VAN ORDEN v. PERRY, in his official capacity as GOVERNOR OF TEXAS and CHAIRMAN, STATE PRESERVATION BOARD, et al.

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Syllabus
VAN ORDEN v. PERRY, in his official capacity as
GOVERNOR OF TEXAS and CHAIRMAN, STATE
PRESERVATION BOARD, et al.
certiorari to the united states court of appeals for
the fifth circuit
No. 03–1500. Argued March 2, 2005—Decided June 27, 2005
Among the 21 historical markers and 17 monuments surrounding the
Texas State Capitol is a 6-foot-high monolith inscribed with the Ten
Commandments. The legislative record illustrates that, after accepting
the monument from the Fraternal Order of Eagles—a national social,
civic, and patriotic organization—the State selected a site for it based on
the recommendation of the state organization that maintains the capitol
grounds. Petitioner, an Austin resident who encounters the monument
during his frequent visits to those grounds, brought this 42 U. S. C.
§ 1983 suit seeking a declaration that the monument’s placement violates
the First Amendment’s Establishment Clause and an injunction requir
ing its removal. Holding that the monument did not contravene the
Clause, the District Court found that the State had a valid secular pur
pose in recognizing and commending the Eagles for their efforts to re
duce juvenile delinquency, and that a reasonable observer, mindful of
history, purpose, and context, would not conclude that this passive mon
ument conveyed the message that the State endorsed religion. The
Fifth Circuit affirmed.
Held: The judgment is affirmed.
351 F. 3d 173, affirmed.
The Chief Justice, joined by Justice Scalia, Justice Kennedy,
and Justice Thomas, concluded that the Establishment Clause allows
the display of a monument inscribed with the Ten Commandments on
the Texas State Capitol grounds. Reconciling the strong role played
by religion and religious traditions throughout our Nation’s history, see
School Dist. of Abington Township v. Schempp, 374 U. S. 203, 212–213,
with the principle that governmental intervention in religious matters
can itself endanger religious freedom requires that the Court neither
abdicate its responsibility to maintain a division between church and
state nor evince a hostility to religion, e. g., Zorach v. Clauson, 343 U. S.
306, 313–314. While the Court has sometimes pointed to Lemon v.
Kurtzman, 403 U. S. 602, for the governing test, Lemon is not useful in
dealing with the sort of passive monument that Texas has erected on

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Syllabus
its capitol grounds. Instead, the analysis should be driven by both the
monument’s nature and the Nation’s history. From at least 1789, there
has been an unbroken history of official acknowledgment by all three
branches of government of religion’s role in American life. Lynch v.
Donnelly, 465 U. S. 668, 674. Texas’ display of the Commandments on
government property is typical of such acknowledgments. Represen
tations of the Commandments appear throughout this Court and its
grounds, as well as the Nation’s Capital. Moreover, the Court’s opin
ions, like its building, have recognized the role the Decalogue plays in
America’s heritage. See, e. g., McGowan v. Maryland, 366 U. S. 420,
442, 462. While the Commandments are religious, they have an undeni
able historical meaning. Simply having religious content or promoting
a message consistent with a religious doctrine does not run afoul of the
Establishment Clause. See, e. g., Lynch v. Donnelly, supra, at 680, 687.
There are, of course, limits to the government’s display of religious mes
sages or symbols. For example, this Court held unconstitutional a Ken
tucky statute requiring the posting of the Ten Commandments in every
public schoolroom. Stone v. Graham, 449 U. S. 39, 41–42. However,
neither Stone itself nor subsequent opinions have indicated that Stone’s
holding would extend beyond the context of public schools to a legis
lative chamber, see Marsh v. Chambers, 463 U. S. 783, or to capitol
grounds. Texas’ placement of the Commandments monument on its
capitol grounds is a far more passive use of those texts than was the
case in Stone, where the text confronted elementary school students
every day. Indeed, petitioner here apparently walked by the monu
ment for years before bringing this suit. Schempp, supra, and Lee v.
Weisman, 505 U. S. 577, distinguished. Texas has treated its capitol
grounds monuments as representing several strands in the State’s politi
cal and legal history. The inclusion of the Commandments monument
in this group has a dual significance, partaking of both religion and
government, that cannot be said to violate the Establishment Clause.
Pp. 683–692.
Justice Breyer concluded that this is a difficult borderline case
where none of the Court’s various tests for evaluating Establishment
Clause questions can substitute for the exercise of legal judgment. See,
e. g., School Dist. of Abington Township v. Schempp, 374 U. S. 203, 305
(Goldberg, J., concurring). That judgment is not a personal judgment.
Rather, as in all constitutional cases, it must reflect and remain faith
ful to the underlying purposes of the First Amendment’s Religion
Clauses—to assure the fullest possible scope of religious liberty and
tolerance for all, to avoid the religious divisiveness that promotes social
conflict, and to maintain the separation of church and state. No exact
formula can dictate a resolution to fact-intensive cases such as this.

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Syllabus
Despite the Commandments’ religious message, an inquiry into the con
text in which the text of the Commandments is used demonstrates that
the Commandments also convey a secular moral message about proper
standards of social conduct and a message about the historic relation
between those standards and the law. The circumstances surrounding
the monument’s placement on the capitol grounds and its physical set
ting provide a strong, but not conclusive, indication that the Command
ments’ text as used on this monument conveys a predominantly secular
message. The determinative factor here, however, is that 40 years
passed in which the monument’s presence, legally speaking, went un
challenged (until the single legal objection raised by petitioner). Those
40 years suggest more strongly than can any set of formulaic tests that
few individuals, whatever their belief systems, are likely to have under
stood the monument as amounting, in any significantly detrimental way,
to a government effort to establish religion. See ibid. The public vis
iting the capitol grounds is more likely to have considered the religious
aspect of the tablets’ message as part of what is a broader moral and
historical message reflective of a cultural heritage. For these reasons,
the Texas display falls on the permissible side of the constitutional
line. Pp. 698–705.
Rehnquist, C. J., announced the judgment of the Court and delivered
an opinion, in which Scalia, Kennedy, and Thomas, JJ., joined. Scalia,
J., post, p. 692, and Thomas, J., post, p. 692, filed concurring opinions.
Breyer, J., filed an opinion concurring in the judgment, post, p. 698.
Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined, post,
p. 707. O’Connor, J., filed a dissenting opinion, post, p. 737. Souter, J.,
filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined,
post, p. 737.
Erwin Chemer insky argued the cause for petitioner.
With him on the briefs were Mark Rosenbaum and Paul
Hoffman.
Greg Abbott, Attorney General of Texas, argued the cause
for respondents. With him on the brief were Barry R.
McBee, First Assistant Attorney General, Edward D. Bur
bach and Don R. Willett, Deputy Attorneys General, R. Ted
Cruz, Solicitor General, Joel L. Thollander and Amy Warr,
Assistant Solicitors General, and Paul Michael Winget-
Hernandez, Assistant Attorney General.

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680 VAN ORDEN v. PERRY
Counsel
Acting Solicitor General Clement argued the cause for
the United States as amicus curiae in support of respond
ents. With him on the brief were Assistant Attorney Gen
eral Keisler, Deputy Assistant Attorney General Katsas,
Patricia A. Millett, Robert M. Loeb, and Lowell V. Stur
gill, Jr.*
*Briefs of amici curiae urging reversal were filed for American Atheists
by Robert J. Bruno; for the American Humanist Association et al. by Eliz
abeth L. Hileman; for the American Jewish Congress et al. by Marc D.
Stern and Jeffrey Sinensky; for Americans United for Separation of
Church and State et al. by Ian Heath Gershengorn, William M. Hohengar
ten, Ayesha Khan, Richard B. Katskee, Elliot M. Mincberg, and Judith E.
Schaeffer; for the Anti-Defamation League et al. by Jeffrey R. Babbin,
Aaron S. Bayer, Kenneth D. Heath, Frederick M. Lawrence, Daniel S.
Alter, and Steven M. Freeman; for the Baptist Joint Committee et al. by
Douglas Laycock and K. Hollyn Hollman; for the Council for Secular
Humanism by Edward Tabash; for the Freedom from Religion Foundation
by James A. Friedman and James D. Peterson; and for the Hindu Ameri
can Foundation et al. by Henry C. Dinger, Jeffrey A. Simes, Keith A.
Zullow, Aseem V. Mehta, and Jessica Jamieson.
Briefs of amici curiae urging affirmance were filed for the State of
Indiana et al. by Steve Carter, Attorney General of Indiana, Thomas M.
Fisher, and Rebecca Walker, Deputy Attorney General, and by the Attor
neys General for their respective States as follows: Troy King of Alabama,
Terry Goddard of Arizona, Mike Beebe of Arkansas, Charles J. Crist, Jr.,
of Florida, Lawrence G. Wasden of Idaho, Phill Kline of Kansas, Gregory
D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, Jim Hood of
Mississippi, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, Gerald
J. Pappert of Pennsylvania, Henry McMaster of South Carolina, Lawrence
E. Long of South Dakota, Mark L. Shurtleff of Utah, Jerry W. Kilgore of
Virginia, and Patrick J. Crank of Wyoming; for the American Center for
Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Francis J. Manion,
and Walter M. Weber; for the American Family Association Center for
Law & Policy by Stephen M. Crampton, Brian Fahling, and Michael J.
DePrimo; for the Becket Fund for Religious Liberty by Anthony R. Pi
carello, Jr.; for the Claremont Institute Center for Constitutional Juris
prudence by John C. Eastman and Edwin Meese III; for the Eagle Forum
Education & Legal Defense Fund by Douglas G. Smith and Phyllis
Schlafly; for the Ethics and Public Policy Center by Mark A. Perry; for
the Foundation for Moral Law, Inc., by Benjamin D. DuPre´ and Gregory
M. Jones; for the Fraternal Order of Eagles by Kelly Shackelford and

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Opinion of Rehnquist, C. J.
Chief Justice Rehnquist announced the judgment of
the Court and delivered an opinion, in which Justice
Scalia, Justice Kennedy, and Justice Thomas join.
The question here is whether the Establishment Clause
of the First Amendment allows the display of a monument
inscribed with the Ten Commandments on the Texas State
Capitol grounds. We hold that it does.
The 22 acres surrounding the Texas State Capitol contain
17 monuments and 21 historical markers commemorating the
“people, ideals, and events that compose Texan identity.”
Tex. H. Con. Res. 38, 77th Leg., Reg. Sess. (2001).1 The
monolith challenged here stands 6-feet high and 3-feet wide.
It is located to the north of the Capitol building, between
the Capitol and the Supreme Court building. Its primary
content is the text of the Ten Commandments. An eagle
grasping the American flag, an eye inside of a pyramid, and
two small tablets with what appears to be an ancient script
are carved above the text of the Ten Commandments.
Below the text are two Stars of David and the superimposed
Greek letters Chi and Rho, which represent Christ. The
bottom of the monument bears the inscription “PRE-
George A. Miller; for the National Jewish Commission on Law and Public
Affairs by Nathan Lewin, Alyza D. Lewin, Dennis Rapps, David Zwiebel,
and Nathan J. Diament; for the Pacific Justice Institute by Peter D. Lepis
copo; for the Rutherford Institute by John W. Whitehead; and for Janet
Napolitano et al. by Len L. Munsil.
Briefs of amici curiae were filed for the Atheist Law Center et al. by
Pamela L. Sumners and Larry Darby; for the Chester County Historic
Preservation Network by Alfred W. Putnam, Jr.; for Faith and Action
et al. by Bernard P. Reese, Jr.; for Focus on the Family et al. by Benjamin
W. Bull and Jordan W. Lorence; for the Thomas More Law Center by
Edward L. White III; and for Wallbuilders, Inc., by Barry C. Hodge.
1 The monuments are: Heroes of the Alamo, Hood’s Brigade, Confederate
Soldiers, Volunteer Fireman, Terry’s Texas Rangers, Texas Cowboy,
Spanish-American War, Texas National Guard, Ten Commandments, Trib
ute to Texas School Children, Texas Pioneer Woman, The Boy Scouts’
Statue of Liberty Replica, Pearl Harbor Veterans, Korean War Veterans,
Soldiers of World War I, Disabled Veterans, and Texas Peace Officers.

