Motive matters, but only if you're up front about it.
Hang a stand-alone copy of the Ten Commandments in a public building while telling the world you're doing it in furtherance of your religious beliefs, and you've established a motive you can't hide no matter how many other "historic" documents you later add to the display or how many times you try to take back your words.
That's why displays featuring the Ten Commandments in the courthouses of McCreary and Pulaski counties keep running afoul of the law, even though similar displays in other Kentucky courthouses have been upheld as constitutional.
McCreary and Pulaski officials didn't try to hide their religious intent when they hung copies of the Ten Commandments in their courthouses several years ago. It was only after the U.S. Supreme Court ruled the displays unconstitutional in 2005 that officials of the two counties surrounded the copies of the Decalogue with other documents and passed resolutions declaring the displays to be secular in nature.
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But a three-judge panel of the 6th Circuit U.S. Court of Appeals said in a 2-1 ruling last week the McCreary and Pulaski displays remain unconstitutional despite those attempts "to minimize the residue of religious purpose" that initially motivated county officials.
However, previous 6th Circuit appellate rulings upheld the constitutionality of similar displays in Mercer and Grayson counties, where officials were wise enough to be more circumspect about displaying their motives — in advance, at least.
But the revival-like celebration that accompanied the re-hanging of the Ten Commandments in the Grayson County Courthouse earlier this year, including county magistrates referring to getting "Christianity back," made it clear that the real motivation there was the same as in McCreary and Pulaski counties.
In reality, a desire to promote a certain religious philosophy motivates all attempts to hang the Ten Commandments, with or without other "historic" documents, in public buildings. And courts that only recognize such a motive exists when it's displayed in advance aren't doing the Constitution's guarantee of religious freedom justice.