inspire 'The erection of these all who monoliths is to pause respect to view for the them, with renewed law greatest strength against God, which is our the forces ” way that threaten our of life.’ Anderson v. Salt Lake (Utah 1972), City Corp., Supp. rev’d, F. (CA10 1973). 2d 29 F. juvenile by providing delinquency The desire to combat guidance youths unquestionably is both sec- admirable achieving teachings goal through in- ular. But biblical jects religious purpose secular endeavor. into an otherwise By spreading converting the word of heathens God Christianity, expect enlighten converts, their missionaries *36 improve life, enhance their satisfaction with and their behav- Similarly, disseminating directing the “law of ior. God”— adultery— fidelity proscribing murder, and and theft, God wayward Eagles hope guidance help that this divine will youths improve lives. In their behavior and their conform my significant byproducts judgment, that are in- secular consequences religious indeed, tended instruction — religions type “secu- not the establishment of most —are promulgation purposes justify government of sa- lar” religious messages. cred may genuinely
Though combat of Texas wish to State juvenile delinquency, may rightly Ea honor the want to gles admirable it cannot these efforts, for their effectuate purposes explicitly religious through medium. See an (1988) (Blackmun, Kendrick, 589, 639-640 Bowen v. 487 U. S. (“It religious dissenting) J., now that should be undeniable by government dogma may employed to accom even not be may purposes”). plish The admonish secular State laudable parents, to honor their lie, cheat, steal, its citizens not may neighbors’ do so respect property; it their and to granite by printed commercials, or on words, in television public buildings. monuments in front of its Moreover, may provide State its schoolchildren and adult citizens with explain important educational materials that role that played our forebears’ faith in God in their decisions to select refuge religious persecution, America as a from to declare independence their from the Crown, British and to conceive (Powell, a new Nation. Edwards, at 606-608 concurring). message J., at issue in this case, however, fundamentally different from either a bland admonition to generally accepted observe general rules of behavior or a history lesson. message apart
The reason this stands is that the Beca- logue religious years is venerable text.14 As we held 25 ago, beyond dispute “[t]he it is Ten are Commandments undeniably a sacred text in the Jewish and Christian faiths.” curiam). (per Graham, Stone v. U. S. For many represent followers, Commandments the literal spoken word repeated asGod to Moses and to his followers descending after message conveyed from Mount Sinai. The by the analogized Ten Commandments thus cannot be to an (“In appendage to a common article of commerce God we Trust”) (“God part or an incidental of a familiar recital save Court”). the United Thankfully, States and this honorable plurality attempt religious sig- does not to minimize the (“Of nificance of the Ten Ante, Commandments. at 690 they course, the Ten Commandments are were so — remain”); inception viewed at their ante, so at 692 concurring); McCreary County see also (Thomas, *37 14 County Union, Allegheny v. American Civil Liberties In Greater Pittsburgh Chapter, 492 (1989), I U. S. 578 noted displays that certain may images convey equivocal “an message, perhaps respect Id., Judaism, for in general, or for (opinion law.” at 652 con however, in in curring part dissenting part). misleading, It is rather to quote my imply comment that case to I referring that was to the text of the Ten simpliciter. McCreary County, post, Commandments See at 904.
American Civil of Ky.,post, Liberties Union at 909 (Scalia, dissenting). J., Attempts unquestion to secularize what is ably a defy credibility sacred text people and disserve faith. profoundly message by sacred embodied in- text
scribed on emphasized Texas espe- monument is cially large letters identify its author: “I AM the LORD thy Appendix, God.” See present It commands infra. worship of Him deity. and no other It us directs be guided by teaching His in the current and future conduct of all of our affairs. It instructs us to follow a code of divine law, some of which integrated has informed and been into (“Thou legal our kill”), secular code shalt not but much of (“Thou which has not thyself any graven shalt not make to covet”). images.... Thou shalt not despite Eagles’
Moreover, best efforts to choose be- a nign text,15 nondenominational the Ten Commandments dis- play projects just religious, inherently but an sectarian, message. many There are distinctive versions of the Deca- logue, religions ascribed to different and even different particular denominations within a pious faith; to a may observer, learned these differences be of enormous reli- ante, See (Breyer, concurring in judgment). Despite the Eagles’ efforts, not all of the they monuments in fact donated conform to a “universally-accepted” g., e. text. Compare, Appendix, (including infra the command that “Thou shalt not to thyself any make graven images”), Russ, Adland (CA6 F. 3d 2002) (same), with Freedom Religion Foundation, 2d, 898 P. at 1016 (omitting that command from altogether). represents The distinction a critical divide between the Protestant and Catholic During Reformation, faiths. Protestants de stroyed images of Virgin Mary and of Jesus Christ that were vener ated in Catholic today churches. Even there is a notable be difference the imagery churches, tweеn in different may part be difference that attributable to differing understandings of the meaning of what Second Commandment the King Bible portion James translation and a of the First Finkelman, Commandment in the Catholic translation. The Ten on Elsewhere, Commandments the Courthouse Lawn and (hereinafter Finkelman). L. Ford. 1477, 1493-1494 Rev.
718 gious significance.16 See Lubet, The Ten Commandments in Alabama, 15 Constitutional Commentary 471, (Fall 474-476 1998). In choosing this version of display the Command- ments, Texas tells the observer that the State this supports side of the doctrinal debate. ob- reasonable server, after all, has no that way this knowing text was of a product compromise, there is a rationale of kind for the text’s any selection.17
The Establishment Clause, if else, nothing prohibits gov- ernment from details “specifying upon which men and women who believe in a benevolent, Creator and omnipotent Ruler of the world are known to differ.” Lee Weisman, 577, S. 641 J., Given dissenting). (Scalia, the chosen text inscribed on Ten Commandments monu- ment invariably places State at the center of a serious example, For in the Jewish version of the Sixth God Commandment commands: “You murder”; not whereas, shall the King James interpreta tion of the same command is: “Thou shalt not Plaut, kill.” Compare W. The Torah: A Modern Commentary (1981), Appendix, infra. The difference between the two versions is not merely semantic; rather, it is but one example of a deep theological dispute. See Finkelman 1481- 1500; Maier, Enumerating the Decalogue: Do We Number Com Ten mandments Correctly? J. Concordia 18-26 Varying inter pretations of this Commandment explain the vegetarians actions of who meat, refuse to eat pacifists who refuse to work makers, for munitions prison officials who refuse to administer lethal injections to death row inmates, pharmacists who refuse sell pills to morning-after women. 1494-1496; See Finkelman Brief for American Jewish Congress et al. as Amici Curiae 22-23. Although the command ambiguous, is power its motivate like-minded interpreters message of its cannot be denied. 17Justice willingness to dismiss the distinct textual versions Scalia’s to by adhered different faiths in the name of generic “monotheism” based on speculation mere regarding their significance, McCreary County, -post, is only ironic, Scalia, somewhat A. see A Matter of Interpreta (1997), tion 23-25 but also serves to reinforce the concern that interjecting government into the religious sphere will offend “adherents who consider particular Allegheny County, disrespectful,” advertisement (Stevens, part concurring dissenting part). sectarian unconstitu dispute, unquestionably *39 Valente, our casе law. See Larson tional under 456 U. S. (“The 228, 244 clearest command of the Establishment Clause is that one denomination cannot be religious officially another”). over preferred
Even if, however,
of the monument,
message
despite
text,
inscribed
could be
said
belief
fairly
represent
of all
system
Judeo-Christians,
it would still run afoul of the
Establishment Clause
a
code
prescribing
compelled
conduct from one God,
a
God,
Judeo-Christian
that
namely,
sects, such as Hindu-
rejected by prominent polytheistic
ism, as well as nontheistic
such as Buddhism.18
religions,
g.,
County,
Allegheny
See, e.