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Opinion of Rehnquist, C. J.
SENTED TO THE PEOPLE AND YOUTH OF TEXAS BY
THE FRATERNAL ORDER OF EAGLES OF TEXAS
1961.” App. to Pet. for Cert. 21.
The legislative record surrounding the State’s acceptance
of the monument from the Eagles—a national social, civic,
and patriotic organization—is limited to legislative journal
entries. After the monument was accepted, the State se
lected a site for the monument based on the recommendation
of the state organization responsible for maintaining the
Capitol grounds. The Eagles paid the cost of erecting the
monument, the dedication of which was presided over by two
state legislators.
Petitioner Thomas Van Orden is a native Texan and a resi
dent of Austin. At one time he was a licensed lawyer, hav
ing graduated from Southern Methodist Law School. Van
Orden testified that, since 1995, he has encountered the Ten
Commandments monument during his frequent visits to the
Capitol grounds. His visits are typically for the purpose of
using the law library in the Supreme Court building, which
is located just northwest of the Capitol building.
Forty years after the monument’s erection and six years
after Van Orden began to encounter the monument fre
quently, he sued numerous state officials in their official ca
pacities under Rev. Stat. § 1979, 42 U. S. C. § 1983, seeking
both a declaration that the monument’s placement violates
the Establishment Clause and an injunction requiring its re
moval. After a bench trial, the District Court held that the
monument did not contravene the Establishment Clause. It
found that the State had a valid secular purpose in recogniz
ing and commending the Eagles for their efforts to reduce
juvenile delinquency. The District Court also determined
that a reasonable observer, mindful of the history, purpose,
and context, would not conclude that this passive monument
conveyed the message that the State was seeking to en
dorse religion. The Court of Appeals affirmed the District

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Opinion of Rehnquist, C. J.
Court’s holdings with respect to the monument’s purpose and
effect. 351 F. 3d 173 (CA5 2003). We granted certiorari,
543 U. S. 923 (2004), and now affirm.
Our cases, Januslike, point in two directions in applying
the Establishment Clause. One face looks toward the
strong role played by religion and religious traditions
throughout our Nation’s history. As we observed in School
Dist. of Abington Township v. Schempp, 374 U. S. 203 (1963):
“It is true that religion has been closely identified
with our history and government. . . . The fact that the
Founding Fathers believed devotedly that there was a
God and that the unalienable rights of man were rooted
in Him is clearly evidenced in their writings, from the
Mayflower Compact to the Constitution itself. . . . It can
be truly said, therefore, that today, as in the beginning,
our national life reflects a religious people who, in the
words of Madison, are ‘earnestly praying, as . . . in duty
bound, that the Supreme Lawgiver of the Universe . . .
guide them into every measure which may be worthy of
his [blessing . . . .]’ ” Id., at 212–213.2
The other face looks toward the principle that governmental
intervention in religious matters can itself endanger reli
gious freedom.
This case, like all Establishment Clause challenges, pre
sents us with the difficulty of respecting both faces. Our
institutions presuppose a Supreme Being, yet these institu
tions must not press religious observances upon their citi
zens. One face looks to the past in acknowledgment of our
Nation’s heritage, while the other looks to the present in
demanding a separation between church and state. Recon
ciling these two faces requires that we neither abdicate our
2 See also Engel v. Vitale, 370 U. S. 421, 434 (1962) (“The history of man
is inseparable from the history of religion”); Zorach v. Clauson, 343 U. S.
306, 313 (1952) (“We are a religious people whose institutions presuppose
a Supreme Being”).

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responsibility to maintain a division between church and
state nor evince a hostility to religion by disabling the
government from in some ways recognizing our religious
heritage:
“When the state encourages religious instruction or co
operates with religious authorities by adjusting the
schedule of public events to sectarian needs, it follows
the best of our traditions. For it then respects the reli
gious nature of our people and accommodates the public
service to their spiritual needs. To hold that it may not
would be to find in the Constitution a requirement that
the government show a callous indifference to religious
groups. . . . [W]e find no constitutional requirement
which makes it necessary for government to be hostile
to religion and to throw its weight against efforts to
widen the effective scope of religious influence.” Zor
ach v. Clauson, 343 U. S. 306, 313–314 (1952).
See also Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U. S. 819, 845–846 (1995) (warning against the “risk [of]
fostering a pervasive bias or hostility to religion, which could
undermine the very neutrality the Establishment Clause
requires”).3
3 Despite Justice Stevens’ recitation of occasional language to the con
trary, post, at 710–711, and n. 7 (dissenting opinion), we have not, and do
not, adhere to the principle that the Establishment Clause bars any and
all governmental preference for religion over irreligion. See, e. g., Cutter
v. Wilkinson, 544 U. S. 709 (2005); Corporation of Presiding Bishop of
Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327 (1987);
Lynch v. Donnelly, 465 U. S. 668 (1984); Marsh v. Chambers, 463 U. S. 783
(1983); Walz v. Tax Comm’n of City of New York, 397 U. S. 664 (1970).
Even the dissenters do not claim that the First Amendment’s Religion
Clauses forbid all governmental acknowledgments, preferences, or accom
modations of religion. See post, at 711 (opinion of Stevens, J.) (recogniz
ing that the Establishment Clause permits some “recognition” or “ac
knowledgment” of religion); post, at 740–741, and n. 4 (opinion of Souter,
J.) (discussing a number of permissible displays with religious content).

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These two faces are evident in representative cases both
upholding 4 and invalidating 5 laws under the Establishment
Clause. Over the last 25 years, we have sometimes pointed
4 Zelman v. Simmons-Harris, 536 U. S. 639 (2002) (upholding school
voucher program); Good News Club v. Milford Central School, 533 U. S.
98 (2001) (holding that allowing religious school groups to use school facili
ties does not violate the Establishment Clause); Agostini v. Felton, 521
U. S. 203 (1997) (approving a program that provided public employees to
teach remedial classes at religious and other private schools), overruling
Aguilar v. Felton, 473 U. S. 402 (1985) (barring public school teachers from
going to parochial schools to provide remedial education to disadvantaged
children), and School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985)
(striking down a program that provided classes to religious school stu
dents at public expense in classrooms leased from religious schools); Ro
senberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) (hold
ing that the Establishment Clause does not bar disbursement of funds
from student activity fees to religious organizations); Zobrest v. Catalina
Foothills School Dist., 509 U. S. 1 (1993) (allowing a public school district
to provide a sign-language interpreter to a deaf student at a Catholic high
school as part of a federal program for the disabled); Lynch v. Donnelly,
supra (upholding a Christmas display including a cre` che); Marsh v. Cham
bers, supra (upholding legislative prayer); Mueller v. Allen, 463 U. S. 388
(1983) (upholding tax deduction for certain expenses incurred in sending
one’s child to a religious school).
5 Santa Fe Independent School Dist. v. Doe, 530 U. S. 290 (2000) (holding
unconstitutional student-initiated and student-led prayer at school football
games); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512
U. S. 687 (1994) (invalidating a state law that created a new school district
for a single religious community); Lee v. Weisman, 505 U. S. 577 (1992)
(prohibiting officially sponsored graduation prayers); County of Allegheny
v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S.
573 (1989) (holding the display of a cre` che in a courthouse unconstitutional
but allowing the display of a menorah outside a county building); Texas
Monthly, Inc. v. Bullock, 489 U. S. 1 (1989) (plurality opinion) (invalidating
a sales tax exemption for all religious periodicals); Edwards v. Aguillard,
482 U. S. 578 (1987) (invalidating a law mandating the teaching of creation
ism if evolution was taught); Estate of Thornton v. Caldor, Inc., 472 U. S.
703 (1985) (invalidating state law that gave employees an absolute right
not to work on their Sabbath); Wallace v. Jaffree, 472 U. S. 38 (1985) (inval
idating law mandating a daily minute of silence for meditation or volun
tary prayer).

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to Lemon v. Kurtzman, 403 U. S. 602 (1971), as providing the
governing test in Establishment Clause challenges.6 Com
pare Wallace v. Jaffree, 472 U. S. 38 (1985) (applying Lemon),
with Marsh v. Chambers, 463 U. S. 783 (1983) (not applying
Lemon). Yet, just two years after Lemon was decided, we
noted that the factors identified in Lemon serve as “no more
than helpful signposts.” Hunt v. McNair, 413 U. S. 734, 741
(1973). Many of our recent cases simply have not applied
the Lemon test. See, e. g., Zelman v. Simmons-Harris, 536
U. S. 639 (2002); Good News Club v. Milford Central School,
533 U. S. 98 (2001). Others have applied it only after con
cluding that the challenged practice was invalid under a dif
ferent Establishment Clause test.
Whatever may be the fate of the Lemon test in the larger
scheme of Establishment Clause jurisprudence, we think it
not useful in dealing with the sort of passive monument that
Texas has erected on its Capitol grounds. Instead, our anal
ysis is driven both by the nature of the monument and by
our Nation’s history.
As we explained in Lynch v. Donnelly, 465 U. S. 668 (1984):
“There is an unbroken history of official acknowledgment by
all three branches of government of the role of religion in
American life from at least 1789.” Id., at 674. For exam
ple, both Houses passed resolutions in 1789 asking President
George Washington to issue a Thanksgiving Day Proclama
tion to “recommend to the people of the United States a day
of public thanksgiving and prayer, to be observed, by ac
knowledging, with grateful hearts, the many and signal fa
vors of Almighty God.” 1 Annals of Cong. 90, 914 (internal
quotation marks omitted). President Washington’s procla
6 Lemon sets out a three-prong test: “First, the statute must have a
secular legislative purpose; second, its principal or primary effect must be
one that neither advances nor inhibits religion; finally, the statute must
not foster ‘an excessive government entanglement with religion.’ ” 403
U. S., at 612–613 (citation omitted).

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mation directly attributed to the Supreme Being the founda
tions and successes of our young Nation:
“Now, therefore, I do recommend and assign Thurs
day, the 26th day of November next, to be devoted by
the people of these States to the service of that great
and glorious Being who is the beneficent author of all
the good that was, that is, or that will be; that we may
then all unite in rendering unto Him our sincere and
humble thanks for His kind care and protection of the
people of this country previous to their becoming a na
tion; for the signal and manifold mercies and the favor
able interpositions of His providence in the course and
conclusion of the late war; for the great degree of tran
quillity, union, and plenty which we have since enjoyed;
for the peaceable and rational manner in which we have
been enabled to establish constitutions of government
for our safety and happiness, and particularly the na
tional one now lately instituted; for the civil and reli
gious liberty with which we are blessed, and the means
we have of acquiring and diffusing useful knowledge;
and, in general, for all the great and various favors
which He has been pleased to confer upon us.” 1 J.
Richardson, Messages and Papers of the Presidents,
1789–1897, p. 64 (1899).
Recognition of the role of God in our Nation’s heritage has
also been reflected in our decisions. We have acknowledged,
for example, that “religion has been closely identified with
our history and government,” School Dist. of Abington
Township v. Schempp, 374 U. S., at 212, and that “[t]he his
tory of man is inseparable from the history of religion,”
Engel v. Vitale, 370 U. S. 421, 434 (1962).7 This recognition
7 See also Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 26
(2004) (Rehnquist, C. J., concurring in judgment) (“Examples of patriotic
invocations of God and official acknowledgments of religion’s role in our
Nation’s history abound”); id., at 35–36 (O’Connor, J., concurring in judg

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has led us to hold that the Establishment Clause permits a
state legislature to open its daily sessions with a prayer by
a chaplain paid by the State. Marsh v. Chambers, 463 U. S.,
at 792.8 Such a practice, we thought, was “deeply embedded
in the history and tradition of this country.” Id., at 786.
As we observed there, “it would be incongruous to interpret
[the Establishment Clause] as imposing more stringent First
Amendment limits on the states than the draftsmen imposed
on the Federal Government.” Id., at 790–791. With simi
lar reasoning, we have upheld laws, which originated from
one of the Ten Commandments, that prohibited the sale of
merchandise on Sunday. McGowan v. Maryland, 366 U. S.
420, 431–440 (1961); see id., at 470–488 (separate opinion of
Frankfurter, J.).
In this case we are faced with a display of the Ten Com
mandments on government property outside the Texas State
Capitol. Such acknowledgments of the role played by the
Ten Commandments in our Nation’s heritage are common
throughout America. We need only look within our own
Courtroom. Since 1935, Moses has stood, holding two tab
lets that reveal portions of the Ten Commandments written
in Hebrew, among other lawgivers in the south frieze. Rep
resentations of the Ten Commandments adorn the metal
gates lining the north and south sides of the Courtroom as
well as the doors leading into the Courtroom. Moses also
sits on the exterior east facade of the building holding the
Ten Commandments tablets.
ment) (“It is unsurprising that a Nation founded by religious refugees and
dedicated to religious freedom should find references to divinity in its
symbols, songs, mottoes, and oaths”); Lynch v. Donnelly, 465 U. S., at 675
(“Our history is replete with official references to the value and invocation
of Divine guidance”).
8 Indeed, we rejected the claim that an Establishment Clause violation
was presented because the prayers had once been offered in the Judeo-
Christian tradition: In Marsh, the prayers were often explicitly Christian,
but the chaplain removed all references to Christ the year after the suit
was filed. 463 U. S., at 793–794, and n. 14.

