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THOMAS, J., concurring

courthouse have successfully challenged as an Establishment Clause violation a sign at the courthouse alerting the public that the building was closed for Good Friday and containing a 4-inch-high crucifix. Granzeier v. Middleton, 955 F. Supp. 741, 743, and n. 2, 746-747 (ED Ky. 1997), aff'd on other grounds, 173 F. 3d 568, 576 (CA6 1999). Similarly, a park ranger has claimed that a cross erected to honor World War I veterans on a rock in the Mojave Desert Preserve violated the Establishment Clause, and won. See Buono v. Norton, 212 F. Supp. 2d 1202, 1204-1205, 1215–1217 (CD Cal. 2002). If a cross in the middle of a desert establishes a religion, then no religious observance is safe from challenge. Still other suits have charged that city seals containing religious symbols violate the Establishment Clause. See, e. g., Robinson v. Edmond, 68 F. 3d 1226 (CA10 1995); Murray v. Austin, 947 F. 2d 147 (CA5 1991); Friedman v. Board of Cty. Comm'rs of Bernalillo Cty., 781 F. 2d 777 (CA10 1985) (en banc). In every instance, the litigants are mere "[plassersby . . . free to ignore [such symbols or signs], or even to turn their backs, just as they are free to do when they disagree with any other form of government speech." County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 664 (1989) (KENNEDY, J., concurring in judgment in part and dissenting in part).

Second, in a seeming attempt to balance out its willingness to consider almost any acknowledgment of religion an establishment, in other cases Members of this Court have concluded that the term or symbol at issue has no religious meaning by virtue of its ubiquity or rote ceremonial invocation. See, e. g., id., at 630–631 (O'CONNOR, J., concurring in part and concurring in judgment); Lynch v. Donnelly, 465 U.S. 668, 716-717 (1984) (Brennan, J., dissenting). But words such as "God" have religious significance. For example, just last Term this Court had before it a challenge to the recitation of the Pledge of Allegiance, which includes the

THOMAS, J., concurring

phrase "one Nation under God." The declaration that our country is "one Nation under God"" necessarily "entail[s] an affirmation that God exists." Newdow, 542 U. S., at 48 (THOMAS, J., concurring in judgment). This phrase is thus anathema to those who reject God's existence and a validation of His existence to those who accept it. Telling either nonbelievers or believers that the words "under God" have no meaning contradicts what they know to be true. Moreover, repetition does not deprive religious words or symbols of their traditional meaning. Words like "God" are not vulgarities for which the shock value diminishes with each successive utterance.

Even when this Court's precedents recognize the religious meaning of symbols or words, that recognition fails to respect fully religious belief or disbelief. This Court looks for the meaning to an observer of indeterminate religious affiliation who knows all the facts and circumstances surrounding a challenged display. See, e. g., Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 780 (1995) (O'CONNOR, J., concurring in part and concurring in judgment) (presuming that a reasonable observer is "aware of the history and context of the community and forum in which the religious display appears"). In looking to the view of this unusually informed observer, this Court inquires whether the sign or display "sends the ancillary 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 of the political community."" Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 309-310 (2000) (quoting Lynch, supra, at 688 (O'CONNOR, J., concurring)).

This analysis is not fully satisfying to either nonadherents or adherents. For the nonadherent, who may well be more sensitive than the hypothetical "reasonable observer," or who may not know all the facts, this test fails to capture completely the honest and deeply felt offense he takes from

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the government conduct. For the adherent, this analysis takes no account of the message sent by removal of the sign or display, which may well appear to him to be an act hostile to his religious faith. The Court's foray into religious meaning either gives insufficient weight to the views of nonadherents and adherents alike, or it provides no principled way to choose between those views. In sum, this Court's effort to assess religious meaning is fraught with futility.