at 615
(opinion
J.) (“The
Blaekmun,
simultaneous endorsement of Judaism
is no less
infirm than the
Christianity
constitutionally
alone”).
endorsement of
And,
least,
at the
Christianity
very
the text of the Ten Commandments
commands
impermissibly
g.,
id.,
e.
over
preference
See,
irreligión.
(The
Establishment Clause
lib-
religious
“guarantee^]
infidel,
erty
atheist,
‘the
or
adherent
equality
18See Brief for Hindu American Foundation
Amici Curiae.
et al. as
Though
disagrees
Justice Scaua
sentiments are consistent
these
Clause,
deny
Establishment
that our cases
he does not
whole
heartedly
Instead,
adopt
expression
this
neutrality.
suggests
he
Courts,”
this
simply
Court
discard what he
“say-so
terms the
of earlier
based in part
“say-so”
on his own
aup
that nonmonotheists make
statis
tically insignificant portion
community.
of this
Nation’s
Mc-
Creary County, post,
systems
at 889. Besides
the belief
marginalizing
more than 7 million
by deeming
unworthy
special
Americans
them
Clause,
protections he offers monotheists
the Establishment
Jus
under
analysis may
tice Scaiia’s
for the
measure
be cause for concern even
self-proclaimed “popular” religions of Islam and
The number of
Judaism.
nearly equal
country,
Buddhists alone is
to the
number of Muslims
this
only
and while those of the
and Jewish faiths
for 2.2% of all
Islamic
account
believers,
Commerce,
Christianity accounts for 95.5%. See U. S. Dept.
2004-2005,
Census,
Bureau of
Abstract of the
Statistical
United States:
(124th
2004) (Table
67).
p. 55
No.
ed.
”
of a
faith such
non-Christian
(quoting
Islam Judaism'
52)). Any
Wallace, 472
my
S.,U.
judg-
of those bases, in
ment, would be sufficient
message
to conclude that
proclaimed by
should not
perma-
be
the State of Texas on a
government.
nent monument at the seat of its
I do not
including
doubt that some Texans,
those elected
Legislature, may
to the Texas
believe that the statues dis-
played
Capitol grounds, including
on the Texas
the Ten Com-
monument,
mandments
reflect the
compose
“ideals . . . that
identity.”
Leg.,
Texan
Tex.
Reg.
H.
Res. 38,
Con.
77th
Sess.
country,
But Texas,
our
like
entire
is now a much
community
more diversified
than it
when
was
it
became
part of the United States or even when the monument was
*40
Today
bеlieye
many
erected.
there are
Texans who do not
in
displayed
the God whose Commandments are
at their seat
government. Many
of
worship
god
of them
a different
or no
god
may
at all. Some
believe that the account of the cre-
ation in the Book of Genesis is less reliable than the views
of men like Darwin and Einstein. The monument is no more
expression
an
every
of the views of
true Texan than was the
“Live Free or Die” motto
Hampshire
that the State of New
placed
plates
on its license
in
expression
1969an accurate
of
every
Hampshire.
views of
Wooley
citizen of New
See
Maynard,
Recognizing diversity religious of and secular beliefs held beyond per- Texans and all it Americans, seems allowing government adventure that the seat of to serve stage propagation as a for unmistakably of an Judeo- message piety Christian tendency would have the to make [outsiders] nonmonotheists and nonbelievers “feel like in [strangers] community.” matters political faith, in Pinette, dissenting). “[Dis- at 799 (Stevens, J., S.,U. plays inevitably greater tendency of this kind have a to em- phasize deeply among sincere and felt differences individuals goal.” Allegheny County, than to achieve an ecumenical at S., U. 651 (Stevens, J., in concurring part dissenting in part).19
Even more than on religious symbol gov- ernment Pinette, 515 property, S., see at 797 U. (Stevens, J., dissenting); S., at Allegheny County, 650-651 (Ste- in concurring part in dissenting part), display- vens, this ing sectarian text at the state should invoke capítol powerful presumption As Justice invalidity. Souter’s opinion demonstrates, persuasively physical setting which the Texas monument is displayed from rebutting —far that presumption actually enhances the content — its at 742-743 message. post, (dissenting opinion). monument’s fixture permanent at the seat of Texas govern- ment is of immense The fact significance. that a monument
"is installed on
official
property
public
implies
recogni
tion and reinforcement of its
That
message.
implication
is especially
when the
stands in front of
strong
sign
seat of the government
itself. The ‘reasonable ob
server’ of
any
placed unattended
front of
symbol
any
capítol
the world will normally assume that the sover
is not
eign
only the owner
parcel
real
—which
estate but also
the lawgiver
terri
surrounding
tory
sponsored and facilitated its
Pi
message.”
—has
nette,
at 801-802 (Stevens,
J., dissenting).
Critical examination of the Decalogue’s prominent display
*41
at the seat of Texas
rather
government,
than generic citation
19The
particular
fact that
this
display has stood
unchallenged
over
years
40
suggest
dоes not
otherwise.
need
One
look no further than the
of
deluge
cases flooding
courts
displays
lower
to realize
discord these
the
See,
g.,
e. Mercier
engendered.
have
Eagles,
v. Fraternal Order
395
of
(CA7 2005);
Plattsmouth,
F. 3d 693
ACLU Nebraska
Foundation
v.
358
(CA8
Russ,
F.
2004);
(CA6
3d 1020
Adland v.