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Similar acknowledgments can be seen throughout a visi
tor’s tour of our Nation’s Capital. For example, a large
statue of Moses holding the Ten Commandments, alongside
a statue of the Apostle Paul, has overlooked the rotunda of
the Library of Congress’ Jefferson Building since 1897. And
the Jefferson Building’s Great Reading Room contains a
sculpture of a woman beside the Ten Commandments with
a quote above her from the Old Testament (Micah 6:8). A
medallion with two tablets depicting the Ten Command
ments decorates the floor of the National Archives. Inside
the Department of Justice, a statue entitled “The Spirit of
Law” has two tablets representing the Ten Commandments
lying at its feet. In front of the Ronald Reagan Building
is another sculpture that includes a depiction of the Ten
Commandments. So too a 24-foot-tall sculpture, depicting,
among other things, the Ten Commandments and a cross,
stands outside the federal courthouse that houses both the
Court of Appeals and the District Court for the District of
Columbia. Moses is also prominently featured in the Cham
ber of the United States House of Representatives.9
Our opinions, like our building, have recognized the role
the Decalogue plays in America’s heritage. See, e. g., McGo
wan v. Maryland, 366 U. S., at 442; id., at 462 (separate opin
9 Other examples of monuments and buildings reflecting the prominent
role of religion abound. For example, the Washington, Jefferson, and Lin
coln Memorials all contain explicit invocations of God’s importance. The
apex of the Washington Monument is inscribed “Laus Deo,” which is trans
lated to mean “Praise be to God,” and multiple memorial stones in the
monument contain Biblical citations. The Jefferson Memorial is engraved
with three quotes from Jefferson that make God a central theme. In
scribed on the wall of the Lincoln Memorial are two of Lincoln’s most
famous speeches, the Gettysburg Address and his Second Inaugural Ad
dress. Both inscriptions include those speeches’ extensive acknowledg
ments of God. The first federal monument, which was accepted by the
United States in honor of sailors who died in Tripoli, noted the dates of
the fallen sailors as “the year of our Lord, 1804, and in the 28 year of the
independence of the United States.”

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ion of Frankfurter, J.).10 The Executive and Legislative
Branches have also acknowledged the historical role of the
Ten Commandments. See, e. g., Public Papers of the Presi
dents, Harry S. Truman, 1950, p. 157 (1965); S. Con. Res. 13,
105th Cong., 1st Sess. (1997); H. Con. Res. 31, 105th Cong.,
1st Sess. (1997). These displays and recognitions of the Ten
Commandments bespeak the rich American tradition of reli
gious acknowledgments.
Of course, the Ten Commandments are religious—they
were so viewed at their inception and so remain. The monu
ment, therefore, has religious significance. According to
Judeo-Christian belief, the Ten Commandments were given
to Moses by God on Mt. Sinai. But Moses was a lawgiver
as well as a religious leader. And the Ten Commandments
have an undeniable historical meaning, as the foregoing ex
amples demonstrate. Simply having religious content or
promoting a message consistent with a religious doctrine
does not run afoul of the Establishment Clause. See Lynch
v. Donnelly, 465 U. S., at 680, 687; Marsh v. Chambers, 463
U. S., at 792; McGowan v. Maryland, supra, at 437–440; Walz
v. Tax Comm’n of City of New York, 397 U. S. 664, 676–678
(1970).
There are, of course, limits to the display of religious mes
sages or symbols. For example, we held unconstitutional a
Kentucky statute requiring the posting of the Ten Com
mandments in every public schoolroom. Stone v. Graham,
449 U. S. 39 (1980) (per curiam). In the classroom context,
we found that the Kentucky statute had an improper and
plainly religious purpose. Id., at 41. As evidenced by
Stone’s almost exclusive reliance upon two of our school
10 See also Edwards v. Aguillard, 482 U. S., at 593–594; Lynch v. Don
nelly, 465 U. S., at 677–678; id., at 691 (O’Connor, J., concurring); County
of Allegheny v. American Civil Liberties Union, Greater Pittsburgh
Chapter, 492 U. S., at 652–653 (Stevens, J., concurring in part and dis
senting in part); Stone v. Graham, 449 U. S. 39, 45 (1980) (Rehnquist,
J., dissenting).

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prayer cases, id., at 41–42 (citing School Dist. of Abington
Township v. Schempp, 374 U. S. 203 (1963), and Engel v. Vi
tale, 370 U. S. 421 (1962)), it stands as an example of the
fact that we have “been particularly vigilant in monitoring
compliance with the Establishment Clause in elementary and
secondary schools,” Edwards v. Aguillard, 482 U. S. 578,
583–584 (1987). Compare Lee v. Weisman, 505 U. S. 577,
596–597 (1992) (holding unconstitutional a prayer at a sec
ondary school graduation), with Marsh v. Chambers, supra
(upholding a prayer in the state legislature). Indeed, Ed
wards v. Aguillard recognized that Stone—along with
Schempp and Engel—was a consequence of the “particular
concerns that arise in the context of public elementary and
secondary schools.” 482 U. S., at 584–585. Neither Stone
itself nor subsequent opinions have indicated that Stone’s
holding would extend to a legislative chamber, see Marsh v.
Chambers, supra, or to capitol grounds.11
The placement of the Ten Commandments monument on
the Texas State Capitol grounds is a far more passive use of
those texts than was the case in Stone, where the text con
fronted elementary school students every day. Indeed, Van
Orden, the petitioner here, apparently walked by the monu
ment for a number of years before bringing this lawsuit.
The monument is therefore also quite different from the
prayers involved in Schempp and Lee v. Weisman. Texas
has treated its Capitol grounds monuments as representing
the several strands in the State’s political and legal history.
The inclusion of the Ten Commandments monument in this
11 Nor does anything suggest that Stone would extend to displays of the
Ten Commandments that lack a “plainly religious,” “pre-eminent pur
pose,” id., at 41. See Edwards v. Aguillard, supra, at 593–594 (“[Stone]
did not mean that no use could ever be made of the Ten Commandments,
or that the Ten Commandments played an exclusively religious role in the
history of Western Civilization”). Indeed, we need not decide in this case
the extent to which a primarily religious purpose would affect our analysis
because it is clear from the record that there is no evidence of such a
purpose in this case.

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group has a dual significance, partaking of both religion and
government. We cannot say that Texas’ display of this
monument violates the Establishment Clause of the First
Amendment.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice Scalia, concurring.
I join the opinion of The Chief Justice because I think
it accurately reflects our current Establishment Clause juris
prudence—or at least the Establishment Clause jurispru
dence we currently apply some of the time. I would prefer
to reach the same result by adopting an Establishment
Clause jurisprudence that is in accord with our Nation’s past
and present practices, and that can be consistently applied—
the central relevant feature of which is that there is nothing
unconstitutional in a State’s favoring religion generally, hon
oring God through public prayer and acknowledgment, or, in
a nonproselytizing manner, venerating the Ten Command
ments. See McCreary County v. American Civil Liberties
Union of Ky., post, at 885–894 (Scalia, J., dissenting).
Justice Thomas, concurring.
The Court holds that the Ten Commandments monument
found on the Texas State Capitol grounds does not violate
the Establishment Clause. Rather than trying to suggest
meaninglessness where there is meaning, The Chief Jus
tice rightly recognizes that the monument has “religious
significance.” Ante, at 690. He properly recognizes the
role of religion in this Nation’s history and the permissibility
of government displays acknowledging that history. Ante,
at 686–688. For those reasons, I join The Chief Justice’s
opinion in full.
This case would be easy if the Court were willing to aban
don the inconsistent guideposts it has adopted for addressing

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Establishment Clause challenges,* and return to the original
meaning of the Clause. I have previously suggested that
the Clause’s text and history “resis[t] incorporation” against
the States. See Elk Grove Unified School Dist. v. Newdow,
542 U. S. 1, 45–46 (2004) (opinion concurring in judgment);
see also Zelman v. Simmons-Harris, 536 U. S. 639, 677–680,
and n. 3 (2002) (concurring opinion). If the Establishment
Clause does not restrain the States, then it has no application
here, where only state action is at issue.
Even if the Clause is incorporated, or if the Free Exercise
Clause limits the power of States to establish religions, see
Cutter v. Wilkinson, 544 U. S. 709, 728, n. 3 (2005) (Thomas,
J., concurring), our task would be far simpler if we returned
to the original meaning of the word “establishment” than it
is under the various approaches this Court now uses. The
Framers understood an establishment “necessarily [to] in
volve actual legal coercion. ” Newdow, supra, at 52
(Thomas, J., concurring in judgment); Lee v. Weisman, 505
U. S. 577, 640 (1992) (Scalia, J., dissenting) (“The coercion
that was a hallmark of historical establishments of religion
was coercion of religious orthodoxy and of financial support
by force of law and threat of penalty”). “In other words,
establishment at the founding involved, for example, manda
tory observance or mandatory payment of taxes supporting
ministers.” Cutter, supra, at 729 (Thomas, J., concurring).
And “government practices that have nothing to do with cre
ating or maintaining . . . coercive state establishments” sim
ply do not “implicate the possible liberty interest of being
*See, e. g., County of Allegheny v. American Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U. S. 573, 592–594 (1989) (employing en
dorsement test); Lemon v. Kurtzman, 403 U. S. 602, 612–613 (1971) (set
ting forth three-pronged test); Marsh v. Chambers, 463 U. S. 783, 790–792
(1983) (upholding legislative prayer due to its “unique history”); see also
Lynch v. Donnelly, 465 U. S. 668, 679–681 (1984) (“[W]e have repeatedly
emphasized our unwillingness to be confined to any single test or criterion
in this sensitive area”).

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free from coercive state establishments.” Newdow, supra,
at 53 (Thomas, J., concurring in judgment).
There is no question that, based on the original meaning
of the Establishment Clause, the Ten Commandments dis
play at issue here is constitutional. In no sense does Texas
compel petitioner Van Orden to do anything. The only in
jury to him is that he takes offense at seeing the monument
as he passes it on his way to the Texas Supreme Court Li
brary. He need not stop to read it or even to look at it, let
alone to express support for it or adopt the Commandments
as guides for his life. The mere presence of the monument
along his path involves no coercion and thus does not violate
the Establishment Clause.
Returning to the original meaning would do more than
simplify our task. It also would avoid the pitfalls present
in the Court’s current approach to such challenges. This
Court’s precedent elevates the trivial to the proverbial “fed
eral case,” by making benign signs and postings subject to
challenge. Yet even as it does so, the Court’s precedent at
tempts to avoid declaring all religious symbols and words of
longstanding tradition unconstitutional, by counterfactually
declaring them of little religious significance. Even when
the Court’s cases recognize that such symbols have religious
meaning, they adopt an unhappy compromise that fails fully
to account for either the adherent’s or the nonadherent’s be
liefs, and provides no principled way to choose between
them. Even worse, the incoherence of the Court’s decisions
in this area renders the Establishment Clause impenetra
ble and incapable of consistent application. All told, this
Court’s jurisprudence leaves courts, governments, and be
lievers and nonbelievers alike confused—an observation that
is hardly new. See Newdow, supra, at 45, n. 1 (Thomas, J.,
concurring in judgment) (collecting cases).
First, this Court’s precedent permits even the slightest
public recognition of religion to constitute an establishment
of religion. For example, individuals frequenting a county

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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., Robin
son v. Edmond, 68 F. 3d 1226 (CA10 1995); Murray v. Aus
tin, 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
“[p]assersby . . . 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) (Ken
nedy, 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 estab
lishment, in other cases Members of this Court have con
cluded that the term or symbol at issue has no religious
meaning by virtue of its ubiquity or rote ceremonial invoca
tion. 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 exam
ple, just last Term this Court had before it a challenge to
the recitation of the Pledge of Allegiance, which includes the

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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 valida
tion 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. More
over, repetition does not deprive religious words or symbols
of their traditional meaning. Words like “God” are not vul
garities for which the shock value diminishes with each suc
cessive utterance.
Even when this Court’s precedents recognize the religious
meaning of symbols or words, that recognition fails to re
spect fully religious belief or disbelief. This Court looks for
the meaning to an observer of indeterminate religious affili
ation 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) (presum
ing 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 commu
nity.’ ” Santa Fe Independent School Dist. v. Doe, 530 U. S.
290, 309–310 (2000) (quoting Lynch, supra, at 688 (O’Con
nor, 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 mean
ing either gives insufficient weight to the views of nonadher
ents 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 applica
tion. See Edwards v. Aguillard, 482 U. S. 578, 640 (1987)
(Scalia, J., dissenting) (criticizing the Lemon test’s “flexibil
ity” 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 Mc-
Creary 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, adjudi
cation 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 per
sonal views of the judges”); post, at 700 (Breyer, J., concur
ring 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 pref
erences 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 theo
logical commissions, judging the meaning of religious mat
ters. 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 mon
ument on the Texas Capitol grounds, a more fundamental
rethinking of our Establishment Clause jurisprudence re
mains 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 permissi
ble from the impermissible.” Id., at 306 (concurring opin
ion). 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 pro
motes 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 main
tain 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 Tocque
ville, 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 govern
ment must “neither engage in nor compel religious prac
tices,” that it must “effect no favoritism among sects or be
tween 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 in
terference 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 con
flict the Establishment Clause seeks to avoid.
Thus, as Justices Goldberg and Harlan pointed out, the
Court has found no single mechanical formula that can ac
curately 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 some
times 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 ref
erences to, and invocations of, the Deity in the public words
of public officials; the public references to God on coins, de
crees, and buildings; or the attention paid to the religious
objectives of certain holidays, including Thanksgiving. See,

