Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
Closed Expands Expression
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The U.S. Supreme Court upheld an injunction as part of a claim brought by the American Civil Liberties Union against two counties in Kentucky for public displays of the Ten Commandments in the counties’ courthouses. The Appellants, McCreary County and Pulaski County, argued for a limitation on the ‘secular purpose’ element of the three-part Lemon test to determine whether a government action violates the Establishment Clause of the First Amendment. The Court rejected the Counties’ attempt to abandon the secular purpose test as set out in Lemon, stating that scrutinizing the purpose of the action makes sense in Establishment Clause analysis. Moreover, the Court said that the evolution of the litigation, which included the Counties’ displaying various versions of the Ten Commandments, was relevant in evaluating the Counties’ claim of secular purpose.
In reaffirming government neutrality in religious matters by preventing the display of the Ten Commandments in public courthouses, the Supreme Court highlighted that neutrality is essential to ensure the free exercise of religion. The case reaffirms the test in Lemon v. Kurtzman and both decisions are cited in cases regarding the Establishment Clause of the First Amendment, most recently in April 2017 in State of Hawai’i and Elshikh v. Trump.
In the summer of 1999, McCreary County and Pulaski County, Kentucky displayed the Ten Commandments in the public area of their courthouses. In McCreary County, the local legislative body had ordered the Ten Commandments to be displayed in a “high traffic area.” In Pulaski County, the Judge-Executive hung the Ten Commandments in a public ceremony accompanied by a local pastor who noted to the press that the display was “one of the greatest things the judge could have done to close out the millennium.” In both Counties, the Ten Commandments were highly visible for individuals conducting business in the courthouse.
In November 1999, the American Civil Liberties Union (ACLU) sued McCreary County and Pulaski County, Kentucky claiming the public display of the Ten Commandments in county courthouses violated the Establishment Clause of the First Amendment. The ACLU requested a preliminary injunction against the Counties maintaining the displays. Within a month of the claim being filed and prior to District issuing a decision, the local legislative bodies of both Counties passed a resolution to expand the displays. The Resolution proclaimed the Ten Commandments are “the precedent legal code upon which the criminal and civil codes of… Kentucky were founded,” “the Ten Commandments are codified in Kentucky’s civil and criminal laws,” they mentioned a unanimous vote in favor “Jesus Christ, Prince of Ethics,” and that the “Founding Father[s] [had an] explicit understanding of the duty of elected officials to publicly acknowledge God as the source of America’s strength and direction.” The resolution required the resolution itself to be posted as well as eight other documents that all had religious themes (e.g. President Lincoln’s 1863 declaration of a National Day of Prayer and Humiliation and the “endowed by the Creator” passage of the Kentucky Constitution).
On May 5, 2000, after hearing arguments the District Court entered a preliminary injunction requiring that the displays be removed immediately and that no county official create similar displays. The District Court followed the three-part formulation test as established in Lemon v. Kurtzman, finding that the display lacked secular purpose because the Ten Commandments are a distinctly religious document. The Counties claimed that the posting was educational but the District Court disagreed stating, “[the display] can hardly be said to present meaningfully the story of this country’s religious traditions” and, further, found that the second display was clearly non-secular because it only highlighted instances of Christianity. The Counties filed a notice of appeal but later dismissed the notice of appeal upon the procurement of new legal counsel.
The Counties then displayed the Ten Commandments in the courthouses for the third time in a year. No legislation prompted this display in which the Ten Commandments were now quoted in more detail than before. They were included in a display called, “The Foundation of American Law and Government Display.” It was displayed beside various documents (e.g. lyrics to the song ‘Star Spangled Banner’ and the Preamble to the Kentucky Constitution). A plaque was placed next to the Ten Commandments that stated, “The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country . . .”
The ACLU filed a request to supplement the preliminary injunction to include the Counties’ third display. The Counties argued that the new display was once again educational, but this time, to also show that the Ten Commandments were foundational to American Law and Government. The District Court, once again disagreed, clearly noting the intent of the display was for non-secular purposes not educational. The District Court supplemented the injunction. On appeal, the Sixth Circuit Court of Appeals affirmed the District Court’s decision. The case was taken on a writ of certiorari by the Supreme Court.
Justice Souter delivered the opinion of the Court, affirming the lower courts’ decision and finding the display of the Ten Commandments in county courthouses violated the Establishment Clause of First Amendment.