Sum
2002);
Ill plurality heavily Republic The on fact that relies our governed was founded, and has been since nascence, its (and still) spoke speak plainly religious leaders who then George rhetoric. cites, for instance, The Chief Justice Washington’s Thanksgiving support Proclamation proposition pro- that the Establishment Clause does not recognition scribe official role in our God’s Nation’s her- itage, plurality emphatically ante, at Further, 687.20 seemingly recognition endorses the timeless our presuppose Supreme Being,” “institutions ante, at 683. Many parties submissions made to this Court plurality’s opinion, amici, in accord with have relied ubiquity history. throughout on the of references to God our speeches founding and rhetoric characteristic of the question era, however, do not answer the before us. I have already explained why display Texas’ the full text of given Ten Commandments, the content of the actual is, course, This approach unique plurality’s rhetorical to the opinion today. Appeals to been religious speeches frequently such have See, support governmental used in messages. transmission of religious Wallace, (Rehnquist, J., g., e. 98-104 v. Weis dissenting); Lee (Scalia, J., man, (1992) 577, 633-686 505 U. S. Inde Fe dissenting); Santa (Rehnquist, Doe, pendent School v. U. S. Dist. C. cf. Lynch, Donnelly, dissenting); S. 675-676
723 apart situated, sets this case it is and the context which recogni- benign government examples from the countless of religion. difference. is another crucial tions of But there express public delivering addresses, often leaders, Our when simultaneously their blessings and in the service of God their public public deliver Thus, when officials constituents. exclusively speeches, recognize that their words are we govеrnment oratories because those from the a transmission inherently personal views them the within have embedded polity.21 The speaker member individual an religious display on state placement permanent of a textual amalgamates dis- property kind; it otherwise is different gov- into collective statement views a cordant individual to message ceases approval. never Moreover, ernment only objecting choices are whose transmit to viewers itself by averting accept the offense message ignore or to County, gaze. Allegheny 664 492 U. at their Cf. (Ken- dissenting in part concurring judgment in and J., nedy, concurring). sense, In this part); J., ante, at 695 (Thomas, inaugural Day proclamations Thanksgiving although undoubtedly speeches official, in most circumstances seem governmental endorse- they will not constitute the sort state separation of church religion which the ment of at is aimed.22 a listener analysis differs when saying that goes It without Independent e.g., Santa Fe See, listening prayer. a into coerced Dist., S., at 308-312.
School by approvingly cited “legislative prayers” respect 22 With ante, designa “the Justice, 687-688,1 my view that reiterate Chief chaplain official to serve as sole religious faith of a of one tion member preference years constitutes period legislature state Marsh Clause.” in violation the Establishment one faith over another Thus, (Stevens, dissenting). Chambers, S. one to at least respect Scalia agreement I are in Justice neutrality principle” in Marsh “ignor[ed] Court’s decision point —this County, post, McCreary Clause. Establishment at the heart of the (Scalia, J., dissenting).
The reliance on plurality’s early religious statements and proclamations made by Founders is also problematic be- cause those views were not at espoused the Constitutional Convention in 178723 nor enshrined the Constitution’s text. Thus, the presentation of these religious statements as a unified historical narrative is to bound a mislead- paint ing picture. It does so here. In according to deference statements of George and Washington John Adams, and Justice see ante, at 687 (plural- Chief Justice Scalia, McCreary County, post, ity opinion); at 886,887-888 (dissent- ing opinion), fail to account for the acts and publicly espoused views of other influential leaders of that time. ab- Notably sent from their historical snapshot fact that Thomas Jefferson refused to issue the proclamations Thanksgiving had Washington so readily embraced based on argu- ment that to do so would violate the Establishment Clause.24 and Justice The Chief Justice the sub- disrеgard Scalia stantial debates that took place regarding the constitutional- ity g., early proclamations and cite, see, e. acts they Letter from James Madison to Edward Livingston (July 10, 1822), in Founders’ Constitution 105-106 that Con- (arguing gress’ appointment of Chaplains be paid from the National was “not Treasury with my approbation” was and a “devia- tion” from the principle “immunity from Religion civil 23See, g., e. Hutson, J. Religion Founding of the American Re public 75 (noting the dearth of references to God the Philadelphia at Convention many contemporaneous observers the Convention complained that “the Framers had unaccountably turned their backs on the Almighty” because they “'found the Constitution any without acknowl ”). edgement of God’ 24 See Letter from (Jan. Thomas Jefferson to Rev. S. 1808), Miller in 5 (P. The Founders’ Constitution 98 1987) Kurland & R. Lemer eds. (hereinafter Founders’ Constitution); 11 Jefferson’s Writings 428-430 (1905); Lee, see also S., (Souter, (docu 623-625 J., concurring) menting history); Lynch, (Brennan, n. dissenting) (same). the fact that more over Madison jurisdiction”),25 paper than once him the views attributed to by repudiated many, that with stating government’s unequivocally respect “ involvement with on religion, ‘tendency usurpation one side, other, or the or to a coalition or alliance corrupting between ab- them, will be best an entire guarded against interference, stinence of the from Government way any & whatever, order, beyond necessity preserving public each sect on its protecting against trespasses legal rights others.’”26 These sentiments come should seemingly nonconforming *44 as no Not came numbers of colonists surprise. insignificant to this memories country religious persecution Madison, Memoranda, See also Detached in 5 James Founders’ Consti tution 103-104. letter “There Livingston argued: Madison’s to further has been principle another deviation from the strict in the Executive Proc festivals, far, least, they spoken lamations of fasts & so as have injunction, of all language or have sight equality lost sects in . Notwithstanding general the eve of the Constitution. . . progress made within the two last in favour of this branch of centuries it, liberty, Country, & the full in parts establishment of some of our there error, remains in others a strong bias towards old that without some of alliance sort or coalition neither can Religion [Government] between & coalition, duly supported. tendency be Such indeed to is the such a such its corrupting parties, danger influence on both the that the cannot carefully Every be too . guarded [against]. example . . new & successful matters, therefore of perfect separation betwеen and civil ecclesiastical importance. is of I every And have no that new will suc example, doubt ceed, done, every past one in & shewing [Government] has Id., will in greater purity, they together.” both exist the less are mixed at 105-106. (D. 26 Religion Early Republic in the 20-21 Dreisbach ed. Politics
1996) (hereinafter Dreisbach) (quoting Letter from James Madison to Jas (1833)). per Adams to See also Letter from James Madison Edward Liv (“We ingston 10,1822), (July teaching in 5 Founders’ Constitution 106 are Kings great [governments] world the truth that do better without & Nobles than with them. The will be the other lesson merit doubled Religion greater without than with the aid of purity, flourishes [government]”).