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e. g., Lemon, supra, at 612–613 (setting forth what has come
to be known as the “Lemon test”); Lynch, supra, at 687
(O’Connor, J., concurring) (setting forth the “endorsement
test”); Capitol Square Review and Advisory Bd. v. Pinette,
515 U. S. 753, 800, n. 5 (1995) (Stevens, J., dissenting)
(agreeing that an “endorsement test” should apply but criti
cizing its “reasonable observer” standard); Santa Fe Inde
pendent School Dist. v. Doe, 530 U. S. 290, 319 (2000) (Rehn
quist, C. J., dissenting) (noting Lemon’s “checkered career
in the decisional law of this Court”); County of Allegheny,
supra, at 655–656 (Kennedy, J., joined by Rehnquist, C. J.,
and White and Scalia, JJ., concurring in judgment in part
and dissenting in part) (criticizing the Lemon test).
If the relation between government and religion is one of
separation, but not of mutual hostility and suspicion, one will
inevitably find difficult borderline cases. And in such cases,
I see no test-related substitute for the exercise of legal judg
ment. See Schempp, supra, at 305 (Goldberg, J., concur
ring); cf. Zelman, supra, at 726–728 (Breyer, J., dissenting)
(need for similar exercise of judgment where quantitative
considerations matter). That judgment is not a personal
judgment. Rather, as in all constitutional cases, it must re
flect and remain faithful to the underlying purposes of the
Clauses, and it must take account of context and conse
quences measured in light of those purposes. While the
Court’s prior tests provide useful guideposts—and might
well lead to the same result the Court reaches today, see,
e. g., Lemon, supra, at 612–613; Capitol Square, supra, at
773–783 (O’Connor, J., concurring in part and concurring in
judgment)—no exact formula can dictate a resolution to such
fact-intensive cases.
The case before us is a borderline case. It concerns a
large granite monument bearing the text of the Ten Com
mandments located on the grounds of the Texas State Capi
tol. On the one hand, the Commandments’ text undeniably
has a religious message, invoking, indeed emphasizing, the

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Deity. On the other hand, focusing on the text of the Com
mandments alone cannot conclusively resolve this case.
Rather, to determine the message that the text here con
veys, we must examine how the text is used. And that in
quiry requires us to consider the context of the display.
In certain contexts, a display of the tablets of the Ten
Commandments can convey not simply a religious message
but also a secular moral message (about proper standards of
social conduct). And in certain contexts, a display of the
tablets can also convey a historical message (about a historic
relation between those standards and the law)—a fact that
helps to explain the display of those tablets in dozens of
courthouses throughout the Nation, including the Supreme
Court of the United States. See generally App. to Brief for
United States as Amicus Curiae 1a–7a.
Here the tablets have been used as part of a display that
communicates not simply a religious message, but a secular
message as well. The circumstances surrounding the dis
play’s placement on the capitol grounds and its physical set
ting suggest that the State itself intended the latter, nonreli
gious aspects of the tablets’ message to predominate. And
the monument’s 40-year history on the Texas state grounds
indicates that that has been its effect.
The group that donated the monument, the Fraternal
Order of Eagles, a private civic (and primarily secular) orga
nization, while interested in the religious aspect of the Ten
Commandments, sought to highlight the Commandments’
role in shaping civic morality as part of that organization’s
efforts to combat juvenile delinquency. See Tex. S. Con.
Res. 16, 57th Leg., Reg. Sess. (1961). The Eagles’ consulta
tion with a committee composed of members of several faiths
in order to find a nonsectarian text underscores the group’s
ethics-based motives. See Brief for Respondents 5–6, and
n. 9. The tablets, as displayed on the monument, promi
nently acknowledge that the Eagles donated the display, a
factor which, though not sufficient, thereby further distances

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the State itself from the religious aspect of the Command
ments’ message.
The physical setting of the monument, moreover, suggests
little or nothing of the sacred. See Appendix A, infra.
The monument sits in a large park containing 17 monuments
and 21 historical markers, all designed to illustrate the
“ideals” of those who settled in Texas and of those who have
lived there since that time. Tex. H. Con. Res. 38, 77th Leg.,
Reg. Sess. (2001); see Appendix B, infra. The setting does
not readily lend itself to meditation or any other religious
activity. But it does provide a context of history and moral
ideals. It (together with the display’s inscription about its
origin) communicates to visitors that the State sought to re
flect moral principles, illustrating a relation between ethics
and law that the State’s citizens, historically speaking, have
endorsed. That is to say, the context suggests that the
State intended the display’s moral message—an illustrative
message reflecting the historical “ideals” of Texans—to
predominate.
If these factors provide a strong, but not conclusive, indica
tion that the Commandments’ text on this monument con
veys a predominantly secular message, a further factor is
determinative here. As far as I can tell, 40 years passed in
which the presence of this monument, legally speaking, went
unchallenged (until the single legal objection raised by peti
tioner). And I am not aware of any evidence suggesting
that this was due to a climate of intimidation. Hence, those
40 years suggest more strongly than can any set of formulaic
tests that few individuals, whatever their system of beliefs,
are likely to have understood the monument as amounting,
in any significantly detrimental way, to a government effort
to favor a particular religious sect, primarily to promote reli
gion over nonreligion, to “engage in” any “religious prac
tic[e],” to “compel” any “religious practic[e],” or to “work de
terrence” of any “religious belief.” Schempp, 374 U. S., at
305 (Goldberg, J., concurring). Those 40 years suggest that

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the public visiting the capitol grounds has considered the re
ligious aspect of the tablets’ message as part of what is a
broader moral and historical message reflective of a cul
tural heritage.
This case, moreover, is distinguishable from instances
where the Court has found Ten Commandments displays im
permissible. The display is not on the grounds of a public
school, where, given the impressionability of the young, gov
ernment must exercise particular care in separating church
and state. See, e. g., Weisman, 505 U. S., at 592; Stone v.
Graham, 449 U. S. 39 (1980) (per curiam). This case also
differs from McCreary County, where the short (and stormy)
history of the courthouse Commandments’ displays demon
strates the substantially religious objectives of those who
mounted them, and the effect of this readily apparent objec
tive upon those who view them. See post, at 869–873 (opin
ion of the Court). That history there indicates a govern
mental effort substantially to promote religion, not simply
an effort primarily to reflect, historically, the secular impact
of a religiously inspired document. And, in today’s world,
in a Nation of so many different religious and comparable
nonreligious fundamental beliefs, a more contemporary state
effort to focus attention upon a religious text is certainly
likely to prove divisive in a way that this longstanding, pre
existing monument has not.
For these reasons, I believe that the Texas display—serv
ing a mixed but primarily nonreligious purpose, not primar
ily “advanc[ing]” or “inhibit[ing] religion,” and not creating
an “excessive government entanglement with religion”—
might satisfy this Court’s more formal Establishment Clause
tests. Lemon, 403 U. S., at 612–613 (internal quotation
marks omitted); see also Capitol Square, 515 U. S., at 773–
783 (O’Connor, J., concurring in part and concurring in judg
ment). But, as I have said, in reaching the conclusion that
the Texas display falls on the permissible side of the constitu
tional line, I rely less upon a literal application of any partic

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ular test than upon consideration of the basic purposes of
the First Amendment’s Religion Clauses themselves. This
display has stood apparently uncontested for nearly two gen
erations. That experience helps us understand that as a
practical matter of degree this display is unlikely to prove
divisive. And this matter of degree is, I believe, critical in
a borderline case such as this one.
At the same time, to reach a contrary conclusion here,
based primarily on the religious nature of the tablets’ text
would, I fear, lead the law to exhibit a hostility toward reli
gion that has no place in our Establishment Clause tradi
tions. Such a holding might well encourage disputes con
cerning the removal of longstanding depictions of the Ten
Commandments from public buildings across the Nation.
And it could thereby create the very kind of religiously
based divisiveness that the Establishment Clause seeks
to avoid. Zelman, 536 U. S., at 717–729 (Breyer, J.,
dissenting).
Justices Goldberg and Harlan concluded in Schempp that
“[t]he First Amendment does not prohibit practices
which by any realistic measure create none of the dan
gers which it is designed to prevent and which do not so
directly or substantially involve the state in religious
exercises or in the favoring of religion as to have mean
ingful and practical impact.” 374 U. S., at 308 (concur
ring opinion).
That kind of practice is what we have here. I recognize the
danger of the slippery slope. Still, where the Establishment
Clause is at issue, we must “distinguish between real threat
and mere shadow.” Ibid. Here, we have only the shadow.
In light of these considerations, I cannot agree with to
day’s plurality’s analysis. Nor can I agree with Justice
Scalia’s dissent in McCreary County, post, at 885. I do
agree with Justice O’Connor’s statement of principles in
McCreary County, post, at 881–883, though I disagree with

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Breyer, J., concurring in judgment
her evaluation of the evidence as it bears on the application
of those principles to this case.
I concur in the judgment of the Court.
[Appendixes A and B to opinion of Breyer, J., follow
this page.]

APPENDIX A TO OPINION OF BREYER, J.
ß
Red arrow points to Ten Commandments Monument.

APPENDIX B TO OPINION OF BREYER, J.

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Stevens, J., dissenting
Justice Stevens, with whom Justice Ginsburg joins,
dissenting.
The sole function of the monument on the grounds of
Texas’ State Capitol is to display the full text of one version
of the Ten Commandments. The monument is not a work of
art and does not refer to any event in the history of the
State. It is significant because, and only because, it commu
nicates the following message:
“I AM the LORD thy God.
Thou shalt have no other gods before me.
Thou shalt not make to thyself any graven images.
Thou shalt not take the Name of the Lord thy God in vain.
Remember the Sabbath day, to keep it holy.
Honor thy father and thy mother, that thy days may be long
upon the land which the Lord thy God giveth thee.
Thou shalt not kill.
Thou shalt not commit adultery.
Thou shalt not steal.
Thou shalt not bear false witness against thy neighbor.
Thou shalt not covet thy neighbor’s house.
Thou shalt not covet thy neighbor’s wife, nor his manservant,
nor his maidservant, nor his cattle, nor anything that is
thy neighbor’s.” See Appendix, infra.1
Viewed on its face, Texas’ display has no purported con
nection to God’s role in the formation of Texas or the found
ing of our Nation; nor does it provide the reasonable ob
server with any basis to guess that it was erected to honor
any individual or organization. The message transmitted by
Texas’ chosen display is quite plain: This State endorses the
divine code of the “Judeo-Christian” God.
1 At the bottom of the message, the observer learns that the display was
“[p]resented to the people and youth of Texas by the Fraternal Order of
Eagles of Texas” in 1961. See Appendix, infra.

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Stevens, J., dissenting
For those of us who learned to recite the King James ver
sion of the text long before we understood the meaning
of some of its words, God’s Commandments may seem like
wise counsel. The question before this Court, however, is
whether it is counsel that the State of Texas may proclaim
without violating the Establishment Clause of the Constitu
tion. If any fragment of Jefferson’s metaphorical “wall of
separation between church and State” 2 is to be preserved—
if there remains any meaning to the “wholesome ‘neutrality’
of which this Court’s [Establishment Clause] cases speak,”
School Dist. of Abington Township v. Schempp, 374 U. S.
203, 222 (1963)—a negative answer to that question is
mandatory.
I
In my judgment, at the very least, the Establishment
Clause has created a strong presumption against the display
of religious symbols on public property. See, e. g., County
of Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573, 650 (1989) (Stevens, J.,
concurring in part and dissenting in part); Capitol Square
Review and Advisory Bd. v. Pinette, 515 U. S. 753, 797 (1995)
(Stevens, J., dissenting). The adornment of our public
spaces with displays of religious symbols and messages un
doubtedly provides comfort, even inspiration, to many indi
viduals who subscribe to particular faiths. Unfortunately,
the practice also runs the risk of “offend[ing] nonmembers of
the faith being advertised as well as adherents who consider
the particular advertisement disrespectful.” Allegheny
County, 492 U. S., at 651 (Stevens, J., concurring in part
and dissenting in part).3
2 Reynolds v. United States, 98 U. S. 145, 164 (1879); see also Everson v.
Board of Ed. of Ewing, 330 U. S. 1, 16 (1947).
3 As Senator Danforth recently reminded us, “efforts to haul references
of God into the public square, into schools and courthouses, are far more
apt to divide Americans than to advance faith.” Danforth, Onward, Mod
erate Christian Soldiers, N. Y. Times, June 17, 2005, p. A27.