Finally, the very "flexibility" of this Court's Establishment Clause precedent leaves it incapable of consistent application. See Edwards v. Aguillard, 482 U. S. 578, 640 (1987) (SCALIA, J., dissenting) (criticizing the Lemon test's "flexibility" as "the absence of any principled rationale” (internal quotation marks omitted)). The inconsistency between the decisions the Court reaches today in this case and in McCreary County v. American Civil Liberties Union of Ky., post, p. 844, only compounds the confusion.

The unintelligibility of this Court's precedent raises the further concern that, either in appearance or in fact, adjudication of Establishment Clause challenges turns on judicial predilections. See, e. g., Harris v. Zion, 927 F. 2d 1401, 1425 (CA7 1991) (Easterbrook, J., dissenting) ("Line drawing in this area will be erratic and heavily influenced by the personal views of the judges"); post, at 700 (BREYER, J., concurring in judgment) ("I see no test-related substitute for the exercise of legal judgment"). The outcome of constitutional cases ought to rest on firmer grounds than the personal preferences of judges.

Much, if not all, of this would be avoided if the Court would return to the views of the Framers and adopt coercion as the touchstone for our Establishment Clause inquiry. Every acknowledgment of religion would not give rise to an Establishment Clause claim. Courts would not act as theological commissions, judging the meaning of religious matters. Most important, our precedent would be capable of consistent and coherent application. While the Court cor

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rectly rejects the challenge to the Ten Commandments monument on the Texas Capitol grounds, a more fundamental rethinking of our Establishment Clause jurisprudence remains in order.

JUSTICE BREYER, concurring in the judgment.

In School Dist. of Abington Township v. Schempp, 374 U. S. 203 (1963), Justice Goldberg, joined by Justice Harlan, wrote, in respect to the First Amendment's Religion Clauses, that there is "no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible." Id., at 306 (concurring opinion). One must refer instead to the basic purposes of those Clauses. They seek to "assure the fullest possible scope of religious liberty and tolerance for all." Id., at 305. They seek to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike. Zelman v. Simmons-Harris, 536 U. S. 639, 717-729 (2002) (BREYER, J., dissenting). They seek to maintain that "separation of church and state" that has long been critical to the "peaceful dominion that religion exercises in [this] country," where the "spirit of religion" and the "spirit of freedom" are productively "united," "reign[ing] together" but in separate spheres "on the same soil." A. de Tocqueville, Democracy in America 282–283 (1835) (H. Mansfield & D. Winthrop transls. and eds. 2000). They seek to further the basic principles set forth today by JUSTICE O'CONNOR in her concurring opinion in McCreary County v. American Civil Liberties Union of Ky., post, at 881.

The Court has made clear, as Justices Goldberg and Harlan noted, that the realization of these goals means that government must "neither engage in nor compel religious practices," that it must "effect no favoritism among sects or between religion and nonreligion," and that it must "work deterrence of no religious belief." Schempp, supra, at 305 (concurring opinion); see also Lee v. Weisman, 505 U. S. 577,

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587 (1992); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15-16 (1947). The government must avoid excessive interference with, or promotion of, religion. See generally County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 593–594 (1989); Zelman, supra, at 723-725 (BREYER, J., dissenting). But the Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious. See, e. g., Marsh v. Chambers, 463 U. S. 783 (1983). Such absolutism is not only inconsistent with our national traditions, see, e. g., Lemon v. Kurtzman, 403 U. S. 602, 614 (1971); Lynch v. Donnelly, 465 U. S. 668, 672-678 (1984), but would also tend to promote the kind of social conflict the Establishment Clause seeks to avoid.

Thus, as Justices Goldberg and Harlan pointed out, the Court has found no single mechanical formula that can accurately draw the constitutional line in every case. See Schempp, 374 U. S., at 306 (concurring opinion). Where the Establishment Clause is at issue, tests designed to measure "neutrality” alone are insufficient, both because it is sometimes difficult to determine when a legal rule is "neutral," and because

"untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious." Ibid.

Neither can this Court's other tests readily explain the Establishment Clause's tolerance, for example, of the prayers that open legislative meetings, see Marsh, supra; certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving. See,

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