OPINION OF THE COURT
MCCREARY COUNTY V. AMERICAN CIVIL LIBERTIESUNION OF KY.
545 U. S. ____ (2005)

SUPREME COURT OF THE UNITED STATES
NO. 03-1693

McCREARY COUNTY, KENTUCKY, et al., PETI-TIONERSv. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKYet al.

on writ of certiorari to the united states court ofappeals for the sixth circuit

[June 27, 2005]

   Justice Souter delivered theopinion of the Court.

   Executives of two counties posteda version of the Ten Commandments on the walls of theircourthouses. After suits were filed charging violations of theEstablishment Clause, the legislative body of each county adopted aresolution calling for a more extensive exhibit meant to show thatthe Commandments are Kentucky’s

O'CONNOR, J., CONCURRING
MCCREARY COUNTY V. AMERICAN CIVIL LIBERTIESUNION OF KY.
545 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 03-1693

McCREARY COUNTY, KENTUCKY, et al., PETI-TIONERSv. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKYet al.

on writ of certiorari to the united states court ofappeals for the sixth circuit

[June 27, 2005]

   Justice O’Connor, concurring.

SCALIA, J., DISSENTING
MCCREARY COUNTY V. AMERICAN CIVIL LIBERTIESUNION OF KY.
545 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 03-1693

McCREARY COUNTY, KENTUCKY, et al., PETI-TIONERSv. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKYet al.

on writ of certiorari to the united states court ofappeals for the sixth circuit

[June 27, 2005]

   Justice Scalia, with whom TheChief Justice and Justice Thomas join, and with whom JusticeKennedy joins as to Parts II and III, dissenting.

   I would uphold McCreary Countyand Pulaski County, Kentucky’s (hereinafter Counties) displays ofthe Ten Commandments. I shall discuss first, why the Court’s oftrepeated assertion that the government cannot favor religiouspractice is false; second, why today’s opinion extends the scope ofthat falsehood even beyond prior cases; and third, why even on thebasis of the Court’s false assumptions the judgment here iswrong.

I

A

   On September 11, 2001 I wasattending in Rome, Italy an international conference of judges andlawyers, principally from Europe and the United States. That nightand the next morning virtually all of the participants watched, intheir hotel rooms, the address to the Nation by the President ofthe United States concerning the murderous attacks upon the TwinTowers and the Pentagon, in which thousands of Americans had beenkilled. The address ended, as Presidential addresses often do, withthe prayer “God bless America.” The next afternoon I was approachedby one of the judges from a European country, who, after extendinghis profound condolences for my country’s loss, sadly observed “HowI wish that the Head of State of my country, at a similar time ofnational tragedy and distress, could conclude his address ‘Godbless ______.’ It is of course absolutely forbidden.”

   That is one model of therelationship between church and state—a model spread across Europeby the armies of Napoleon, and reflected in the Constitution ofFrance, which begins “France is [a] . . . secular . . . Republic.”France Const., Art. 1, in 7 Constitutions of the Countries of theWorld, p. 1 (G. Flanz ed. 2000). Religion is to be strictlyexcluded from the public forum. This is not, and never was, themodel adopted by America. George Washington added to the form ofPresidential oath prescribed by Art. II, §1, cl. 8, of theConstitution, the concluding words “so help me God.” See Blomquist,The Presidential Oath, the American National Interest and a Callfor Presiprudence, 73 UMKC L. Rev. 1, 34 (2004). The SupremeCourt under John Marshall opened its sessions with the prayer, “Godsave the United States and this Honorable Court.” 1 C. Warren, TheSupreme Court in United States History 469 (rev. ed. 1926). TheFirst Congress instituted the practice of beginning its legislativesessions with a prayer.Marsh v.Chambers,463U. S. 783, 787 (1983). The same week that Congress submittedthe Establishment Clause as part of the Bill of Rights forratification by the States, it enacted legislation providing forpaid chaplains in the House and Senate.Id., at 788. Theday after the First Amendment was proposed, the same Congress thathad proposed it requested the President to proclaim “ a day ofpublic thanksgiving and prayer, to be observed, by acknowledging,with grateful hearts, the many and signal favours of Almighty God.”See H. R. Jour., 1st Cong., 1st Sess. 123 (1826 ed.); see alsoSen. Jour., 1st Sess., 88 (1820 ed.). President Washington offeredthe first Thanksgiving Proclamation shortly thereafter, devotingNovember 26, 1789 on behalf of the American people “ ‘to theservice of that great and glorious Being who is the beneficentauthor of all the good that is, that was, or that will be,’ ”Van Orden v.Perry,ante, at 7–8(plurality opinion) (quoting President Washington’s firstThanksgiving Proclamation), thus beginning a tradition of offeringgratitude to God that continues today. SeeWallace v.Jaffree,472 U. S. 38, 100–103 (1985)(Rehnquist, J., dissenting).[Footnote 1] The same Congress also reenacted the NorthwestTerritory Ordinance of 1787, 1 Stat. 50, Article III of whichprovided: “Religion, morality, and knowledge, being necessary togood government and the happiness of mankind, schools and the meansof education shall forever be encouraged.”Id., at 52, n.(a). And of course the First Amendment itself accordsreligion (and no other manner of belief) special constitutionalprotection.