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Government’s obligation to avoid divisiveness and exclu
sion in the religious sphere is compelled by the Establish
ment and Free Exercise Clauses, which together erect a wall
of separation between church and state.4 This metaphorical
wall protects principles long recognized and often recited in
this Court’s cases. The first and most fundamental of these
principles, one that a majority of this Court today affirms, is
that the Establishment Clause demands religious neutral
ity—government may not exercise a preference for one reli
gious faith over another. See, e. g., McCreary County v.
American Civil Liberties Union of Ky., post, at 874–876.5
This essential command, however, is not merely a prohibition
4 The accuracy and utility of this metaphor have been called into ques
tion. See, e. g., Wallace v. Jaffree, 472 U. S. 38, 106 (1985) (Rehnquist,
J., dissenting); see generally P. Hamburger, Separation of Church and
State (2002). Whatever one may think of the merits of the historical de
bate surrounding Jefferson and the “wall” metaphor, this Court at a mini
mum has never questioned the concept of the “separation of church and
state” in our First Amendment jurisprudence. The Chief Justice’s
opinion affirms that principle. Ante, at 683 (demanding a “separation be
tween church and state”). Indeed, even the Court that famously opined
that “[w]e are a religious people whose institutions presuppose a Supreme
Being,” Zorach v. Clauson, 343 U. S. 306, 313 (1952), acknowledged that
“[t]here cannot be the slightest doubt that the First Amendment reflects
the philosophy that Church and State should be separated,” id., at 312.
The question we face is how to give meaning to that concept of separation.
5 There is now widespread consensus on this principle. See Everson,
330 U. S., at 15 (“Neither a state nor the Federal Government . . . can pass
laws which aid one religion, aid all religions, or prefer one religion over
another”); School Dist. of Abington Township v. Schempp, 374 U. S. 203,
226 (1963) (“In the relationship between man and religion, the State is
firmly committed to a position of neutrality”); Larson v. Valente, 456 U. S.
228, 244 (1982) (“The clearest command of the Establishment Clause is
that one religious denomination cannot be officially preferred over an
other”); see also Board of Ed. of Kiryas Joel Village School Dist. v.
Grumet, 512 U. S. 687, 748 (1994) (Scalia, J., dissenting) (“I have always
believed . . . that the Establishment Clause prohibits the favoring of one
religion over others”); but see Church of Holy Trinity v. United States,
143 U. S. 457, 470–471 (1892).

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against the government’s differentiation among religious
sects. We have repeatedly reaffirmed that neither a State
nor the Federal Government “can constitutionally pass laws
or impose requirements which aid all religions as against
non-believers, and neither can aid those religions based on a
belief in the existence of God as against those religions
founded on different beliefs.” Torcaso v. Watkins, 367 U. S.
488, 495 (1961) (footnote omitted).6 This principle is based
on the straightforward notion that governmental promotion
of orthodoxy is not saved by the aggregation of several or
thodoxies under the State’s banner. See Abington, 374
U. S., at 222.
Acknowledgments of this broad understanding of the neu
trality principle are legion in our cases.7 Strong arguments
to the contrary have been raised from time to time, perhaps
the strongest in then-Justice Rehnquist’s scholarly dis
6 In support of this proposition, the Torcaso Court quoted James Iredell,
who in the course of debating the adoption of the Federal Constitution in
North Carolina, stated: “ ‘[I]t is objected that the people of America may,
perhaps, choose representatives who have no religion at all, and that pa
gans and Mahometans may be admitted into offices. But how is it possible
to exclude any set of men, without taking away that principle of religious
freedom which we ourselves so warmly contend for?’ ” 367 U. S., at 495,
n. 10 (quoting 4 J. Elliot, Debates in the Several State Conventions on the
Adoption of the Federal Constitution 194 (2d ed. 1891)).
7 See Everson, 330 U. S., at 18 (the Establishment Clause “requires the
state to be . . . neutral in its relations with groups of religious believers
and non-believers”); Abington, 374 U. S., at 216 (rejecting the proposition
that the Establishment Clause “forbids only governmental preference of
one religion over another”); Wallace, 472 U. S., at 52–55 (the interest in
“forestalling intolerance extends beyond intolerance among Christian
sects—or even intolerance among ‘religions’—to encompass intolerance of
the disbeliever and the uncertain”); cf. Zorach, 343 U. S., at 325 (Jackson,
J., dissenting) (“The day that this country ceases to be free for irreligion
it will cease to be free for religion—except for the sect that can win politi
cal power”).

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sent in Wallace v. Jaffree, 472 U. S. 38, 91–114 (1985).8 Pow
erful as his argument was, we squarely rejected it and
thereby reaffirmed the principle that the Establishment
Clause requires the same respect for the atheist as it does
for the adherent of a Christian faith. As we wrote, “the
Court has unambiguously concluded that the individual free
dom of conscience protected by the First Amendment em
braces the right to select any religious faith or none at all.”
Id., at 52–53.
In restating this principle, I do not discount the impor
tance of avoiding an overly strict interpretation of the meta
phor so often used to define the reach of the Establishment
Clause. The plurality is correct to note that “religion and
religious traditions” have played a “strong role . . . through
out our Nation’s history.” Ante, at 683. This Court has
often recognized “an unbroken history of official acknow
ledgment . . . of the role of religion in American life.”
Lynch v. Donnelly, 465 U. S. 668, 674 (1984); accord, Edwards
v. Aguillard, 482 U. S. 578, 606–608 (1987) (Powell, J., concur
ring). Given this history, it is unsurprising that a religious
symbol may at times become an important feature of a famil
iar landscape or a reminder of an important event in the
history of a community. The wall that separates the church
from the State does not prohibit the government from ac
knowledging the religious beliefs and practices of the Ameri
can people, nor does it require governments to hide works of
art or historic memorabilia from public view just because
they also have religious significance.
This case, however, is not about historic preservation or
the mere recognition of religion. The issue is obfuscated
rather than clarified by simplistic commentary on the various
8 Justice Scalia’s dissent in the other Ten Commandments case we
decide today, see McCreary County v. American Civil Liberties Union of
Ky., post, at 885–894, raises similar objections. I address these objections
directly in Part III.

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ways in which religion has played a role in American life,
see ante, at 683–688 (plurality opinion), and by the recitation
of the many extant governmental “acknowledgments” of the
role the Ten Commandments played in our Nation’s heri
tage,9 ante, at 687–689, and n. 9. Surely, the mere compila
tion of religious symbols, none of which includes the full text
of the Commandments and all of which are exhibited in dif
ferent settings, has only marginal relevance to the question
presented in this case.
The monolith displayed on Texas Capitol grounds cannot
be discounted as a passive acknowledgment of religion, nor
can the State’s refusal to remove it upon objection be ex
plained as a simple desire to preserve a historic relic. This
Nation’s resolute commitment to neutrality with respect to
religion is flatly inconsistent with the plurality’s whole
hearted validation of an official state endorsement of the
message that there is one, and only one, God.
II
When the Ten Commandments monument was donated to
the State of Texas in 1961, it was not for the purpose of
commemorating a noteworthy event in Texas history, signi
9 Though this Court has subscribed to the view that the Ten Command
ments influenced the development of Western legal thought, it has not
officially endorsed the far more specific claim that the Ten Commandments
played a significant role in the development of our Nation’s foundational
documents (and the subsidiary implication that it has special relevance to
Texas). Although it is perhaps an overstatement to characterize this lat
ter proposition as “idiotic,” see Tr. of Oral Arg. 34, as one Member of the
plurality has done, at the very least the question is a matter of intense
scholarly debate. Compare Brief for Legal Historians and Law Scholars
as Amicus Curiae in McCreary County v. American Civil Liberties
Union of Ky., O. T. 2004, No. 03–1693, with Brief for American Center for
Law and Justice as Amicus Curiae. Whatever the historical accuracy
of the proposition, the District Court categorically rejected respondents’
suggestion that the State’s actual purpose in displaying the Decalogue was
to signify its influence on secular law and Texas institutions. App. to Pet.
for Cert. 32.

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fying the Commandments’ influence on the development of
secular law, or even denoting the religious beliefs of Texans
at that time. To the contrary, the donation was only one
of over a hundred largely identical monoliths, and of over a
thousand paper replicas, distributed to state and local gov
ernments throughout the Nation over the course of several
decades. This ambitious project was the work of the Fra
ternal Order of Eagles, a well-respected benevolent organi
zation whose good works have earned the praise of several
Presidents.10
As the story goes, the program was initiated by the late
Judge E. J. Ruegemer, a Minnesota juvenile court judge and
then-Chairman of the Eagles National Commission on Youth
Guidance. Inspired by a juvenile offender who had never
heard of the Ten Commandments, the judge approached the
Minnesota Eagles with the idea of distributing paper copies
of the Commandments to be posted in courthouses nation
wide. The State’s Aerie undertook this project and its pop
ularity spread. When Cecil B. DeMille, who at that time
was filming the movie The Ten Commandments, heard of the
judge’s endeavor, he teamed up with the Eagles to produce
the type of granite monolith now displayed in front of the
Texas Capitol and at courthouse squares, city halls, and pub
lic parks throughout the Nation. Granite was reportedly
chosen over DeMille’s original suggestion of bronze plaques
to better replicate the original Ten Commandments.11
10 See Brief for Fraternal Order of Eagles as Amicus Curiae 2–3. The
Order was formed in 1898 by six Seattle theater owners, promptly joined
by actors, playwrights, and stagehands, and rapidly expanded to include a
nationwide membership numbering over a million. Id., at 1–2; see also
Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fra
ternal Order of Eagles, 148 Wash. 2d 224, 229, 59 P. 3d 655, 657 (2002) (en
banc); Lahmann v. Grand Aerie of Fraternal Order of Eagles, 180 Ore.
App. 420, 422, 43 P. 3d 1130, 1131 (2002).
11 See Books v. Elkhart, 235 F. 3d 292, 294–295 (CA7 2000); State v.
Freedom from Religion Foundation, Inc., 898 P. 2d 1013, 1017 (Colo. 1995)
(en banc); see also U. S. Supreme Court will hear Ten Commandments

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The donors were motivated by a desire to “inspire the
youth” and curb juvenile delinquency by providing children
with a “ ‘code of conduct or standards by which to govern
their actions.’ ” 12 It is the Eagles’ belief that disseminating
the message conveyed by the Ten Commandments will help
to persuade young men and women to observe civilized
standards of behavior, and will lead to more productive lives.
Significantly, although the Eagles’ organization is nonsectar
ian, eligibility for membership is premised on a belief in the
existence of a “Supreme Being.” 13 As described by the Ea
gles themselves:
“ ‘[I]n searching for a youth guidance program [we] rec
ognized that there can be no better, no more defined
program of Youth Guidance, and adult guidance as well,
than the laws handed down by God Himself to Moses
more than 3000 years ago, which laws have stood un
changed through the years. They are a fundamental
part of our lives, the basis of all our laws for living, the
foundation of our relationship with our Creator, with our
families and with our fellow men. All the concepts we
Case in Early 2005, http://www.foe.com/tencommandments/index.html (all
Internet materials as visited June 24, 2005, and available in Clerk of
Court’s case file).
12 Brief for Fraternal Order of Eagles as Amicus Curiae 4; Freedom
from Religion Foundation, 898 P. 2d, at 1017; accord, Tex. S. Con. Res.
16, 57th Leg., Reg. Sess. (1961) (“These plaques and monoliths have been
presented by the Eagles to promote youth morality and to help stop the
alarming increase in delinquency”).
13 According to its articles of incorporation, the Eagles’ purpose is to:
“ ‘[U]nite fraternally for mutual benefit, protection, improvement, social
enjoyment and association, all persons of good moral character who believe
in a Supreme Being to inculcate the principles of liberty, truth, justice and
equality . . . .’ ” Fraternal Order of Eagles, 148 Wash. 2d, at 229, 59
P. 3d, at 657. See also Aerie Membership Application–Fraternal Order of
Eagles, http://www.foe.com/membership/applications/aerie.html (“I, being
of sound body and mind, and believing in the existence of a Supreme
Being . . . ”).

