Public displays of affection ... for God: religious monuments after McCreary and Van Orden.

• Author: Clement, Edith Brown

INTRODUCTION I. MCCREARY AND VAN ORDEN A. McCreary B. Van Orden II. REFLECTIONS ON MCCREARYAND VAN ORDEN III. TWO "PURPOSE" APPROACHES AFTER MCCREARY AND VAN ORDEN A. Skeptical Approach: Buono I-IV B. Purpose-Sensitive Approach: Access Fund IV. FUTURE QUESTIONS INTRODUCTION

On March 2, 2005, the United States Supreme Court heard two cases involving the constitutionality of public displays of the Ten Commandments under the Establishment Clause of the First Amendment: McCreary County v. ACLU (1) and Van Orden v. Perry. (2) McCreary involved a display of nine copies of historically significant documents in identical frames hanging on the walls of two Kentucky courthouses. The documents included the Magna Carta, the Declaration of Independence, and the lyrics to The Star-Spangled Banner. They also included the text of the Ten Commandments, accompanied by a statement explaining the role of the Commandments in influencing American law. In Van Orden, the challenged display was a granite monument--six feet high and three-and-a-half feet wide--whose primary content was the text of the Ten Commandments but which also included two Stars of David and the Greek letters Chi and Rho, an ancient symbol for Jesus Christ. As one commentator predicted at the time, "[T]hese two cases are likely to be resolved in accordance with I Kings 3:16-28[:] And [O'Connor] said: 'Fetch me a sword.' And they brought a sword before [O'Connor]. And [O'Connor] said: 'Divide the living child in two, and give half to the one, and half to the other.'" (3)

The baby was split, but not by Justice O'Connor. Justice Breyer emerged as the supposed Solomon in both cases, and it was he who wrote the controlling opinion in Van Orden. Perhaps to the surprise of some, the Court held in a fragmented opinion that the large granite monument in Van Orden was indeed constitutional. And instead of upholding the carefully nuanced historical display in McCreary, the Court held that its stormy history, including repeated legal and rhetorical battles concerning both its form and substance, rendered it an unconstitutional establishment of religion.

I respectfully submit that McCreary and Van Orden imprudently shifted religious monument jurisprudence under the Establishment Clause away from a display-focused analysis and toward an actor-focused analysis. A display-focused approach emphasizes the placement and content of the display itself and is expressed in "bright-line" legal rules that are applicable to all monuments of a particular type. An actor-focused approach, in contrast, uses the historical and physical qualities associated with a display to shed light on the purposes of those who placed it. Under the actor-focused approach, the same monument can be constitutional or unconstitutional depending on the motives of the relevant government actors--ultimately, this is a recipe for further confusion and uncertainty over what some have called our "first freedom." (4)

One example of a display-focused Establishment approach is the 1980 case Stone v. Graham. (5) In Stone, the Supreme Court held that Kentucky could not post the Ten Commandments on the walls of its public school classrooms. (6) Although Stone also held that the legislature did not have a valid secular, or nonreligious, purpose for posting the Ten Commandments, the short opinion relied principally on the content of the display as prima facie evidence of the lack of such a purpose. (7)

The strength of a display-focused approach is that it can offer a basis for clear guidelines to public officials because it emphasizes the physical characteristics, placement, and content of the display. The weakness is that adequate guidelines have not been developed to account for the culturally and historically important uses of religious symbols in public spaces, perhaps most notably on the facade of the Supreme Court building itself. The tension in the display-focused approach is one of the factors which led to ten separate opinions and a split decision in the McCreary and Van Orden sequence. (8)

The actor-focused approach has strengths and weaknesses of its own, which are apparent in the first generation of federal appellate decisions issued after Van Orden. On one hand, the actor-focused analysis has given courts greater flexibility to uphold some religious monuments. (9) The courts of appeals, however, have struggled to answer the crucial questions of who and when: whose motives are relevant and what is the applicable time frame when evaluating the government's actions? Can a later refurbishment of an originally constitutional monument create an unconstitutional establishment where none existed before? (10) Can the religious motivation of nongovernmental actors taint the government's secular purpose and create an unconstitutional endorsement of religion? (11) As one might guess, even leaving aside the question of its jurisprudential value, the time and sensitivity required when applying the actor-focused approach have already had a big impact on Establishment Clause cases in the courts of appeals. (12)

1. MCCREARY AND VAN ORDEN

   To understand the shift from a display-focused approach to an actor-focused approach and its significance, one must first take a closer look at the way the Court decided McCreary and Van Orden.