   These actions of our First President andCongress and the Marshall Court were not idiosyncratic; theyreflected the beliefs of the period. Those who wrote theConstitution believed that morality was essential to the well-beingof society and that encouragement of religion was the best way tofoster morality. The “fact that the Founding Fathers believeddevotedly that there was a God and that the unalienable rights ofman were rooted in Him is clearly evidenced in their writings, fromthe Mayflower Compact to the Constitution itself.”School Dist.of Abington Township v.Schempp,374 U. S. 203, 213(1963). See Underkuffler-Freund, The Separation of the Religiousand the Secular: A Foundational Challenge to First-AmendmentTheory, 36 Wm. & Mary L. Rev. 837, 896–918 (1995).President Washington opened his Presidency with a prayer, seeInaugural Addresses of the Presidents of the United States 1, 2(1989), and reminded his fellow citizens at the conclusion of itthat “reason and experience both forbid us to expect that Nationalmorality can prevail in exclusion of religious principle.” FarewellAddress (1796), reprinted in 35 Writings of George Washington 229(J. Fitzpatrick ed. 1940). President John Adams wrote to theMassachusetts Militia, “we have no government armed with powercapable of contending with human passions unbridled by morality andreligion. … Our Constitution was made only for a moral andreligious people. It is wholly inadequate to the government of anyother.” Letter (Oct. 11, 1798), reprinted in 9 Works of John Adams229 (C. Adams ed. 1971). Thomas Jefferson concluded his secondinaugural address by inviting his audience to pray:

“I shall need, too, the favor of that Being inwhose hands we are, who led our fathers, as Israel of old, fromtheir native land and planted them in a country flowing with allthe necessaries and comforts of life; who has covered our infancywith His providence and our riper years with His wisdom and powerand to whose goodness I ask you to join in supplications with methat He will so enlighten the minds of your servants, guide theircouncils, and prosper their measures that whatsoever they do shallresult in your good, and shall secure to you the peace, friendship,and approbation of all nations.” Inaugural Addresses of thePresidents of the United States, at 18, 22–23.

James Madison, in his first inaugural address,likewise placed his confidence “in the guardianship and guidance ofthat Almighty Being whose power regulates the destiny of nations,whose blessings have been so conspicuously dispensed to this risingRepublic, and to whom we are bound to address our devout gratitudefor the past, as well as our fervent supplications and best hopesfor the future.”Id., at 25, 28.

   Nor have the views of our peopleon this matter significantly changed. Presidents continue toconclude the Presidential oath with the words “so help me God.” Ourlegislatures, state and national, continue to open their sessionswith prayer led by official chaplains. The sessions of this Courtcontinue to open with the prayer “God save the United States andthis Honorable Court.” Invocation of the Almighty by our publicfigures, at all levels of government, remains commonplace. Ourcoinage bears the motto “IN GOD WE TRUST.” And our Pledge ofAllegiance contains the acknowledgment that we are a Nation “underGod.” As one of our Supreme Court opinions rightly observed, “Weare a religious people whose institutions presuppose a SupremeBeing.”Zorach v.Clauson,343 U. S. 306, 313(1952), repeated with approval inLynch v.Donnelly,465 U. S. 668, 675(1984);Marsh, 463 U. S., at 792;Abington Township,supra, at 213.