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live by—freedom, democracy, justice, honor—are rooted
in the Ten Commandments.
. . . . .
“ ‘The erection of these monoliths is to inspire all who
pause to view them, with a renewed respect for the law
of God, which is our greatest strength against the forces
that threaten our way of life.’ ” Anderson v. Salt Lake
City Corp., 348 F. Supp. 1170, 1172 (Utah 1972), rev’d,
475 F. 2d 29 (CA10 1973).
The desire to combat juvenile delinquency by providing
guidance to youths is both admirable and unquestionably sec
ular. But achieving that goal through biblical teachings in
jects a religious purpose into an otherwise secular endeavor.
By spreading the word of God and converting heathens to
Christianity, missionaries expect to enlighten their converts,
enhance their satisfaction with life, and improve their behav
ior. Similarly, by disseminating the “law of God”—directing
fidelity to God and proscribing murder, theft, and adultery—
the Eagles hope that this divine guidance will help wayward
youths conform their behavior and improve their lives. In
my judgment, the significant secular byproducts that are in
tended consequences of religious instruction—indeed, of the
establishment of most religions—are not the type of “secu
lar” purposes that justify government promulgation of sa
cred religious messages.
Though the State of Texas may genuinely wish to combat
juvenile delinquency, and may rightly want to honor the Ea
gles for their efforts, it cannot effectuate these admirable
purposes through an explicitly religious medium. See
Bowen v. Kendrick, 487 U. S. 589, 639–640 (1988) (Blackmun,
J., dissenting) (“It should be undeniable by now that religious
dogma may not be employed by government even to accom
plish laudable secular purposes”). The State may admonish
its citizens not to lie, cheat, or steal, to honor their parents,
and to respect their neighbors’ property; and it may do so
by printed words, in television commercials, or on granite

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monuments in front of its public buildings. Moreover, the
State may provide its schoolchildren and adult citizens with
educational materials that explain the important role that
our forebears’ faith in God played in their decisions to select
America as a refuge from religious persecution, to declare
their independence from the British Crown, and to conceive
a new Nation. See Edwards, 482 U. S., at 606–608 (Powell,
J., concurring). The message at issue in this case, however,
is fundamentally different from either a bland admonition to
observe generally accepted rules of behavior or a general
history lesson.
The reason this message stands apart is that the Deca
logue is a venerable religious text.14 As we held 25 years
ago, it is beyond dispute that “[t]he Ten Commandments are
undeniably a sacred text in the Jewish and Christian faiths.”
Stone v. Graham, 449 U. S. 39, 41 (1980) (per curiam). For
many followers, the Commandments represent the literal
word of God as spoken to Moses and repeated to his followers
after descending from Mount Sinai. The message conveyed
by the Ten Commandments thus cannot be analogized to an
appendage to a common article of commerce (“In God we
Trust”) or an incidental part of a familiar recital (“God save
the United States and this honorable Court”). Thankfully,
the plurality does not attempt to minimize the religious sig
nificance of the Ten Commandments. Ante, at 690 (“Of
course, the Ten Commandments are religious—they were so
viewed at their inception and so remain”); ante, at 692
(Thomas, J., concurring); see also McCreary County v.
14 In County of Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573 (1989), I noted that certain displays of
religious images may convey “an equivocal message, perhaps of respect
for Judaism, for religion in general, or for law.” Id., at 652 (opinion con
curring in part and dissenting in part). It is rather misleading, however,
to quote my comment in that case to imply that I was referring to the
text of the Ten Commandments simpliciter. See McCreary County, post,
at 904.

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American Civil Liberties Union of Ky., post, at 909 (Scalia,
J., dissenting). Attempts to secularize what is unquestion
ably a sacred text defy credibility and disserve people of
faith.
The profoundly sacred message embodied by the text in
scribed on the Texas monument is emphasized by the espe
cially large letters that identify its author: “I AM the LORD
thy God.” See Appendix, in fra. It commands present
worship of Him and no other deity. It directs us to be
guided by His teaching in the current and future conduct of
all of our affairs. It instructs us to follow a code of divine
law, some of which has informed and been integrated into
our secular legal code (“Thou shalt not kill”), but much of
which has not (“Thou shalt not make to thyself any graven
images. . . . Thou shalt not covet”).
Moreover, despite the Eagles’ best efforts to choose a be
nign nondenominational text,15 the Ten Commandments dis
play projects not just a religious, but an inherently sectarian,
message. There are many distinctive versions of the Deca
logue, ascribed to by different religions and even different
denominations within a particular faith; to a pious and
learned observer, these differences may be of enormous reli
15 See ante, at 701 (Breyer, J., concurring in judgment). Despite the
Eagles’ efforts, not all of the monuments they donated in fact conform to
a “universally-accepted” text. Compare, e. g., Appendix, infra (including
the command that “Thou shalt not make to thyself any graven images”),
and Adland v. Russ, 307 F. 3d 471, 475 (CA6 2002) (same), with Freedom
from Religion Foundation, 898 P. 2d, at 1016 (omitting that command
altogether). The distinction represents a critical divide between the
Protestant and Catholic faiths. During the Reformation, Protestants de
stroyed images of the Virgin Mary and of Jesus Christ that were vener
ated in Catholic churches. Even today there is a notable difference be
tween the imagery in different churches, a difference that may in part be
attributable to differing understandings of the meaning of what is the
Second Commandment in the King James Bible translation and a portion
of the First Commandment in the Catholic translation. See Finkelman,
The Ten Commandments on the Courthouse Lawn and Elsewhere, 73
Ford. L. Rev. 1477, 1493–1494 (2005) (hereinafter Finkelman).

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gious significance.16 See Lubet, The Ten Commandments in
Alabama, 15 Constitutional Commentary 471, 474–476 (Fall
1998). In choosing to display this version of the Command
ments, Texas tells the observer that the State supports this
side of the doctrinal religious debate. The reasonable ob
server, after all, has no way of knowing that this text was
the product of a compromise, or that there is a rationale of
any kind for the text’s selection.17
The Establishment Clause, if nothing else, prohibits gov
ernment from “specifying details upon which men and
women who believe in a benevolent, omnipotent Creator and
Ruler of the world are known to differ.” Lee v. Weisman,
505 U. S. 577, 641 (1992) (Scalia, J., dissenting). Given that
the chosen text inscribed on the Ten Commandments monu
ment invariably places the State at the center of a serious
16 For example, in the Jewish version of the Sixth Commandment God
commands: “You shall not murder”; whereas, the King James interpreta
tion of the same command is: “Thou shalt not kill.” Compare W. Plaut,
The Torah: A Modern Commentary 534 (1981), with Appendix, infra.
The difference between the two versions is not merely semantic; rather,
it is but one example of a deep theological dispute. See Finkelman 1481–
1500; Maier, Enumerating the Decalogue: Do We Number the Ten Com
mandments Correctly? 16 Concordia J. 18, 18–26 (1990). Varying inter
pretations of this Commandment explain the actions of vegetarians who
refuse to eat meat, pacifists who refuse to work for munitions makers,
prison officials who refuse to administer lethal injections to death row
inmates, and pharmacists who refuse to sell morning-after pills to women.
See Finkelman 1494–1496; Brief for American Jewish Congress et al. as
Amici Curiae 22–23. Although the command is ambiguous, its power to
motivate like-minded interpreters of its message cannot be denied.
17 Justice Scalia’s willingness to dismiss the distinct textual versions
adhered to by different faiths in the name of generic “monotheism” based
on mere speculation regarding their significance, McCreary County, post,
at 909, is not only somewhat ironic, see A. Scalia, A Matter of Interpreta
tion 23–25 (1997), but also serves to reinforce the concern that interjecting
government into the religious sphere will offend “adherents who consider
the particular advertisement disrespectful,” Allegheny County, 492
U. S., at 651 (Stevens, J., concurring in part and dissenting in part).

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sectarian dispute, the display is unquestionably unconstitu
tional under our case law. See Larson v. Valente, 456 U. S.
228, 244 (1982) (“The clearest command of the Establishment
Clause is that one religious denomination cannot be officially
preferred over another”).
Even if, however, the message of the monument, despite
the inscribed text, fairly could be said to represent the belief
system of all Judeo-Christians, it would still run afoul of the
Establishment Clause by prescribing a compelled code of
conduct from one God, namely, a Judeo-Christian God, that
is rejected by prominent polytheistic sects, such as Hindu
ism, as well as nontheistic religions, such as Buddhism.18
See, e. g., Allegheny County, 492 U. S., at 615 (opinion of
Blackmun, J.) (“The simultaneous endorsement of Judaism
and Christianity is no less constitutionally infirm than the
endorsement of Christianity alone”). And, at the very least,
the text of the Ten Commandments impermissibly commands
a preference for religion over irreligion. See, e. g., id., at
590 (The Establishment Clause “guarantee[s] religious lib
erty and equality to ‘the infidel, the atheist, or the adherent
18 See Brief for Hindu American Foundation et al. as Amici Curiae.
Though Justice Scalia disagrees that these sentiments are consistent
with the Establishment Clause, he does not deny that our cases whole
heartedly adopt this expression of neutrality. Instead, he suggests that
this Court simply discard what he terms the “say-so of earlier Courts,”
based in part on his own “say-so” that nonmonotheists make up a statis
tically insignificant portion of this Nation’s religious community. Mc-
Creary County, post, at 889. Besides marginalizing the belief systems of
more than 7 million Americans by deeming them unworthy of the special
protections he offers monotheists under the Establishment Clause, Jus
tice Scalia’s measure of analysis may be cause for concern even for the
self-proclaimed “popular” religions of Islam and Judaism. The number of
Buddhists alone is nearly equal to the number of Muslims in this country,
and while those of the Islamic and Jewish faiths only account for 2.2% of all
believers, Christianity accounts for 95.5%. See U. S. Dept. of Commerce,
Bureau of Census, Statistical Abstract of the United States: 2004–2005,
p. 55 (124th ed. 2004) (Table No. 67).

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of a non-Christian faith such as Islam or Judaism’ ” (quoting
Wallace, 472 U. S., at 52)). Any of those bases, in my judg
ment, would be sufficient to conclude that the message
should not be proclaimed by the State of Texas on a perma
nent monument at the seat of its government.
I do not doubt that some Texans, including those elected
to the Texas Legislature, may believe that the statues dis
played on the Texas Capitol grounds, including the Ten Com
mandments monument, reflect the “ideals . . . that compose
Texan identity.” Tex. H. Con. Res. 38, 77th Leg., Reg. Sess.
(2001). But Texas, like our entire country, is now a much
more diversified community than it was when it became a
part of the United States or even when the monument was
erected. Today there are many Texans who do not believe
in the God whose Commandments are displayed at their seat
of government. Many of them worship a different god or no
god at all. Some may believe that the account of the cre
ation in the Book of Genesis is less reliable than the views
of men like Darwin and Einstein. The monument is no more
an expression of the views of every true Texan than was the
“Live Free or Die” motto that the State of New Hampshire
placed on its license plates in 1969 an accurate expression of
the views of every citizen of New Hampshire. See Wooley
v. Maynard, 430 U. S. 705 (1977).
Recognizing the diversity of religious and secular beliefs
held by Texans and by all Americans, it seems beyond per
adventure that allowing the seat of government to serve
as a stage for the propagation of an unmistakably Judeo-
Christian message of piety would have the tendency to make
nonmonotheists and nonbelievers “feel like [outsiders] in
matters of faith, and [strangers] in the political community.”
Pinette, 515 U. S., at 799 (Stevens, J., dissenting). “[D]is
plays of this kind inevitably have a greater tendency to em
phasize sincere and deeply felt differences among individuals
than to achieve an ecumenical goal.” Allegheny County, 492

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U. S., at 651 (Stevens, J., concurring in part and dissenting
in part).19
Even more than the display of a religious symbol on gov
ernment property, see Pinette, 515 U. S., at 797 (Stevens,
J., dissenting); Allegheny County, 492 U. S., at 650–651 (Ste
vens, J., concurring in part and dissenting in part), display
ing this sectarian text at the state capitol should invoke a
powerful presumption of invalidity. As Justice Souter’s
opinion persuasively demonstrates, the physical setting in
which the Texas monument is displayed—far from rebutting
that presumption—actually enhances the religious content of
its message. See post, at 742–743 (dissenting opinion). The
monument’s permanent fixture at the seat of Texas govern
ment is of immense significance. The fact that a monument
“is installed on public property implies official recogni
tion and reinforcement of its message. That implication
is especially strong when the sign stands in front of the
seat of the government itself. The ‘reasonable ob
server’ of any symbol placed unattended in front of any
capitol in the world will normally assume that the sover
eign—which is not only the owner of that parcel of real
estate but also the lawgiver for the surrounding terri
tory—has sponsored and facilitated its message.” Pi
nette, 515 U. S., at 801–802 (Stevens, J., dissenting).
Critical examination of the Decalogue’s prominent display
at the seat of Texas government, rather than generic citation
19 The fact that this particular display has stood unchallenged for over
40 years does not suggest otherwise. One need look no further than the
deluge of cases flooding lower courts to realize the discord these displays
have engendered. See, e. g., Mercier v. Fraternal Order of Eagles, 395
F. 3d 693 (CA7 2005); ACLU Nebraska Foundation v. Plattsmouth, 358
F. 3d 1020 (CA8 2004); Adland v. Russ, 307 F. 3d 471 (CA6 2002); Sum
mum v. Ogden, 297 F. 3d 995 (CA10 2002); Books v. Elkhart, 235 F. 3d 292
(CA7 2000); State v. Freedom From Religion Foundation, Inc., 898 P. 2d
1013 (Colo. 1995); Anderson v. Salt Lake City Corp., 475 F. 2d 29 (CA10
1973).

