However, if the facts establish that the sole or predominant purpose of a law is religious, the Court will strike down the law on this basis. Thus, in Epperson v. Arkansas, 393 U.S. 97 (1968), the Court invalidated an Arkansas law that made it unlawful for public school teachers to teach the theory of human evolution, the Court having concluded that under the facts presented, there was “no doubt” that the law was enacted to prevent the teaching of a theory thought to be contrary to the Book of Genesis. Id. at 107. See also Santa Fe Independent School Dist. v. Doe, 530 U.S. at 309 (drawing inference that the purpose of a school district’s policy regarding the selection of a student to deliver an invocation before home football games was to promote public prayer); Stone v. Graham, 449 U.S. 39, 41 (1980) (“pre-eminent” purpose of a law requiring the posting of the Ten Commandments in public classrooms was religious).
The Court’s most recent application of Lemon‘s secular purpose requirement occurred in McCreary County v. ACLU. At issue in that 2005 case was whether a government-mandated display of the Ten Commandments in county courthouses violated the Establishment Clause. The district court issued a preliminary injunction against the county after concluding that the county’s mandate violated the secular purpose prong of the Lemon test. A divided panel of the Sixth Circuit affirmed. A five-person majority of the Supreme Court also affirmed and in so doing specifically endorsed the continuing vitality of Lemon‘s secular purpose requirement. The Court’s majority recognized that while the purpose element had only been dispositive in four of its previous decisions, McCreary County v. ACLU, 545 U.S. at 859 & n.9, it concluded that the requirement of a secular purpose remained a key element of Establishment Clause jurisprudence:
The touchstone for our analysis is the principle that the “First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides. Manifesting a purpose to favor one faith over another, or adherence to religion generally, clashes with the “understanding, reached … after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens. …” Zelman v. Simmons-Harris, 536 U.S. 639, 718 (2002) (Breyer, J., dissenting). By showing a purpose to favor religion, the government “sends the … message to … nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members. …’” Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309-310 (2000).
545 U.S. at 860. Moreover, in affirming the district court’s entry of a preliminary injunction, the Court made it clear that the purpose element was not to be trivialized by permitting “any transparent claim to secularity” to trump the inquiry into the actual purpose of the challenged activity. Id. at 863-864. In addition, this inquiry was to be undertaken with reference to all probative evidence and in a spirit of common sense. Thus, the county’s effort to create a secular purpose after the issuance of the preliminary injunction could not, standing alone, erase the overall context of the county’s religiously motivated efforts to post the Ten Commandments in county courthouses.
Despite the McCreary County Court’s strong endorsement of the purpose element, it remains important to keep in mind that the four-person dissent vociferously disagreed with the majority’s position (id. at 885 (Scalia, J., dissenting)) and that, since the decision in McCreary County, Justice O’Connor, a member of the McCreary County majority, has retired and been replaced by Justice Samuel Alito, whose views on these matters may well be more in line with those of the dissent. Justice Souter, the author of the majority opinion has also retired. In other words, stay tuned for further developments.