.monarchs on the other side of the Atlantic. See A. Stokes Pfeffer, & L. Church 1964). State the United States 3-23 (rev. experienced religious 1st. ed. Others intoler- regrettably ance at the hands of colonialPuritans, who failed practice contemporaries the tolerance that some of their preached. Engel Vitale, U. S. 427-429 ignore and Justice The Chief Justice Scalia separationist impulses principle accord with the —in “neutrality” brought these individuals to the debates —that surrounding adoption of the Establishment Clause.27 separationists
Ardent aside, there is another critical nu- plurality’s portrayal history. ance lost Simply put, in the many of the Founders who are often cited as authoritative expositors original meaning of the Constitution’s understood proposi- Establishment Clause stand for narrower plurality, tion willing than the for whatever reason, is to ac- cept. Namely, many of the Framers understood the word “religion” encompass only in the Establishment Clause to Christianity. various sects of compelling. Philadelphia evidence is Prior to the begun protect
Convention, the “religious States had free- Many provi- dom” their various constitutions. of those “equal sions, protection” however, restricted and “free ex- *45 27 contrary The evidence cited The Chief Justice and Justice Scalia only underscores the obvious fact that leaders who have drafted and voted for a text are eminently capable of violating own rules. their The first Congress -just present as the Congress pass of capable was— is— ing Thus, legislation. unconstitutional it no say is answer to that the Founders’ separationist impulses “plainly rejected” were simply because the first Congress McCreary acknowledged enacted laws that God. See County, post, (Scalia, J., dissenting). To adopt interpre such an tive approach misguidedly give would authoritative fact weight to the that the Congress proposed that the Fourteenth Amendment also enacted laws segregation, tolerated and the that 10 years proposing fact after the Amendment, First Act, Congress enacted the which Alien and Sedition indisputably present understanding violated our of the First Amendment. 34, Lee, (Soutek, See n. infra; S., at 626 concurring).
ercise” to invocations of the divine were Christians, and commonly refer to Christ.28 That historical understood to background likely understanding of Framers’ informed the Accordingly, the one influential thinker First Amendment. “ ‘[t]he meaning the wrote of the Amendment that of First unquestionably is, term in this “establishment” amendment preference given law to one sect of the and establishment ” every Jasper Adams, The Relation Christians over other.’ Christianity of in the to Civil Government United States (Feb. 1833) 16). (quoted in That definition Dreisbach understanding Story adopted Justice tracked the the text the Commentaries, his famous in which he wrote that object” “real of the was Clause countenance, to to advance Mahometan-
“not much less infidelity, by prostrating ism, Judaism, or Christian- ity; rivalry among sects, and but to exclude all Christian any prevent establishment, to national ecclesiastical hierarchy patron- give the exclusive which should to an sought age government. to cut It of the national thus (the pest persecution, vice and off the means of subverting rights ages,) power of former religion, had been of conscience in matters of which Apostles trampled days upon of the almost from present age.” Story, on Con- J. Commentaries (R. p. & §991, 701 Rotunda stitution of the United States 1987) (hereinafter Story); also Wal- J. see Nowak eds. lace, 62-55, and n. 36.29 S.,U. g., Strang, e. Amendment, See, Meaning “Religion” the First Duquesne L. 220-223 Rev. ‘“Christianity indispensable Justice Story wrote elsewhere I governments. & of all free true interests solid foundations sect, particular . . of a . between the establishment distinguish itself, without State, Christianity & the Religion Establishment indeed, any not, how I know any preference any particular form of it. pre expected can be obligation or accountableness
deep sense moral great Christian persuasion a firm community vail in the without *46 these lines, for a Along after nearly century founding, many the idea accepted was not America reli- a just Nation, but “a gious Christian nation.” Church Holy States, United v. Trinity (1892).30 457, U. S. original understanding type “religion” qualified constitutional under the protection Establish- ment Clause not did likely include those followers of Juda- ism and Islam who are among preferred “monotheistic” religions has embraced his McCreary Justice Scalia County opinion. at 893-894 post, (dissenting opinion).31 1838) Truths.’” Letter Jasper to (May 14, Adams (quoted in Dreis 19). bach S., (“‘[W]e 30 See143 U. at 471 are a people, Christian morality of the country deeply ingrafted is upon Christianity, and upon not doctrines or worship of . . . imposters’” (quoting People Ruggles, (N. 290, 1811))); Johns. 295 Y. see also Vidal v. Philadelphia, 127, 2 How. 198-199 These views should not be read as those of religious zeal ots. Chief Justice Marshall himself penned the historical genesis of the Court’s assertion that our “institutions presuppose Supreme Being,” see “ Zorach, S., 343 U. 313, writing that the population ‘American is en Christian, tirely us, & with Christianity & Religion are identified. It indeed, would be strange, if with such a our people, did institutions presuppose Christianity, & did it, not often refer & exhibit relations it,”’ 1833) Letter from John Marshall to Jasper Adams (May 18-19). (quoted Accord, in Dreisbach (“[A]t Story §988, the time of the adoption constitution, . general, universal, .. the if not the was, sentiment in America that Christianity ought to receive encourage ”). ment from the state ... 