   With all of this reality (andmuch more) staring it in the face, how can the Courtpossibly assert that “ ‘the First Amendment mandatesgovernmental neutrality between … religion and nonreligion,’ ”ante, at 11, and that “[m]anifesting a purpose to favor .. . adherence to religion generally,”ante, at 12, isunconstitutional? Who says so? Surely not the words of theConstitution. Surely not the history and traditions that reflectour society’s constant understanding of those words. Surely noteven the current sense of our society, recently reflected in an Actof Congress adoptedunanimously by the Senate and withonly 5 nays in the House of Representatives, see 148 Cong. Rec.S6226 (2002);id., at H7186, criticizing a Court ofAppeals opinion that had held “under God” in the Pledge ofAllegiance unconstitutional. See Act of Nov. 13, 2002, §§1(9),2(a), 3(a), 116 Stat. 2057, 2058, 2060–2061 (reaffirming the Pledgeof Allegiance and the National Motto (“In God We Trust”) andstating that the Pledge of Allegiance is “clearly consistent withthe text and intent of the Constitution”). Nothing stands behindthe Court’s assertion that governmental affirmation of thesociety’s belief in God is unconstitutional except the Court’s ownsay-so, citing as support only the unsubstantiated say-so ofearlier Courts going back no farther than the mid-20th century. Seeante, at 11, citingCorporation of Presiding Bishop ofChurch of Jesus Christ of Latter&nbhyph;day Saints v.Amos,483U. S. 327, 335 (1987), in turn citingLemon v.Kurtzman,403 U. S. 602, 612(1971), in turn citingBoard of Ed. of Central School Dist. No.1 v.Allen,392 U. S. 236, 243(1968), in turn quotingAbington Township,supra,at 222, in turn citingEverson v.Board of Ed. ofEwing,330 U. S.1, 15 (1947).[Footnote 2]And it is, moreover, a thoroughly discredited say-so. It isdiscredited, to begin with, because a majority of the Justices onthe current Court (including at least one Member of today’smajority) have, in separate opinions, repudiated the brain-spun“Lemon test” that embodies the supposed principle ofneutrality between religion and irreligion. SeeLamb’sChapel v.Center Moriches Union Free School Dist.,508 U. S. 384,398–399 (1993) (Scalia, J., concurring in judgment) (collectingcriticism ofLemon);Van Orden,ante, at1, 6 (Thomas, J., concurring);Board of Ed. of Kiryas JoelVillage School Dist. v.Grumet,512 U. S. 687, 720(1994) (O’Connor, J., concurring in part and concurring injudgment);County of Allegheny v.American CivilLiberties Union, Greater Pittsburgh Chapter,492 U. S. 573, 655–656,672–673 (1989) (Kennedy, J., concurring in judgment in part anddissenting in part);Wallace, 472 U. S., at 112(Rehnquist, J., dissenting); see alsoCommittee for Public Ed.and Religious Liberty v.Regan,444 U. S. 646, 671(1980) (Stevens, J., dissenting) (disparaging “the sisyphean taskof trying to patch together the ‘blurred, indistinct, and variablebarrier’ described inLemon”). And it is discreditedbecause the Court has not had the courage (or the foolhardiness) toapply the neutrality principle consistently.

   What distinguishes the rule of law from thedictatorship of a shifting Supreme Court majority is the absolutelyindispensable requirement that judicial opinions be grounded inconsistently applied principle. That is what prevents judges fromruling now this way, now that—thumbs up or thumbs down—as theirpersonal preferences dictate. Today’s opinion forthrightly (oractually, somewhat less than forthrightly) admits that it does notrest upon consistently applied principle. In a revealing footnote,ante, at 11, n. 10, the Court acknowledges that the“Establishment Clause doctrine” it purports to be applying “lacksthe comfort of categorical absolutes.” What the Court means by thislovely euphemism is that sometimes the Court chooses to decidecases on the principle that government cannot favor religion, andsometimes it does not. The footnote goes on to say that “[i]nspecial instances we have found good reason” to dispense with theprinciple, but “[n]o such reasons present themselves here.”Ibid. It does not identify all of those “specialinstances,” much less identify the “good reason” for theirexistence.