   1. McCreary

      Justice Souter wrote the majority opinion in McCreary, striking down the Kentucky Ten Commandments display. (13) Justice Souter applied the famous--or infamous, depending on one's point of view--Establishment Clause test from Lemon v. Kurtzman, which has three elements. (14) "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." (15) Interestingly, Justice Souter focused on the "secular purpose" element--a rarely invoked prong of the Lemon test. In so doing, he rejected Kentucky's argument that the legislature's purpose was "unknowable" and that courts that search for purposes are prone to "act selectively and unpredictably in picking out evidence of subjective intent." (16) Justice Souter asserted that the legislature's purpose was knowable through the normal legal tools of text, history, and implementation, and he pointed out that these tools are used by courts every day to determine government purposes in cases involving Equal Protection claims or statutory interpretation. (17)

      After concluding that the government's purpose was knowable, Justice Souter emphasized that the government could not satisfy Lemon's purpose prong by proffering any motive it pleased. The courts must examine the government's allegedly secular motives to make sure that they are not a "sham." (18) Further, according to Justice Souter, the government's secular purpose must also be the preeminent purpose, not just secondary to a primarily religious intent. (19)

      Justice Scalia's dissent sharply criticized the preeminent purpose principle. Justice Scalia noted that "[i]n all but one of the five cases in which this Court has invalidated a government practice on the basis of its purpose to benefit religion, it has first declared that the statute was motivated entirely by the desire to advance religion." (20) In the one case where the Supreme Court said that the "state action was invalid because its 'primary' or 'preeminent' purpose was to advance a particular religious belief," that statement was "unnecessary to the result, since the Court rejected the State's only proffered secular purpose as a sham." (21) Justice Scalia predicted that the majority opinion in McCreary would dramatically affect future Establishment Clause litigation "[b]y shifting the focus of Lemon's purpose prong from the search for a genuine, secular motivation to the hunt for a predominantly religious purpose." (22) Such a search would require a "rigorous review of the full record" (23)--a laborious and potentially risky task. As described below, the courts of appeals have seemingly fulfilled Justice Scalia's predictions, remanding several Establishment Clause cases for additional fact finding in light of McCreary. (24)

      Justice Souter then moved from discussing the need for a genuine, preeminent secular purpose to instructing courts on how to determine that purpose. He said that the government's purpose is to be measured from the perspective of an objective observer who is presumed unfamiliar with the context and history of the government's actions in each case. (25) Justice Scalia argued in dissent that this method of determining purpose resulted in hostility to religion, because "even if a government could show that its actual purpose was not to advance religion, it would presumably violate the Constitution as long as the Court's objective observer would think otherwise." (26) Justice Scalia asserted that, under the majority's approach, "the legitimacy of a government action with a wholly secular effect [c]ould turn on the misperception of an imaginary observer that the government officials behind the action had the intent to advance religion." (27) Justice Souter concluded his discussion of the Lemon test's purpose element by asserting that "the same government action may be constitutional if taken in the first instance and unconstitutional if it has a sectarian heritage." (28) The courts of appeals have taken Justice Souter at his word, and at least one court has upheld a display of the Ten Commandments that was identical to the McCreary display but which lacked its stormy history. (29)

      Justice Souter's reasons for defending and elaborating on the purpose element of the Lemon test in such detail become clear in the next part of the McCreary opinion. The nine historical documents collectively titled the "Foundations of American Law and Government" were parts of the third Ten Commandments display posted by McCreary County. (30) Justice Souter relied...