31Justice Scalia’s characterization of this nothing conclusion as more my than personal own “assurance” misleading say is Mc- least. Creary County, post, at 898. Reliance on our early Nation’s constitutional scholars common in this Court’s opinions. In particular, the author of the plurality once noted that “Joseph Story, a Member of this Court from 1811 to and during much of that time professor at the Harvard School, Law published by far most comprehensive on the treatise United States Constitution that had then appeared.” Wallace, at 104 (Rehnquist, J., dissenting). And opinions Court, numerous of this including two opinions notable authored it Scalia, have seen Justice give fit to authoritative weight Joseph Story’s interpret treatise when ing other constitutional provisions. See, Gaudin, g., e. United States v. *47 The inclusion of and Muslims Jews inside category favored would have shocked constitutionally surely religions Chief Justice Indeed, Marshall and Justice Story. Justice is unable to to any persuasive historical evi- point Scalia dence or entrenched traditions of his decision to support give constitutional status to all specially preferred monothe- istic this religions. is because Perhaps history Establishment Clause’s original meaning just strongly for supports as it preference does Christianity preference for monotheism. Generic references to "God” consti- hardly tute evidence that those who the word meant to be spoke inclusive of all believers; monotheistic nor do such references demonstrate those who heard the word under- spoken stood it to include all monotheistic faiths. See broadly at 726-727. supra, inclusion of Judaism Justice Scalia’s Islam is a tolerance, laudable act of but it is one that unmoored from Constitution’s history text, and moreover one that is in its inclu- arbitrary patently (e. sion of some, but other Buddhism), exclusion of g., widely 719, non-Christian See practiced religions. supra, n. 18 that followers of Buddhism (noting nearly equal Islam). number of Americans who follow Given the original of the men who our understanding championed “Christian nation” —men who had no cause view anti-Semitism or concern— atheists as of civic contempt worthy problems one must ask “has not had the whether Justice Scalia (or foolhardiness) courage [his apply prin- originalism] at 890. ciple McCreary consistently.” County, post, Indeed, to constrict the reach of the Establish- narrowly ment Clause to the views of Founders to more would lead than this with an result; it would also leave us unpalatable words, one constitutional other unincorporated provision —in that limits of “a national reli- establishment only federal Newdow, Elk Grove School Dist. v. gion.” Unified (1995) (Fifth Michigan, Amendment); Harmelin 515 U. S. 510-511 (1991) Amendment). (Eighth 501 U. S. 981-982 concurring 1, 45, 50, U. S. judg- (Thomas, ment); Rights cf. A. Amar, Bill of 36-39 Under only constitutionally view, this could a State adorn all of public spaces passages its with crucifixes or from the New authority prescribe it Testament, would also have full teachings Joseph of Martin Luther or Smith as the official religion. Only state pro- the Federal Government would be (and taking only hibited from sides then as between Chris- sects). tian *48 reading dependent
A of the First Amendment on either purported original meanings expressed of the above would eviscerate the heart of the Establishment It Clause. would replace separation” perverse Jefferson’s “wall of with a wall inside, exclusion —Christians non-Christians out. It permit would States to construct walls of their own choos- ing Baptists inside, out; inside, Mormons Jewish Orthodox — Jewish might Reform A out. Clause so faith- understood be expectations ful to the of some Founders, of our but it is plainly worthy society not of a whose enviable hallmark over the continuing expan- course of two centuries has been the religious pluralism Abington, sion of and tolerance. Cf. S., at 214; Zelman Simmons-Harris, v. 639, 720, 536 U. S. (2002) dissenting). (Breyer, willing years
Unless one is over renounce of Estab- jurisprudence lishment Clause and cross back over the incor- poration bridge, see Connecticut, Cantwell v. 310 U. S. (1940), appeals religiosity ring to the of the Framers hol- low.32 But way even if there were a to embrace coherent
32Justice Scalia’s answer —that incorporation empty does not “the in corporated provisions post, original meaning,” McCreary County, of their ignores the unique fact that Clause the Establishment has its own 898— history. evidence, incorporation There is no Con example, that contrary frontation Clause ran to the of the Clause’s under original core is, standing. however, There re persuasive some evidence to this effect garding the Establishment Dist. Clause. See Elk Grove School Unified Newdow, (Thomas, J., concurring judgment) S. (arguing that the Clause “federalism originally was understood be a with incorporation one hand while steadfastly abiding by Founders’ views purported on other, prob- lem of the selective use of remains. As history the widely views divergent espoused the leaders of our era founding reveal, plainly historical record of the preincorporation Establishment Clause is too indeterminate to serve as an North interpretive Star.33
It is our duty, therefore, Amend- First interpret ment’s command that shall make no “Congress law respect- an establishment ing not what religion” by merely asking those words meant to observers the time of the founding, but instead by from the deriving Clause’s text and history the broad that remain principles valid As we today. have said in the context of statutory interpretation, legislation “often [goes] beyond evil which principal [at statute was to cover aimed] reasonably evils, and it comparable ultimately provisions of our laws rather than the princi- provision” prevent intended to “Congress interfering from state es- tablishments”). It is unique this history, incorporation large, writ that renders incoherent the postincorporation reliance on the Establish- ment original *49 Clause’s understanding. least, id., Thomas, Justice has faced this problem head on. See
45 (opinion in concurring judgment). But even if the decision to incorpo- rate the Establishment misguided, Clause was point it is at this unwise to reverse given course the weight precedent of that would have to be cast aside to reach the Cardozo, intended result. See B. The Nature of the (1921) (“[T]he Judicial Process 149 labor of judges would be increased al- most to the if breaking point every past reopened decision could be in case”). every 33 Lee, S., (“[A]t See 505 U. J., at 626 best, (Souter, concurring) .. . the simply Framers did not share a understanding common Establish Clause,” worst, ment and at their overtly religious proclamations show they . “that . . could raise constitutional day ideals one and turn their next”); backs on Lynch, J., them the (Brennan, at 716 dissenting) (same); Feldman, cf. Origins Clause, Intellectual of the 77 Establishment (2002) N. 346, Y. U. Rev. that, L. Framers, 404-405 (noting for the “the term was a ‘establishment’ contested one” that the word used in “was time”). both narrow expansive ways in the debates of the 732
pal
legislators
governed.”
which we are
concerns of our
Services, Inc.,
v. Sundowner
523
75,
Oncale
U. S.
Offshore
(1998).
Equal
fashion,
In similar
we have construed the
prohibit
Protectiоn
Clause of
Fourteenth Amendment to
segregated schools,
Education,
see Brown v. Board
(1955),
though
even
those who drafted that
U. S.
Amend
evidently thought
separate
unequal.34
not
ment
was
prohibits
held that
We have
the same Amendment
discrimi
against
gender,
nation
account
individuals on
of their
Fron
(1973),despite
Richardson,
tier o v.