The Counties firstly argued that the very consideration of purpose is deceptive: according to them, true “purpose” is unknowable, and its search merely an excuse for courts to act selectively and unpredictably in picking out evidence of subjective intent. The Court disagreed. In reviewing the first prong of the Lemon test that asks whether the government’s action has a secular legislative purpose, the Court referred to cases determining that the Establishment Clause of the First Amendment requires government neutrality in matters concerning religion. It said there can be no neutrality when the government clearly favors one religion over the other and promotes a particular view on religious matters.
The Court said that the test was relatively straightforward where there is readily available evidence that “supported a commonsense conclusion that a religious objective permeated the government’s actions.” The Court also said that while deference is given to the government’s stated reason, the secular purpose must be “genuine, not a sham, and not merely secondary to a religious objective.”
Secondly, the Counties argued that the history surrounding the case namely, the two previous attempts to post the Ten Commandments, should not be taken into account in the present case. Further, the Counties argued that the third display should be viewed by an “absentminded objective observer” not one presumed to be familiar with the history…”. The Court dismissed this argument stating that the Counties were asking it to ignore probative evidence. The “reasonable observer of the action must be aware of the history and context of the community and the forum in which the religious display appears.”
The Court noted that the Ten Commandments are an “instrument of religion” and, when a government attempts to display them publicly and alone the religious intent is unmistakable. If the government claims that the display is secular then context is important. In this case, the Court noted the presence of the pastor at the ceremony for posting the framed Commandments in Pulaski County, a sign that any “reasonable observer” would interpret as the County’s proclamation of the religious message of the Ten Commandments.
The Court said that the second posting of the Ten Commandments accompanied by hangings of other documentation that indirectly or directly spoke of Christianity only enhanced the religious objective. The Court said the second display was a sham designed to continue displaying the Ten Commandments and push a religious agenda. It said a “reasonable observer” would not be able to see past the religious motives of the initial display upon viewing the second.
The Counties’ final and third posting of the Ten Commandments was masked as the “Foundation of American Law and Government.” However the Counties failed to persuade the Court that the religious motive of the prior two displays was eradicated by the third display. On the contrary, the religious motives were arguably more prominent in the third display as witnessed by the inclusion of more exclusively religious text from the Ten Commandments than the previous two displays. Nor did the documents that accompanied the Ten Commandments express anything other than Christian values. The Court highlighted the fact that a collection of documents proclaiming to be “foundational” to the American government did not include the Fourteenth Amendment, the most significant structural provision adopted since the original framing and also omitted key provisions of the original Constitution. These factors indicated that the Counties had a religious motive for posting the Ten Commandments and had thus violated the Establishment Clause of the First Amendment by failing to maintain government neutrality.
In holding the preliminary injunction was supported by evidence that the Counties’ purpose had not changed at the third stage, the Court said that it did not thereby decide that the Counties’ past actions forever taint any effort on their part to deal with the subject matter. It said it held only that purpose needs to be taken seriously under the Establishment Clause and needs to be understood in light of context.
The Court spent some time on the Dissent which downplayed the importance of neutrality in the interpretation of the Constitution. The Court disagreed. It said that the prohibition on establishment covered a variety of issues from prayer in widely varying government settings, to financial aid for religious individuals and institutions, to comment on religious questions. It also pointed out that the First Amendment has not one but two clauses tied to “religion,” the second forbidding any prohibition on the “the free exercise thereof,” and it acknowledged that sometimes the two clauses can compete. For example, the government is allowed to pay military clergy so that enlisted men may practice their religion, otherwise enlisted men may be restricted from following their faith. In these circumstances and given the variety of interpretative problems, the Court said that the principle of neutrality provided a good sense of direction.
The Supreme Court affirmed the Sixth Circuit Court’s upholding of the preliminary injunction.
Stevens, O’Connor, Ginsburg, and Breyer, JJ., joined. O’Connor, J. filed a concurring opinion. Scalia, J. filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined, and in which Kennedy, J., joined in parts.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In reaffirming government neutrality in religious matters by preventing the display of the Ten Commandments in public courthouses, the Supreme Court highlighted that neutrality is essential to ensure the free exercise of religion.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The case reaffirms the test in Lemon v. Kurtzman and both decisions are cited in future cases regarding the Establishment Clause of the First Amendment, most recently in April 2017 in State of Hawai’i and Elshikh v. Trump.
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