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to the role of religion in American life, unmistakably reveals
on which side of the “slippery slope,” ante, at 704 (Breyer,
J., concurring in judgment), this display must fall. God, as
the author of its message, the Eagles, as the donor of the
monument, and the State of Texas, as its proud owner, speak
with one voice for a common purpose—to encourage Texans
to abide by the divine code of a “Judeo-Christian” God. If
this message is permissible, then the shining principle of
neutrality to which we have long adhered is nothing more
than mere shadow.
III
The plurality relies heavily on the fact that our Republic
was founded, and has been governed since its nascence, by
leaders who spoke then (and speak still) in plainly religious
rhetoric. The Chief Justice cites, for instance, George
Washington’s 1789 Thanksgiving Proclamation in support of
the proposition that the Establishment Clause does not pro
scribe official recognition of God’s role in our Nation’s her
itage, ante, at 687.20 Further, the plurality emphatically
endorses the seemingly timeless recognition that our
“institutions presuppose a Supreme Being,” ante, at 683.
Many of the submissions made to this Court by the parties
and amici, in accord with the plurality’s opinion, have relied
on the ubiquity of references to God throughout our history.
The speeches and rhetoric characteristic of the founding
era, however, do not answer the question before us. I have
already explained why Texas’ display of the full text of the
Ten Commandments, given the content of the actual display
20 This is, of course, a rhetorical approach not unique to the plurality’s
opinion today. Appeals to such religious speeches have frequently been
used in support of governmental transmission of religious messages. See,
e. g., Wallace, 472 U. S., at 98–104 (Rehnquist, J., dissenting); Lee v. Weis
man, 505 U. S. 577, 633–636 (1992) (Scalia, J., dissenting); Santa Fe Inde
pendent School Dist. v. Doe, 530 U. S. 290, 318 (2000) (Rehnquist, C. J.,
dissenting); cf. Lynch v. Donnelly, 465 U. S. 668, 675–676 (1984).

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and the context in which it is situated, sets this case apart
from the countless examples of benign government recogni
tions of religion. But there is another crucial difference.
Our leaders, when delivering public addresses, often express
their blessings simultaneously in the service of God and their
constituents. Thus, when public officials deliver public
speeches, we recognize that their words are not exclusively
a transmission from the government because those oratories
have embedded within them the inherently personal views
of the speaker as an individual member of the polity.21 The
permanent placement of a textual religious display on state
property is different in kind; it amalgamates otherwise dis
cordant individual views into a collective statement of gov
ernment approval. Moreover, the message never ceases to
transmit itself to objecting viewers whose only choices are
to accept the message or to ignore the offense by averting
their gaze. Cf. Allegheny County, 492 U. S., at 664 (Ken
nedy, J., concurring in judgment in part and dissenting in
part); ante, at 695 (Thomas, J., concurring). In this sense,
although Thanksgiving Day proclamations and inaugural
speeches undoubtedly seem official, in most circumstances
they will not constitute the sort of governmental endorse
ment of religion at which the separation of church and state
is aimed.22
21 It goes without saying that the analysis differs when a listener is
coerced into listening to a prayer. See, e. g., Santa Fe Independent
School Dist., 530 U. S., at 308–312.
22 With respect to the “legislative prayers” cited approvingly by The
Chief Justice, ante, at 687–688, I reiterate my view that “the designa
tion of a member of one religious faith to serve as the sole official chaplain
of a state legislature for a period of 16 years constitutes the preference of
one faith over another in violation of the Establishment Clause.” Marsh
v. Chambers, 463 U. S. 783, 823 (1983) (Stevens, J., dissenting). Thus,
Justice Scalia and I are in agreement with respect to at least one
point—this Court’s decision in Marsh “ignor[ed] the neutrality principle”
at the heart of the Establishment Clause. McCreary County, post, at 892
(Scalia, J., dissenting).

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The plurality’s reliance on early religious statements and
proclamations made by the Founders is also problematic be
cause those views were not espoused at the Constitutional
Convention in 1787 23 nor enshrined in the Constitution’s
text. Thus, the presentation of these religious statements
as a unified historical narrative is bound to paint a mislead
ing picture. It does so here. In according deference to the
statements of George Washington and John Adams, The
Chief Justice and Justice Scalia, see ante, at 687 (plural
ity opinion); McCreary County, post, at 886, 887–888 (dissent
ing opinion), fail to account for the acts and publicly espoused
views of other influential leaders of that time. Notably ab
sent from their historical snapshot is the fact that Thomas
Jefferson refused to issue the Thanksgiving proclamations
that Washington had so readily embraced based on the argu
ment that to do so would violate the Establishment Clause.24
The Chief Justice and Justice Scalia disregard the sub
stantial debates that took place regarding the constitutional
ity of the early proclamations and acts they cite, see, e. g.,
Letter from James Madison to Edward Livingston (July 10,
1822), in 5 Founders’ Constitution 105–106 (arguing that Con
gress’ appointment of Chaplains to be paid from the National
Treasury was “not with my approbation” and was a “devia
tion” from the principle of “immunity of Religion from civil
23 See, e. g., J. Hutson, Religion and the Founding of the American Re
public 75 (1998) (noting the dearth of references to God at the Philadelphia
Convention and that many contemporaneous observers of the Convention
complained that “the Framers had unaccountably turned their backs on
the Almighty” because they “ ‘found the Constitution without any acknowl
edgement of God’ ”).
24 See Letter from Thomas Jefferson to Rev. S. Miller (Jan. 23, 1808),
in 5 The Founders’ Constitution 98 (P. Kurland & R. Lerner eds. 1987)
(hereinafter Founders’ Constitution); 11 Jefferson’s Writings 428–430
(1905); see also Lee, 505 U. S., at 623–625 (Souter, J., concurring) (docu
menting history); Lynch, 465 U. S., at 716, n. 23 (Brennan, J., dissenting)
(same).

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jurisdiction”),25 and paper over the fact that Madison more
than once repudiated the views attributed to him by many,
stating unequivocally that with respect to government’s
involvement with religion, the “ ‘tendency to a usurpation on
one side, or the other, or to a corrupting coalition or alliance
between them, will be best guarded against by an entire ab
stinence of the Government from interference, in any way
whatever, beyond the necessity of preserving public order, &
protecting each sect against trespasses on its legal rights
by others.’ ” 26
These seemingly nonconforming sentiments should come
as no surprise. Not insignificant numbers of colonists came
to this country with memories of religious persecution by
25 See also James Madison, Detached Memoranda, in 5 Founders’ Consti
tution 103–104. Madison’s letter to Livingston further argued: “There
has been another deviation from the strict principle in the Executive Proc
lamations of fasts & festivals, so far, at least, as they have spoken the
language of injunction, or have lost sight of the equality of all religious
sects in the eve of the Constitution. . . . Notwithstanding the general
progress made within the two last centuries in favour of this branch of
liberty, & the full establishment of it, in some parts of our Country, there
remains in others a strong bias towards the old error, that without some
sort of alliance or coalition between [Government] & Religion neither can
be duly supported. Such indeed is the tendency to such a coalition, and
such its corrupting influence on both the parties, that the danger cannot
be too carefully guarded [against]. . . . Every new & successful example
therefore of a perfect separation between ecclesiastical and civil matters,
is of importance. And I have no doubt that every new example, will suc
ceed, as every past one has done, in shewing that religion & [Government]
will both exist in greater purity, the less they are mixed together.” Id.,
at 105–106.
26 Religion and Politics in the Early Republic 20–21 (D. Dreisbach ed.
1996) (hereinafter Dreisbach) (quoting Letter from James Madison to Jas
per Adams (1833)). See also Letter from James Madison to Edward Liv
ingston (July 10, 1822), in 5 Founders’ Constitution 106 (“We are teaching
the world the great truth that [governments] do better without Kings &
Nobles than with them. The merit will be doubled by the other lesson
that Religion flourishes in greater purity, without than with the aid of
[government]”).

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monarchs on the other side of the Atlantic. See A. Stokes
& L. Pfeffer, Church and State in the United States 3–23
(rev. 1st. ed. 1964). Others experienced religious intoler
ance at the hands of colonial Puritans, who regrettably failed
to practice the tolerance that some of their contemporaries
preached. Engel v. Vitale, 370 U. S. 421, 427–429 (1962).
The Chief Justice and Justice Scalia ignore the
separationist impulses—in accord with the principle of
“neutrality”—that these individuals brought to the debates
surrounding the adoption of the Establishment Clause.27
Ardent separationists aside, there is another critical nu
ance lost in the plurality’s portrayal of history. Simply put,
many of the Founders who are often cited as authoritative
expositors of the Constitution’s original meaning understood
the Establishment Clause to stand for a narrower proposi
tion than the plurality, for whatever reason, is willing to ac
cept. Namely, many of the Framers understood the word
“religion” in the Establishment Clause to encompass only the
various sects of Christianity.
The evidence is compelling. Prior to the Philadelphia
Convention, the States had begun to protect “religious free
dom” in their various constitutions. Many of those provi
sions, however, restricted “equal protection” and “free ex
27 The contrary evidence cited by The Chief Justice and Justice
Scalia only underscores the obvious fact that leaders who have drafted
and voted for a text are eminently capable of violating their own rules.
The first Congress was—just as the present Congress is—capable of pass
ing unconstitutional legislation. Thus, it is no answer to say that the
Founders’ separationist impulses were “plainly rejected” simply because
the first Congress enacted laws that acknowledged God. See McCreary
County, post, at 896 (Scalia, J., dissenting). To adopt such an interpre
tive approach would misguidedly give authoritative weight to the fact that
the Congress that proposed the Fourteenth Amendment also enacted laws
that tolerated segregation, and the fact that 10 years after proposing the
First Amendment, Congress enacted the Alien and Sedition Act, which
indisputably violated our present understanding of the First Amendment.
See n. 34, infra; Lee, 505 U. S., at 626 (Souter, J., concurring).

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ercise” to Christians, and invocations of the divine were
commonly understood to refer to Christ.28 That historical
background likely informed the Framers’ understanding of
the First Amendment. Accordingly, one influential thinker
wrote of the First Amendment that “ ‘[t]he meaning of the
term “establishment” in this amendment unquestionably is,
the preference and establishment given by law to one sect of
Christians over every other.’ ” Jasper Adams, The Relation
of Christianity to Civil Government in the United States
(Feb. 13, 1833) (quoted in Dreisbach 16). That definition
tracked the understanding of the text Justice Story adopted
in his famous Commentaries, in which he wrote that the
“real object” of the Clause was
“not to countenance, much less to advance Mahometan
ism, or Judaism, or infidelity, by prostrating Christian
ity; but to exclude all rivalry among Christian sects, and
to prevent any national ecclesiastical establishment,
which should give to an hierarchy the exclusive patron
age of the national government. It thus sought to cut
off the means of religious persecution, (the vice and pest
of former ages,) and the power of subverting the rights
of conscience in matters of religion, which had been
trampled upon almost from the days of the Apostles to
the present age.” J. Story, Commentaries on the Con
stitution of the United States § 991, p. 701 (R. Rotunda &
J. Nowak eds. 1987) (hereinafter Story); see also Wal
lace, 472 U. S., at 52–55, and n. 36.29
28 See, e. g., Strang, The Meaning of “Religion” in the First Amendment,
40 Duquesne L. Rev. 181, 220–223 (2002).
29 Justice Story wrote elsewhere that “ ‘Christianity is indispensable to
the true interests & solid foundations of all free governments. I
distinguish . . . between the establishment of a particular sect, as the
Religion of the State, & the Establishment of Christianity itself, without
any preference of any particular form of it. I know not, indeed, how any
deep sense of moral obligation or accountableness can be expected to pre
vail in the community without a firm persuasion of the great Christian