fact
U. S. 677
contemporaries
very
“doubt[ed]
of the Amendment
much
any
way
whether
action
State
directed
discrim
against
negroes
ination
as a class, or on account of their
purview
race, will ever be held to come within the
of this
provision,” Slaughter-House Cases,
“are not enactments, ephemeral to meet designed pass- are, occasions. to use ing They the words of Chief Justice Marshall, ‘designed approach immortality as human nearly institutions can The fu- it/ approach ture is their care and for events of provision good bad tendencies which no can be In made. prophecy of a application constitution, therefore, our contem- cannot plation be of what has only been but what may be. Under other rule any constitution would indeed be as easy as it application would be defiсient in effi- cacy Its power. would general have little principles value and be converted into by precedent impotent lifeless formulas.” Weems v. States, United S.U. 349, 373
The principle is guides my The analysis neutrality.35 basis for rooted in our principle Nation’s firmly 35Justice Thomas contends that Clause in Establishment cannot such neutrality clude principle because the only Clause reaches governmental Ante, coercion of individual belief or disbelief at 693-694 (concurring view, opinion). my In although religious actual coercion is undoubtedly forbidden Clause, the Establishment be the that cannot full provision’s extent reach. Jefferson’s “wall” and his metaphor refusal to issue supra, Thanksgiving proclamations, see would have been nonsensical if the Further, Clause reached only direct coercion. view, under the “coercion” the Establishment Clause would amount little more a replica doctrine, than g., e. West speech see, our compelled Virginia Barnette, Bd. Ed. (1943), religious S. with a flavor. A Clause interpreted so prohibit would not explicit state endorse sects, ments of particular orthodoxies of actions that lie at the heart of could, what the regulate. Clause was meant to government for example, take out television lauding advertisements Catholicism as the only pure religion. Thomas, Under the reasoning endorsed Justice
734 and our I Constitution’s text. history recognize that the that must remain requirement government neutral between would have religion irreligión seemed to some of foreign Framers; the too so would a requirement be neutrality tween Jews and Christians. But cf. Letter from George to the Hebrew Washington R. Congregation Newport, I. 18, 1790), 6 284, (Aug. 285 Papers George Washington (D. 1996). ed. we are Twohig not bound Fortunately, the Framers’ are bound expectations legal principles —we enshrined in they our Constitution. vision Story’s States should not discriminate between Christian sects has as its foundation the must remain principle government neutral between valid of belief. As systems religious plural ism has so has our of what expanded, constitutes acceptance valid belief The evil of systems. discriminating today atheists, against [,] “polytheists and believers unconcerned deities,” McCreary at 893 County, post, J., dissent (Scalia, is in view a ing), my direct descendent of the evil of discrimi Christian sects. nating among The Establishment Clause programs those would not be coercive because simply the viewer could (“The turn off ante, the television ignore ad. at 694 mere presence of the monument.. . involves no coercion” because passerby it”). “need not stop to read it or even to look at Further, the notion application that the principle a “coercion” would somehow to a lead more jurisprudence consistent is Enshrining dubious. coercion as Establishment Clause touchstone fails to eliminate the dif ficult judgment calls “the form regarding that coercion must take.” Mc Creary County, (Scalia, post, at J., dissenting). may Coercion seem some, obvious to while appearing Compare nonexistent to others. Dist., Independent S., Santa Fe Lee, School 530 U. at (Scalia, dissenting). may requirement It be a or an legal effect indirectly See, that is variety inferred from a g., Engel factors. e. Vitale, (1962) (“When 370 U. S. financial power, prestige and support belief, of government is placed particular religious behind a indirect pressure pre coercive upon minorities to conform to the officially vailing approved short, In plain”). people “reasonable could, would, and no in a argue doubt about whether existed coercion particular Feldman, Rev., situation.” N. Y. U. L. 415. displaying prohibits turn,
thus forbids it Texas from and, in plurality so casu the Ten Commandments monument ally affirms.
IV they Eagles may many monuments donate as displayed churches, choose to be in front of Protestant benev- organizations’ meeting places, or on front lawns of olent *52 King private expurgated James citizens. The text of the they is version have crafted of the Ten Commandments that syna- unlikely accepted by parishes, to be Catholic Jewish gogues, denominations, but the or even some Protestant compatible message they convey surely seek to more property property on the church than with that is located government metaphorical side of the wall. prop- judgment for the of the Court in this case stands displays governmental permits
osition that the Constitution mockery of the con- texts. sacred This makes government be- remain neutral stitutional ideal must par- may irreligión. endorse tween If a State deity’s gods me,” before ticular command to no other “have any that would it is difficult conceive of textual run afoul of the Establishment Clause. approval Texas’
The disconnect between this Court’s against prefer prohibition and the constitutional monument irreligión exercise ring religion to the cannot be reduced slippery slope. plotting adjacent Cf. on a two locations judgment). Rather, concurring ante, at 704 (Breyer, and ex a fortress between it is the difference the shelter al posure if wall were to “the winds would blow” 153, 195 Hill, 437 U. S. lowed to crumble. See TVAv. omitted). (internаl im wall, however quotation That marks preserving. perfect, remains worth respectfully dissent.
I page.] opinion J., follows this [Appendix Stevens, *55 Justice O’Connor, dissenting. post Souter,
For the reasons Justice essentially given this as the reasons page well as opinion), given (dissenting McCreary County American Civil v. my concurrence Ky., post, Liberties Union I dissent. 881, p. respectfully of Justice Souter, with whom Stevens and Jus- Justice Ginsburg tice join, dissenting. have the First Amendment’s Clauses
Although
Religion
not been read to mandate absolute
neutrality
governmental
Verner,
Sherbert v.
(1963),
toward
cf.
U. S.
religion,
as
the Establishment
neutrality
Clause requires
general
Ewing,
g.,
e.
Everson v. Board Ed.
rule,
330 U. S.
of
thus
of “em-
(1947), and
Madison’s condemnation
expresses
as an
Memorial
ploy
Civil
[ing] Religion
engine
policy,”
Assessments, 2
Remonstrance
Writings
Against Religious
(G.
1901). A
183,187
James Madison
Hunt ed.
governmental
an
text cannot be squared
obviously religious
in a
indicates
neutrality, except
setting
plausibly
pur-
the statement
is not
in view with
predominant
placed
on
either to adopt
religious
pose
part
government
or to
its
others.
message
urge
acceptance
one
our
the constitu
Until
cases addressed
today, only
v. Gra
Stone
Commandments,
the Ten
tionality
posting
curiam).
(per
ham,
A
Kentucky
S.
