This is the teaching of McGowan v. Maryland, 366 U. S. 420 (1961), which upheld Sunday closing statutes on practical, secular grounds after finding that the government had forsaken the religious purposes behind centuries-old predecessor laws. 1901) (hereinafter Memorial). And as to Jefferson: The notoriously self-contradicting Jefferson did not choose to have his nonauthorship of a Thanksgiving Proclamation inscribed on his tombstone. Id., at 57, n. 45 (internal quotation marks omitted). See U. S. Dept. v. Pinette, 515 U. S. 753, 776-777 (1995) (O'CONNOR, J., concurring in part and concurring in judgment) (stating that "when the reasonable observer would view a government practice as endorsing religion, . by evidence that the Counties’ purpose had not changed at the third stage, we This is no time to deny the prudence of understanding the Establishment Clause to require the government to stay neutral on religious belief, which is reserved for the conscience of the individual.
Voluntary religious belief and expression may be as threatened when government takes the mantle of religion upon itself as when government directly interferes with private religious practices.

v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY ET AL. [6] The court also found that the display had the effect of endorsing religion: "Removed from their historical context and placed with other documents with which the only common link is religion, the documents have the undeniable effect of endorsing religion."
Def. of Moses holding tablets exhibiting a portion of the Hebrew text of the later, The walls of both court-houses were already lined with historical documents and other assorted portraits; each Foundations Display was exhibited in the same format as these other displays and nothing in the record suggests that either County took steps to give it greater prominence. . As we said, the Court often does accept governmental statements of purpose, in keeping with the respect owed in the first instance to such official claims. [26] The dissent cites material suggesting that separationists like Jefferson and Madison were not absolutely consistent in abstaining from official religious acknowledgment. out a text of the Commandments as distinct from any traditionally symbolic The dissent, however, puts forward a limitation on the application of the neutrality principle, with citations to historical evidence said to show that the Framers understood the [877] ban on establishment of religion as sufficiently narrow to allow the government to espouse submission to the divine will. Though [37] The Court's only response is that the inclusion of the Ten Commandments in a display about the foundations of American law reflects "a purpose to [call on] citizens to act in prescribed ways as a personal response to divine authority," in a way that legislative prayer and the inclusion of a crèche in a holiday display do not. Republic." Counties’ claims did not, however, persuade the court, intimately familiar with religion. 2d, at 698.

The posting consists of nine framed documents of equal size, one of them setting out the Ten Commandments explicitly identified as the "King James Version" at Exodus 20:3-17, 145 F. Supp.

They worried that “the same authority which can establish Christianity, in "[9] Id., at 478. .

177a (McCreary County), 178a (Pulaski County). required their posting in public school classrooms, their isolated exhibition

of the Ten Commandments taken from the King James Bible.

Ante, at 866, n. 14. Stone stressed the significance of Historical evidence thus supports no solid argument for changing course (whatever force the argument might have when directed at the existing precedent), whereas public discourse at the present time certainly raises no doubt about the value of the interpretative approach invoked for 60 years now. The parallels between this case and Marsh and Lynch are sufficiently compelling that they ought to decide this case, even under the Court's misguided Establishment Clause jurisprudence.[37]. Ibid. recognized that the Commandments are an “instrument of religion” and that, at The After declining the invitation to abandon concern with purpose wholesale, we also have to avoid the Counties' alternative tack of trivializing the enquiry into it. existence of God. The observer would no more think himself "called upon to act" in conformance with the Commandments than he would think himself called upon to think and act like William Bradford because of the courthouse posting of the Mayflower Compact—especially when he is told that the exhibit consists of documents that contributed to American law and government. Id., at 472-473. Our Constitution was made only for a moral and religious people.

While heightened deference to legislatures is appropriate for the review of economic legislation, an approach that credits any valid purpose, no matter how trivial, has not been the way the Court has approached government action that implicates establishment. sense…. “First Amendment mandates governmental neutrality between religion and religion, Surely that is a gross exaggeration.

67). A few remarks are necessary in response to the criticism of this dissent by the Court, as well as JUSTICE STEVENS' criticism in the related case of Van Orden v. Perry, ante, p. 707. Id., at 851, 852. In Marsh v. Chambers, the Court upheld the Nebraska State Legislature's practice of paying a chaplain to lead it in prayer at the opening of legislative sessions. [8] 145 F. Supp. about the embodiment of ethics in Christ. If the government's proffered secular purpose is not genuine, then the government has no secular purpose at all.

Today, the Counties make no attempt to defend their undeniable objective, but instead hopefully describe version two as "dead and buried." .

2005).[39].

I shall discuss, first, why the Court's oft repeated assertion that the government cannot favor religious practice is false; second, why today's opinion extends the scope of that falsehood even beyond prior cases; and third, why even on the basis of the Court's false assumptions the judgment here is wrong.

public schools, this Court recognized that the Commandments “are undeniably a

Nor did the selection of posted material suggest a clear theme that might prevail over evidence of the continuing religious object.

403 U. S., at 612. But, a record of inconsistent historical practice is too weak a lever to upset decades of precedent adhering to the neutrality principle. EDIT ANNOTATED ITEM INFORMATION DELETE ANNOTATED ITEM.

Nor do we have occasion here to hold that a sacred text can never be integrated constitutionally into a governmental display on the subject of law, or American history. Under these circumstances, 2d 777, 787-789 (ED Ky. 2002) (rejecting Establishment Clause challenge to an identical Foundations Display and distinguishing McCreary County on the ground [908] that the County's purpose had not been "tainted with any prior history").

This is truly a remarkable view. .

. Just as Holmes's dog could tell the difference between being kicked and being stumbled over, it will matter to objective observers whether posting the Commandments follows on the heels of displays motivated by sectarianism, or whether it lacks a history demonstrating that purpose. If you would like access to the new version of the H2O platform and have not already been contacted by a member of our team, please contact us at h2o@cyber.law.harvard.edu. [4] Within a month, and before [853] the District Court had responded to the request for injunction, the legislative body of each County authorized a second, expanded display, by nearly identical resolutions reciting that the Ten Commandments are "the precedent legal code upon which the civil and criminal codes of . The display in Stone had no context that might have indicated an object beyond the religious character of the text, and the Counties' solo exhibit here did nothing more to counter the sectarian implication than the [869] postings at issue in Stone. religions is an enterprise that, once begun, has no logical stopping point. 2d, at 686-687; 96 F. Supp. showing that the Counties were posting the Commandments precisely because of They may not have foreseen the variety of religions for which this Nation would eventually provide a home. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority." Yes and yes. There is no precedent for the Counties' arguments, or reason supporting them. .

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