   I have cataloged elsewhere the variety ofcircumstances in which this Court—evenafter its embraceofLemon’s stated prohibition of such behavior—hasapproved government action “undertaken with the specific intentionof improving the position of religion,”Edwards v.Aguillard,482 U. S. 578, 616 (1987) (Scalia, J.,dissenting). Seeid., 616–618. Suffice it to say here thatwhen the government relieves churches from the obligation to payproperty taxes, when it allows students to absent themselves frompublic school to take religious classes, and when it exemptsreligious organizations from generally applicable prohibitions ofreligious discrimination, it surely means to bestow a benefit onreligious practice—but we have approved it. SeeAmos,supra, at 338 (exemption from federal prohibition ofreligious discrimination by employers);Walz v.TaxComm’n of City of New York,397 U. S. 664, 673(1970) (property tax exemption for church property);Zorach, 343 U. S., at 308, 315 (law permitting students toleave public school for the purpose of receiving religiouseducation). Indeed, we have even approved (post-Lemon)government-led prayer to God. InMarsh v.Chambers,supra, the Court upheld the NebraskaState Legislature’s practice of paying a chaplain to lead it inprayer at the opening of legislative sessions. The Court explainedthat “[t]o invoke Divine guidance on a public body entrusted withmaking the laws is not . . . an ‘establishment’ of religion or astep toward establishment; it is simply a tolerable acknowledgmentof beliefs widely held among the people of this country.” 463 U.S., at 792. (Why, one wonders, is not respect for the TenCommandments a tolerable acknowledgment of beliefs widely heldamong the people of this country?)

   The only “good reason” for ignoring theneutrality principle set forth in any of these cases was theantiquity of the practice at issue. SeeMarsh,supra, at 786–792, 794;Walz,supra, at676–680. That would be a good reason for finding the neutralityprinciple a mistaken interpretation of the Constitution, but it ishardly a good reason for letting an unconstitutional practicecontinue. We did not hide behind that reason inReynoldsv.Sims,377 U. S. 533 (1964),which found unconstitutional bicameral state legislatures of a sortthat had existed since the beginning of the Republic. And almostmonthly, it seems, the Court has not shrunk from invalidatingaspects of criminal procedure and penology of similar vintage. See,e.g.,Deck v.Missouri, 544 U. S. ___,___ (2005) (slip op., at 10–11) (invalidating practice of shacklingdefendants absent “special circumstances”);id., at ___(slip op., at 7–11) (Thomas, J., dissenting);Roper v.Simmons, 543 U. S. ___, ___ (2005) (slip op., at 14)(invalidating practice of executing under-18-year-old offenders);id., at ___ (slip op., at 2, n. 1) (Scalia, J.,dissenting). What, then, could be the genuine “good reason” foroccasionally ignoring the neutrality principle? I suggest it is theinstinct for self-preservation, and the recognition that the Court,which “has no influence over either the sword or the purse,” TheFederalist No. 78, p. 412 (J. Pole ed. 2005), cannot go too fardown the road of an enforced neutrality that contradicts bothhistorical fact and current practice without losing all thatsustains it: the willingness of the people to accept itsinterpretation of the Constitution as definitive, in preference tothe contrary interpretation of the democratically electedbranches.

   Besides appealing to the demonstrably falseprinciple that the government cannot favor religion overirreligion, today’s opinion suggests that the posting of the TenCommandments violates the principle that the government cannotfavor one religion over another. Seeante, at 19; see alsoVan Orden,ante, at 11–13 (Stevens, J.,dissenting). That is indeed a valid principle where public aid orassistance to religion is concerned, seeZelman v.Simmons-Harris,536 U. S. 639, 652(2002), or where the free exercise of religion is at issue,Church of Lukumi Babalu Aye, Inc. v.Hialeah,508 U. S. 520,532–533 (1993);id., at 557–558 (Scalia, J., concurring inpart and concurring in judgment), but it necessarily applies in amore limited sense to public acknowledgment of the Creator. Ifreligion in the public forum had to be entirely nondenominational,there could be no religion in the public forum at all. One cannotsay the word “God,” or “the Almighty,” one cannot offer publicsupplication or thanksgiving, without contradicting the beliefs ofsome people that there are many gods, or that God or the gods payno attention to human affairs. With respect to publicacknowledgment of religious belief, it is entirely clear from ourNation’s historical practices that the Establishment Clause permitsthis disregard of polytheists and believers in unconcerned deities,just as it permits the disregard of devout atheists. TheThanksgiving Proclamation issued by George Washington at theinstance of the First Congress was scrupulouslynondenominational—but it was monotheistic.