McCreary County v. American Civil Liberties Union of Ky.
The Supreme Court ruled that two Kentucky counties could not use a courthouse display pairing the Ten Commandments with other historical documents to disguise what the record showed was a religious purpose, given how the display had evolved from an earlier, openly religious version.
The decision reaffirms that courts may look at a government body's true purpose -- including its history of prior actions -- when deciding whether a religious display crosses the constitutional line, meaning a county's own track record can doom a display that might otherwise pass muster.
How it got here: A federal district court blocked the displays with a preliminary injunction; the Sixth Circuit affirmed; the counties asked the Supreme Court to review that ruling.
The Case in Depth
What happened
Two Kentucky counties hung large framed copies of the Ten Commandments in their courthouses. After the ACLU sued, arguing the displays favored religion, the counties expanded the exhibits to include other documents with religious themes, then later replaced those with a display pairing the Commandments with historical documents like the Declaration of Independence and Magna Carta, calling it educational.
The question before the Court
After two Kentucky counties revised their courthouse Ten Commandments displays three times to add other historical documents, could they claim the final version had a genuine, non-religious purpose?
The Court's answer
No — the Court ruled that the counties could not treat their third display's stated educational purpose as genuine, because the record showed their actual purpose remained religious. The Court applied the requirement that a government's secular purpose be sincere, not a sham, and found that the history of the two earlier displays — one bare, one accompanied by resolutions invoking Christ — showed the same underlying goal carried through to the third version, especially since the counties never repudiated their earlier religious resolutions.
The Court's answer therefore turned on context: reasonable observers are entitled to remember a government body's past actions, not evaluate each new display in a vacuum. Because the third display still emphasized the Commandments' religious content and made odd editorial choices that undercut its "educational" framing, the Court found no genuine change in purpose and upheld the injunction blocking it.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Local governments across the country display historical documents in courthouses and other public buildings, and many wanted certainty about how far they could go in including the Ten Commandments. This ruling means officials cannot simply repackage a religious display with secular-looking additions if the surrounding history reveals the change was a tactic, not a genuine shift in purpose.
What changes now
The preliminary injunction against the third display stays in place, meaning the counties still cannot display the exhibit as configured. The case does not end the underlying lawsuit -- it returns to the ordinary course of litigation over a permanent injunction -- and the Court made clear that counties could try again with a display that reflects a genuinely different, secular purpose, since it did not hold that any sacred text can never appear in a governmental display on law or history.
What this does not decide
The Court said it was not deciding that the counties' past actions permanently taint any future effort to address the same subject, and it did not hold that a religious text can never be constitutionally included in a display about law or history -- pointing to its own courtroom frieze depicting Moses among other lawgivers as an example that can pass muster.
Concurrences and dissents
Concurrence — Justice O'Connor
Justice O'Connor agreed the display was unconstitutional but wrote separately to emphasize why governmental neutrality toward religion has served the country well. She stressed that the Religion Clauses protect individual conscience, that courts do not 'count heads' before enforcing constitutional rights, and that line-drawing between favored and disfavored religions has no logical stopping point once begun.
Dissent — Justice Scalia
“God watches over little children, drunkards, and the United States of America.”Scalia's closing remark defending the nation's long tradition of public religious acknowledgment.
Justice Scalia argued the Court's premise that government must stay neutral between religion and non-religion is historically false, pointing to a long tradition of official invocations of God by presidents, Congress, and the Court itself. He argued the majority's new focus on an 'objective observer' and a 'predominant' secular purpose distorts the Lemon test even further, and that the displays here were constitutional because they acknowledged, rather than mandated, religious belief.
Dissent in part — Justice Kennedy
Justice Kennedy joined only Parts II and III of Justice Scalia's dissent, agreeing that the majority wrongly heightened the purpose test into a search for a 'predominant' secular purpose and that the specific displays here were constitutional. He did not join Part I's broader argument defending the government's power to favor monotheistic religious practice generally.
How the Court got there
The legal reasoning, step by step
- The Court applied the purpose prong of the Establishment Clause test from Lemon v. Kurtzman, which asks whether a government action has a genuine secular purpose rather than a hidden or predominant aim of advancing religion.
- The Court explained that this inquiry looks through the eyes of an objective, reasonably informed observer who is aware of a government body's history, text, and implementation of its actions -- not just its latest, most favorable explanation.
- Applying that lens, the Court traced the displays' evolution: the first version stood the Commandments alone with no secular framing, the second added documents chosen specifically for their religious references alongside a resolution invoking Christ, and neither had any plausible secular purpose.
- Because the third display was erected without repealing or repudiating the earlier religious resolutions, and even quoted more of the Commandments' religious language than before, the Court found that a reasonable observer could not conclude the counties' purpose had genuinely changed.
- The Court also noted the display's odd editorial choices -- including a national anthem but omitting the Fourteenth Amendment, and citing the Declaration of Independence as reflecting the Commandments' influence despite the two documents resting authority on different sources -- as further evidence that the stated educational purpose was not the real one.
- Concluding that the record amply supported the district court's finding of a predominantly religious purpose behind the third display, the Court held that purpose alone could be enough to render the display unconstitutional.
Doctrinal impact
Cases affected by this decision
Reaffirms Stone v. Graham (449 U.S. 39)
The Court relied on this 1980 case as its key benchmark for evaluating government displays of the Ten Commandments.