41-42
the walls of
on
statute
the Commandments
required posting
the State’s
school
described
classrooms, and
Court
public
out in Lemon
(relevant
laid
under the
test
purpose
tripartite
Kurtzman,
“The posting pre-eminent purpose on walls is mandments schoolroom plainly a sa- are undeniably The Ten Commandments nature. no faiths, and and Christian leg- text in the Jewish cred *56 can secular purpose of supposed islative recitation do con- not blind us to that fact. The Commandments fine themselves to secular arguably matters, such as one’s honoring parents, killing murder, adultery, false witness, and stealing, covetousness. Rather, the first part Commandments concerns the religious duties of believers: the Lord God worshipping alone, not the avoiding idolatry, Lord’s name in using vain, and the observing Sabbath S., (foot- U. at 41-42 Day.” omitted). note citations
What these observations are the underscore realities simple that the Ten Commandments constitute a state- religious ment, that their is message inherently religious, and that the purpose them out in a singling is the clearly same.1 Thus, a pedestrian the monument happening upon at issue here needs no training doctrine to realize religious the statement of the Commandments, God quoting himself, proclaims that the will of the divine is the source being to obligation rules, the obey the including secular facially ones. In this case, moreover, the text is presented give particular to the prominence Commandments’ first sectarian clarity 1 The religious the manifestation in Stom was unaffected the State’s effort to it: the obscure Kentucky statute that post mandated ing the Commandments in classrooms required also the every addition posting of a notation reading, “[t]he application secular of the Ten Com mandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” 449 (internal 39-40, omitted). n. 1 quotation marks In present case, religious purpose was evident part on the the donating organization. When the Fraternal Order of Eagles, group that gave the Texas, monument to the State of donated identical monuments to other.jurisdictions, it was seeking impart Adland message. Russ, 307 (CA6 2002) F. 3d (quoting Eagles’ statement in a letter written to Kentucky when a was monument donated to that Commonwealth: ‘“Most today’s younger generation either have seen the Ten Commandments or have taught not been them. In our opinion today youth learning dire need of ’”). simple laws of God ... Accordingly, it just was not the terms of the moral code, but proclamation that the enjoined terms the code were God, Eagles put forward in the they monuments donated. *57 thy “I proclamation reference, am the Lord God.” That is centered slightly larger on the and stone written in letters subsequent than the religious recitation. To ensure that the of pas nature the monument is clear to even the most casual (as serby, appears capital the word “Lord” in all letters does “am”), eye-catching segment the word so that the most quotation thy the is the declaration “I AM the LORD God.” App. to Pet. for Cert. 21. What follows, course, are the against gods, graven images, swearing, rules other vain breaking. Sabbath And the full text of the fifth Command puts respect ment long forward filial as a condition of in life thy giveth land the “which the Lord God thee.” ibid. [the] religious meaning unmistakably These “words make ... County Allegheny clear.” v. American Civil Liberties Pittsburgh Chapter, Union, Greater 573, 598 U. S. religious point To drive identify the home, and the mes- sage religious any viewer who text, failed to read the engraved quotation symbols: the by religious is framed two appears script tablets with what to be them, ancient on two superimposed Stars of David, and the Greek letters Chi and monogram Nothing Rho as the familiar of Christ. on the monument, religious fact, detracts from its nature,2 see (“Here, Lynch Donnelly, [v. ibid. unlike in U. S. (1984)], nothing in the context of the detracts from religious message”), plurality creche’s and the not does suggest otherwise. It would be therefore difficult to miss point government everyone telling that the Texas3 is
2That the monument also surrounds the text of the Commandments with various symbols (notably American the U. S. flag eagle) bald only the impermissibility underscores by juxtaposing Texas’s actions: patriotic symbols these religious signs, and other Commandments the monument sends the message being that American reli being means (and gious just being religious subscribing but also to the Command e., practicing i. ments, religion). monotheistic no question There is right the State its own broadcasting accepted When message. Eagles, Texas the monument from the legislature, years state aware that “for the several Eagles past
who sees the monument up to live to a moral code because requires God it, with both code conception being God rightly understood as the inheritances specifically of Jews and Christians. And it is unsurprising likewise District expressly Court rejected argument Texas’s that the purpose State’s placing the monument on Capitol grounds was related to the Commandments’ “part role as *58 the foundation of modern secular law in Texas and else- App. where.” to Pet. for Cert. 32.
The presentation monument’s of the Commandments with religious emphasized text and enhanced in stands contrast any to number perfectly of depictions constitutional of them, the frieze of our own Courtroom providing good a example, figure where the of Moses among stands history’s great law- givers. While Moses holds the tablets of the Command- showing ments some Hebrew text, looking no one at the lines figures of in marble likely relief is see a religious purpose behind assemblage the away or take religious a message Only from it. one depiction other represents leader, and the personages historical symbols are mixed with of moral and intellectual abstractions Equity like and Au- thority. County Allegheny, supra, at 652 (Stevens, of concurring part in and dissenting part). in Since Moses enjoys especial no prominence on the frieze, viewers can readily take him to be lawgiver there as a in company the other lawgivers; and the may just viewers naturally as see the tablets of the (showing Commandments the later ones, forbidding things killing like and theft, but without the di- preface) vine background from which the concept of law placed have across the country . parchment .. plaques and granite mono- liths of the Ten Commandments [in promote order] youth morality and help stop the alarming in increase delinquency,” resolved “that the Fra- ternal Order of the Eagles of the State of Texas be commended and con- gratulated for its еfforts and contributions juvenile delin- combating quency throughout our nation.” App. 97. State, The then, expressly approved of the Eagles’ proselytizing, which it on made its own. influence in the a secular history emerged, ultimately having course, of the Nation. Government may, constitutionally erect influence, call attention to this and may displays post less than monuments this of our no history aspect recounting is is a and that context other, so as there context any long Hence, the historical. accompa- Commandments modern nied an have influenced how they exposition would unobjectionable.4 law most be likely constitutionally reasons, displays of the Commandments that For similar other mentions, ante, 688-689, do not run afoul of Establishment plurality Reading Paul Main Room of Clause. The statues of Moses and St. in the Library proximity, statues that Congress are of 16 set close thought various forms of and activ “represent men illustrious Library .. . .” The Art and Architecture ity Congress: 1997). (J. and H. eds. Moses Building Thomas Jefferson 127 Cole Reeds (a14 that includes represent religion, group Paul while the other St. Plato) Columbus, Beethoven, represent Shakespeare, Michelangelo, commerce, science, art, history, categories philosophy, nonreligious Ibid. law, of the woman beside poetry. Similarly, sculpture figures “representing] Reading in the Room 1 of 8 such Decalogue Main *59 8 fea life and the same thought,” features civilized eight characteristic of (7 Moses, Paul, of and the nonreligious) that St. rest tures them Id., represent. statues 125. is one inlay Building Archives The on the floor the National Rather, discs, religious. four such the collective theme of which is not “symbolize types the discs the various of Government records A. from Judith were to into the Letter come National Archives.” (Oct. 1, Archivist, Section, Koucky, Catherine Millard Records Control 2003), http://www.christianheritagemins.org/articles/Ten_Commandments/ Letter_archivist.htm (as 2005, in visited and available Clerk June (The file). defense, history, jus- categories four are war and Court’s case disc tice, winged paired figure; is with a legislation. Each disc that, Commandments, notably, depiction a containing depiction of the legis- text, representing a paired figure omits Commandments’ is Ibid.) lation. the United featuring] Moses’s the Chamber “prominen[t] As for ante, opinion), Moses (plurality at 689 Representatives,” House of States Chamber, approxi- each encircling House actually portraits 1 of 23 size, portraits depict religious mately having no theme. same of what they played in the evolution history part for the “men noted in Decalogue suggested, And the could, integrated Stone be constitutionally study public into a course of schools. 449 S.,U. at 42.5 advantage recognition
