Does a Display's History Inform its Constitutionality?

McCreary County v. American Civil Liberties Union of Ky.

This case deals with two sets of three successive installations displaying the Ten Commandments. The first set (each display at one of two statehouses) were installed after a resolution was passed by the legislative bodies of the statehouses’ respective counties in Kentucky. After an establishment clause objection a judge ordered the displays removed. The second set of displays were then installed, this time displaying the Ten Commandments along with other historical texts, and along with a description of the purpose of the legislature in the display (public education regarding the role of the Ten Commandments in the development of law). This too was ordered removed, in large part because the previous display’s clear religious purpose revealed the true motives of the legislature. A third set of displays were erected, like the second, only these were not mandated by a resolution of the legislature. The Court here has to decide whether the history of the installations taints the current installations, and whether the current installations violate the Establishment Clause.

In finding that to determine the constitutionality of the displays the development of the display should be taken into account, the majority describes this development. There is some discrepancy between the majority and the minority opinions in what exactly the displays looked like, but the majority focuses on the addition of items to the Ten Commandment displays in the purported interest of context, but which seemed to have been clearly chosen to “highlight their religious element” (i.e. God reference in the Pledge of Allegiance, etc). The majority then applies the Lemon test, considering whether a) the display had a secular purpose b) whether it had the effect of advancing or inhibiting religion and c) whether it created excessive government entanglement with religion (noting that the display could, for example, fail the first, and not fail the test as a whole).

The counties argue that the purpose of the displays are unknowable, an argument that is rejected in light of the volume of inquiries into purpose that the Court undergoes on a regular basis to determine the proper construction of the laws. The Court declines to abandon the purpose test here. In describing the importance of the purpose test the Court, interestingly, allows for the possibility that an enactment have a religious purpose that is hidden well enough to pass scrutiny. The Court also (somewhat) reformulates the purpose test to require that the secular purpose not be secondary to a religious purpose (it had previously only required that the secular purpose not be a “sham”). In rejecting the argument that the history of the displays should not be considered the majority notes that “the world is not made brand new every morning,” and suggests that a “reasonable observer” could be expected to be aware of the history of the displays. The majority also recognizes the difference between displaying the text of the commandments (as is the case here), and a depiction of the two tablets themselves, finding the former to be a religious appeal. The majority then describes the reasons it holds in believing that strict neutrality is a reasonable reading of the requirements of the Establishment Clause, concluding that there is “no common understanding about the limits of the establishment provision” in regards to the Framer’s views.

The dissent is first devoted to describing a view of the Establishment Clause as it was understood by the Framers, and historically, which allowed for the appeal to God publicly by the President or Congress. The dissent points the disparate application of the Lemon test, and justifies its reference to the actions of past politicians as demonstrative of what the Establishment Clause meant. The dissent rejects the argument that an originalist construction prohibits incorporation against the States by the 14th Amendment, since this is not the case for other parts of the Constitution. The dissent also takes issue with the majority’s appeal to a “reasonable observer” because this opens up the possibility of a statute being held unconstitutional based on the misconceptions of imaginary people. The rest is devoted to attacking the majority’s description, and description of the development, of the displays.