McCreary County v. American Civil Liberties Union of Kentucky
545 U.S. 844 (2005)

  • Several counties (including McCreary) in Kentucky began displaying copies of the Ten Commandments in courthouses and public schools.
  • The ACLU sued for an injunction, claiming that the displays violated the Establishment Clause of the 1st Amendment.
    • In response, the displays around the Ten Commandments were modified to include eight smaller, historical documents containing religious references as their sole common element.
      • e.g., the Declaration of Independence’s “endowed by their Creator” passage.
  • The Trial Court found for the ACLU.
    • McCreary County argued that they weren’t trying to promote Christianity, they were just displaying the history of law.
      • Despite the fact that 8 out of the 10 Commandments are not crimes.
    • However, the Court found that the original display lacked any secular purpose because the Ten Commandments are a distinctly religious document, and that the second version lacked a secular purpose because the Counties narrowly tailored their selection to those specifically referring to Christianity.
  • McCreary County tried again, this time revising the displays to include secular messages. ACLU sued for another injunction.
    • McCreary Country claimed their intent was to show that the Ten Commandments were part of the foundation of American law and government and to educate County citizens as to the documents.
    • However, the Court found that, McCreary Country was just desperately looking for ways to get around the law.
  • The Trial Court found for the ACLU. McCreary County appealed.
  • The Appellate Court affirmed. McCreary County appealed.
  • The US Supreme Court affirmed.
    • The US Supreme Court found that the purpose of the displays was to advance a particular religion.
      • The Court found that a reasonable observer would have concluded that the government was endorsing religion.
    • The Court found that advancing a particular religion is a textbook violation of the Establishment Clause.
  • Compare this case to Van Orden v. Perry (545 U.S. 677 (2005)), which had very similar facts, but found that the display of the Ten Commandments was not an unconstitutional infringement of the Establishment Clause.
    • Strangely, both cases were decided the same day.
    • Justice Breyer was the swing vote, and indicated that while he agreed with the logic of the majority in McCreary, slight differences in the facts made him decide that the display in Van Orden had primarily a secular message, not a religious one. In addition, the display in Van Orden had been there for 40 years with no problem before someone sued to get it removed, implying that people didn’t really have a problem with it.
      • You could argue that the purpose of the Establishment Clause is to prevent divisiveness due to religious differences. In this case, it was arguable that the consequences of removing the Ten Commandments would be less than the consequences of just leaving them there.