Texas seeks to take of the that vis- symbol ual and written text can manifest a purpose secular company, (like argues in secular when it that its monument frieze) Moses in the ought is not alone be viewed as only among placed surrounding on the 22 acres the State Capitol. says Capitol grounds Texas, indeed, that the are like museum for a collection of setting exhibits, the kind of that several Members of the Court have said can render the permissible, exhibition of though artifacts even other circumstances their would seen be as meant to convey religious message County forbidden to the State. Allegheny, (opinion joined S.,U. at 595 of Blackmun, J., J.); Lynch Donnelly, 465 U. S. Stevens, concurring). example, So, for the Govern- (O’Connor, ment the United States does not violate the Establishment by hanging Clause Giotto’s Madonna on the wall of the Na- Gallery. tional
But 17 appearance, monuments with history, no common or esthetic role scattered over 22 museum, acres is not a anyone strolling surely around the lawn would each take memorial on its any own dawning terms without sense that purpose some miscellany together held the coherently more has become American law.” Art in the United Capitol, States House Doc. 94-660, No. p. 282 More importantly purposes case, of this portrait each only subject’s face; consists the Ten Commandments appear nowhere in portrait. Moses’s 5Similarly permissible, though character, of a obviously different are (even laws can be back traced to the reli Commandments the more ones) gious but currently are supported nonreligious considerations. *60 See McCreary County v. American Civil Liberties Ky., post, Union at of Court) 861 (opinion of the (noting in v. Maryland, McGowan that U. S. (1961), the “upheld Court Sunday closing practical, statutes on secular' grounds after finding government that the had religious pur forsaken the poses laws”). behind centuries-old predecessor fortuity edge grass. than and monument ex- the of the One presses pays respect pioneer admiration for women. One fighters quotes of of World And one the War II. God for law. Abraham command is the moral whose sanction grit, patriotic courage, The and God as themes are individual morality; no the source and there is com- of Jewish Christian rejected ar- circumstances, mon In we an denominator. like gument County Allegheny noting State’s, similar to the of “[t]he presence that or other Christmas decorations Santas neаrby gallery [c]ourthouse, elsewhere the .. . and of the negate [creche’s] . . . forum, fail to endorsement effect. creche, floral record demonstrates .. . that its display any other frame, was its own distinct from decora- building.” 598-599, at tions exhibitions in the 492 U. n. 48.6 argument nothing
If the to blunt the State’s museum does manifestly religious message religious purpose behind plurality’s generalities it, culled neither does the reliance on factually g., ante, from cases this E. different from one. (“We acknowledged, example, ‘religion have has closely government,’ history been our identified with Abington Township Schempp, S., School Dist. 374 U. history ‘[t]he inseparable from the and that of man It is true that the Commandments monument is unlike the we Ten case Commandments considered in the other Commandments County. posted McCreary today, were decide There the Commandments instance, county at the of the in the first whereas the State behest apparently gift Eagles, Texas received the monument as a from the which on producer conceived of the donation at the of movie bent suggestion Books v. Elk Commandments, his promoting commercial film on the Ten (CA7 hart, 2000), denied, 292, 294-295 235 F. 3d cert. S. 1058 apparent expression govern But this distinction fails to neutralize nativity scene promote religious message: although mental intent con County Allegheny Holy Society, Name we was donated reasonably occupies think [the scene] cluded that could “[n]o viewer support county government] without location the seat [its] [at S., at 599-600. approval government.” *61 history Engel religion,' Vitale, v. 370 U. S. 421, (1962)”). In opinion it until the fact, is not end of its plurality precedent turns to the relevant Stone, a case actually dealing Decalogue. with a of the plurality Anally
When the
Stone,
does confront
it tries to
applicability by limiting
avoid the case’s
holding
obvious
its
plurality
setting.
to the classroom
claims to And au
thority
limiting
way
opinion’s
for
Stone’s reach this
in the
school-prayer
Abing
of two
cases,
citations
School Dist. of
Township Schempp,
(1963),
Engel
ton
v.
374 U. 203
S.
(1962).
Vitale,
Nor can deflect Stone the Texas plurality by calling monument “a far more use than passive Decalogue] [the in Stone, was the case where the text confronted elementary *62 Ante, school students at every 691. a monu- day.” Placing ment on the is not more a ground than “passive” hanging sheet of on a wall when both contain the same text paper be read who looks at it. Stone in by anyone The problem was that the State was simply the Commandments putting there to be seen, as the monument’s is there just inscription for those who walk it.
To be sure, law meant Kentucky’s compulsory-education that the schoolchildren were to see forced every display whereas day, see the monument many choice, and those who walk the customarily can Capitol grounds presumably (and avoid it if But in choose. under our they my judgment often inexact Establishment Clause such mat- jurisprudence, ters often boil down to see ante, at 700 judgment, (Breyer, J., in this distinction should concurring judgment)), make no The difference. monument in case this sits on the grounds of the Texas State There is Capitol. something significant in the common term “statehouse” refer to a state capítol it is the civic building: home of one of the citi- every State’s zens. If in means citizen neutrality something, any be should able to visit that civic home without having confront of- meant to an expressions clearly convey ficial be at odds with his own religious position may “ event, In any been, the fact plurality ‘partic that we have as the says, ularly vigilant in compliance in monitoring Establishment Clause ” ante, schools,’ elementary secondаry at course does not of mean County Alle that anything goes outside the cases schoolhouse. As like gheny Lynch Donnelly, (1984), illustrate, S. 668 we have also closely scrutinized government displays religious symbols. And for text, reasons in discussed the Texas monument survive even cannot scrutiny. relaxed level of rejection religion, religion. County or with Alle-
gheny, concurring part in (O’Connor, (“I concurring judgment) agree displayed that the creche County Allegheny on the Grand Staircase of Courthouse, county government, conveys message the seat of to nonad- Christianity they herents of are not full members of the political community religious symbols .... public government buildings special areas of core runs a making religion reality public percep- relevant, risk of (alteration political community” tion, to status in the and in- omitted)). quotation ternal marks
Finally, though point judgment this too is a which on will vary, persuasive argument constitutionality I do not see a plurality’s in the observation that Van Orden’slawsuit comes “[fjorty years ,” ante, after the monument’s erection . . . 682, an observation that echoes the State’s contention that cutting fact in its one favor is that “the monument had stood *63 forty years generating any in Austin for some ... without controversy litigation,” Respondents Brief for It 25. necessarily passage not that I think the time is irrele- analysis. approved vant Establishment We have Clause framing-era practices they originally because must have constitutionally g., permissible, been e. understood Marsh prayer), (1983) (legislative Chambers, S. 783 and we Sunday recognized grown recognizably have laws have Maryland, time, secular over McGowan v. U. S. analogous yet argument, an evalu- There is also expression so ated, that ritualistic can become numbing vio- over time that its initial Establishment Clause point But lation becomes at too diminished for notice. some any argument, I do not of these to be the State’s understand challenge years to be that without which rather seems religious expression is too shows as a factual matter the tepid provoke a violation. a serious reaction and constitute chapter Perhaps, not luke- was the writer of Exodus but accounting may explanations do better warm, and other for the Suing late resort to the courts. a State over puts nothing plaintiff’s pocket in a great and can take a deal out, and litigators supply even with volunteer time and energy, the risk of powerfully social ostracism can be deter- rent. I that a slow walk to the courthouse, doubt even one years, that took 40 evidentiary help applying is much Establishment Clause.
I judgment would reverse the Appeals. Court of