A Missed Opportunity to Abandon the Reasonable Observer Framework in Sacred Text Cases: McCreary County v. ACLU of Kentucky & Van Orden v. Perry

Abstract

This Article examines the reasonable observer framework in Establishment Clause cases, specifically in relation to the two most recent Ten Commandments decided by the Supreme Court. Part One describes the evolution of Establishment Clause jurisprudence from the three-prong Lemon test to Justice O'Connor's endorsement test and the various definitions of a reasonable observer as applied by federal courts. Part Two summarizes the history of Ten Commandment cases in the United States Supreme Court and examines, in detail, McCreary County v. ACLU and Van Orden v. Perry, the two recent sacred text decisions. Part Three analyzes and describes the inherent problems with the reasonable observer framework. Finally, Part IV recommends the elimination of the current reasonable observer framework and proposes the adoption of a new framework which presumes an improper purpose when the government displays a sacred text. This proposed presumption of unconstitutionality test may be rebutted if the government demonstrates that the sacred text is used either in a de minimis fashion or is sufficiently narrowly tailored such that a logical connection exists between the sacred text and the surrounding theme at the site of the display. Substituting this new framework in the adjudication of sacred text cases would eliminate the current problem of different results for identical displays.

Keywords: sacred text, ten commandments, Lemon, reasonable observer