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Along these lines, for nearly a century after the founding,
many accepted the idea that America was not just a reli
gious Nation, but “a Christian nation.” Church of Holy
Trinity v. United States, 143 U. S. 457, 471 (1892).30
The original understanding of the type of “religion” that
qualified for constitutional protection under the Establish
ment Clause likely did not include those followers of Juda
ism and Islam who are among the preferred “monotheistic”
religions Justice Scalia has embraced in his McCreary
County opinion. See post, at 893–894 (dissenting opinion).31
Truths.’ ” Letter to Jasper Adams (May 14, 1833) (quoted in Dreis
bach 19).
30 See 143 U. S., at 471 (“ ‘[W]e are a Christian people, and the morality
of the country is deeply ingrafted upon Christianity, and not upon the
doctrines or worship of . . . imposters’ ” (quoting People v. Ruggles, 8
Johns. 290, 295 (N. Y. 1811))); see also Vidal v. Philadelphia, 2 How. 127,
198–199 (1844). These views should not be read as those of religious zeal
ots. Chief Justice Marshall himself penned the historical genesis of the
Court’s assertion that our “institutions presuppose a Supreme Being,” see
Zorach, 343 U. S., at 313, writing that the “ ‘American population is en
tirely Christian, & with us, Christianity & Religion are identified. It
would be strange, indeed, if with such a people, our institutions did not
presuppose Christianity, & did not often refer to it, & exhibit relations
with it,’ ” Letter from John Marshall to Jasper Adams (May 9, 1833)
(quoted in Dreisbach 18–19). Accord, Story § 988, at 700 (“[A]t the time
of the adoption of the constitution, . . . the general, if not the universal,
sentiment in America was, that Christianity ought to receive encourage
ment from the state . . . ”).
31 Justice Scalia’s characterization of this conclusion as nothing more
than my own personal “assurance” is misleading to say the least. Mc-
Creary County, post, at 898. Reliance on our Nation’s early constitutional
scholars is common in this Court’s opinions. In particular, the author of
the plurality once noted that “Joseph Story, a Member of this Court from
1811 to 1845, and during much of that time a professor at the Harvard
Law School, published by far the most comprehensive treatise on the
United States Constitution that had then appeared.” Wallace, 472 U. S.,
at 104 (Rehnquist, J., dissenting). And numerous opinions of this Court,
including two notable opinions authored by Justice Scalia, have seen it
fit to give authoritative weight to Joseph Story’s treatise when interpret
ing other constitutional provisions. See, e. g., United States v. Gaudin,

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The inclusion of Jews and Muslims inside the category of
constitutionally favored religions surely would have shocked
Chief Justice Marshall and Justice Story. Indeed, Justice
Scalia is unable to point to any persuasive historical evi
dence or entrenched traditions in support of his decision to
give specially preferred constitutional status to all monothe
istic religions. Perhaps this is because the history of the
Establishment Clause’s original meaning just as strongly
supports a preference for Christianity as it does a preference
for monotheism. Generic references to “God” hardly consti
tute evidence that those who spoke the word meant to be
inclusive of all monotheistic believers; nor do such references
demonstrate that those who heard the word spoken under
stood it broadly to include all monotheistic faiths. See
supra, at 726–727. Justice Scalia’s inclusion of Judaism
and Islam is a laudable act of religious tolerance, but it is
one that is unmoored from the Constitution’s history and
text, and moreover one that is patently arbitrary in its inclu
sion of some, but exclusion of other (e. g., Buddhism), widely
practiced non-Christian religions. See supra, at 719, and
n. 18 (noting that followers of Buddhism nearly equal the
number of Americans who follow Islam). Given the original
understanding of the men who championed our “Christian
nation”—men who had no cause to view anti-Semitism or
contempt for atheists as problems worthy of civic concern—
one must ask whether Justice Scalia “has not had the
courage (or the foolhardiness) to apply [his originalism] prin
ciple consistently.” McCreary County, post, at 890.
Indeed, to constrict narrowly the reach of the Establish
ment Clause to the views of the Founders would lead to more
than this unpalatable result; it would also leave us with an
unincorporated constitutional provision—in other words, one
that limits only the federal establishment of “a national reli
gion.” See Elk Grove Unified School Dist. v. Newdow, 542
515 U. S. 506, 510–511 (1995) (Fifth Amendment); Harmelin v. Michigan,
501 U. S. 957, 981–982 (1991) (Eighth Amendment).

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U. S. 1, 45, 50, 51 (2004) (Thomas, J., concurring in judg
ment); cf. A. Amar, The Bill of Rights 36–39 (1998). Under
this view, not only could a State constitutionally adorn all of
its public spaces with crucifixes or passages from the New
Testament, it would also have full authority to prescribe the
teachings of Martin Luther or Joseph Smith as the official
state religion. Only the Federal Government would be pro
hibited from taking sides (and only then as between Chris
tian sects).
A reading of the First Amendment dependent on either
of the purported original meanings expressed above would
eviscerate the heart of the Establishment Clause. It would
replace Jefferson’s “wall of separation” with a perverse wall
of exclusion—Christians inside, non-Christians out. It
would permit States to construct walls of their own choos
ing—Baptists inside, Mormons out; Jewish Orthodox inside,
Jewish Reform out. A Clause so understood might be faith
ful to the expectations of some of our Founders, but it is
plainly not worthy of a society whose enviable hallmark over
the course of two centuries has been the continuing expan
sion of religious pluralism and tolerance. Cf. Abington, 374
U. S., at 214; Zelman v. Simmons-Harris, 536 U. S. 639, 720,
723 (2002) (Breyer, J., dissenting).
Unless one is willing to renounce over 65 years of Estab
lishment Clause jurisprudence and cross back over the incor
poration bridge, see Cantwell v. Connecticut, 310 U. S. 296,
303 (1940), appeals to the religiosity of the Framers ring hol
low.32 But even if there were a coherent way to embrace
32 Justice Scalia’s answer—that incorporation does not empty “the in
corporated provisions of their original meaning,” McCreary County, post,
at 898—ignores the fact that the Establishment Clause has its own unique
history. There is no evidence, for example, that incorporation of the Con
frontation Clause ran contrary to the core of the Clause’s original under
standing. There is, however, some persuasive evidence to this effect re
garding the Establishment Clause. See Elk Grove Unified School Dist.
v. Newdow, 542 U. S. 1, 49 (2004) (Thomas, J., concurring in judgment)
(arguing that the Clause was originally understood to be a “federalism

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incorporation with one hand while steadfastly abiding by the
Founders’ purported religious views on the other, the prob
lem of the selective use of history remains. As the widely
divergent views espoused by the leaders of our founding era
plainly reveal, the historical record of the preincorporation
Establishment Clause is too indeterminate to serve as an
interpretive North Star.33
It is our duty, therefore, to interpret the First Amend
ment’s command that “Congress shall make no law respect
ing an establishment of religion” not by merely asking what
those words meant to observers at the time of the founding,
but instead by deriving from the Clause’s text and history
the broad principles that remain valid today. As we have
said in the context of statutory interpretation, legislation
“often [goes] beyond the principal evil [at which the statute
was aimed] to cover reasonably comparable evils, and it is
ultimately the provisions of our laws rather than the princi
provision” intended to prevent “Congress from interfering with state es
tablishments”). It is this unique history, not incorporation writ large,
that renders incoherent the postincorporation reliance on the Establish
ment Clause’s original understanding.
Justice Thomas, at least, has faced this problem head on. See id., at
45 (opinion concurring in judgment). But even if the decision to incorpo
rate the Establishment Clause was misguided, it is at this point unwise to
reverse course given the weight of precedent that would have to be cast
aside to reach the intended result. See B. Cardozo, The Nature of the
Judicial Process 149 (1921) (“[T]he labor of judges would be increased al
most to the breaking point if every past decision could be reopened in
every case”).
33 See Lee, 505 U. S., at 626 (Souter, J., concurring) (“[A]t best, . . . the
Framers simply did not share a common understanding of the Establish
ment Clause,” and at worst, their overtly religious proclamations show
“that they . . . could raise constitutional ideals one day and turn their
backs on them the next”); Lynch, 465 U. S., at 716 (Brennan, J., dissenting)
(same); cf. Feldman, Intellectual Origins of the Establishment Clause, 77
N. Y. U. L. Rev. 346, 404–405 (2002) (noting that, for the Framers, “the
term ‘establishment’ was a contested one” and that the word “was used in
both narrow and expansive ways in the debates of the time”).

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pal concerns of our legislators by which we are governed.”
Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75,
79 (1998). In similar fashion, we have construed the Equal
Protection Clause of the Fourteenth Amendment to prohibit
segregated schools, see Brown v. Board of Education, 349
U. S. 294 (1955), even though those who drafted that Amend
ment evidently thought that separate was not unequal.34
We have held that the same Amendment prohibits discrimi
nation against individuals on account of their gender, Fron
tiero v. Richardson, 411 U. S. 677 (1973), despite the fact that
the contemporaries of the Amendment “doubt[ed] very much
whether any action of a State not directed by way of discrim
ination against the negroes as a class, or on account of their
race, will ever be held to come within the purview of this
provision,” Slaughter-House Cases, 16 Wall. 36, 81 (1873).
And we have construed “evolving standards of decency”
to make impermissible practices that were not considered
“cruel and unusual” at the founding. See Roper v. Sim
mons, 543 U. S. 551, 587 (2005) (Stevens, J., concurring).
To reason from the broad principles contained in the Con
stitution does not, as Justice Scalia suggests, require us
to abandon our heritage in favor of unprincipled expressions
of personal preference. The task of applying the broad prin
ciples that the Framers wrote into the text of the First
Amendment is, in any event, no more a matter of personal
preference than is one’s selection between two (or more)
sides in a heated historical debate. We serve our constitu
tional mandate by expounding the meaning of constitutional
provisions with one eye toward our Nation’s history and the
other fixed on its democratic aspirations. See McCulloch v.
34 See Hovenkamp, The Cultural Crises of the Fuller Court, 104 Yale
L. J. 2309, 2337–2342 (1995) (“Equal protection had not been identified with
social integration when the Fourteenth Amendment was drafted in 1866,
nor when it was ratified in 1868, nor when Plessy [v. Ferguson, 163 U. S.
537,] was decided in 1896”); see also 1 L. Tribe, American Constitutional
Law § 1–14, pp. 54–55, and n. 19 (3d ed. 2000) (collecting scholarship).

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Maryland, 4 Wheat. 316, 407, 415 (1819) (“[W]e must never
forget, that it is a constitution we are expounding” that is
intended to “endure for ages to come, and, consequently, to
be adapted to the various crises of human affairs”). Consti
tutions, after all,
“are not ephemeral enactments, designed to meet pass
ing occasions. They are, to use the words of Chief
Justice Marshall, ‘designed to approach immortality as
nearly as human institutions can approach it.’ The fu
ture is their care and provision for events of good and
bad tendencies of which no prophecy can be made. In
the application of a constitution, therefore, our contem
plation cannot be only of what has been but of what may
be. Under any other rule a constitution would indeed
be as easy of application as it would be deficient in effi
cacy and power. Its general principles would have little
value and be converted by precedent into impotent and
lifeless formulas.” Weems v. United States, 217 U. S.
349, 373 (1910).
The principle that guides my analysis is neutrality.35 The
basis for that principle is firmly rooted in our Nation’s
35 Justice Thomas contends that the Establishment Clause cannot in
clude such a neutrality principle because the Clause reaches only the
governmental coercion of individual belief or disbelief. Ante, at 693–694
(concurring opinion). In my view, although actual religious coercion is
undoubtedly forbidden by the Establishment Clause, that cannot be the
full extent of the provision’s reach. Jefferson’s “wall” metaphor and his
refusal to issue Thanksgiving proclamations, see supra, at 724, would have
been nonsensical if the Clause reached only direct coercion. Further,
under the “coercion” view, the Establishment Clause would amount to
little more than a replica of our compelled speech doctrine, see, e. g., West
Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 639 (1943), with a religious
flavor. A Clause so interpreted would not prohibit explicit state endorse
ments of religious orthodoxies of particular sects, actions that lie at the
heart of what the Clause was meant to regulate. The government could,
for example, take out television advertisements lauding Catholicism as the
only pure religion. Under the reasoning endorsed by Justice Thomas,

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history and our Constitution’s text. I recognize that the
requirement that government must remain neutral between
religion and irreligion would have seemed foreign to some of
the Framers; so too would a requirement of neutrality be
tween Jews and Christians. But cf. Letter from George
Washington to the Hebrew Congregation in Newport, R. I.
(Aug. 18, 1790), in 6 Papers of George Washington 284, 285
(D. Twohig ed. 1996). Fortunately, we are not bound by the
Framers’ expectations—we are bound by the legal principles
they enshrined in our Constitution. Story’s vision that
States should not discriminate between Christian sects has
as its foundation the principle that government must remain
neutral between valid systems of belief. As religious plural
ism has expanded, so has our acceptance of what constitutes
valid belief systems. The evil of discriminating today
against atheists, “polytheists[,] and believers in unconcerned
deities,” McCreary County, post, at 893 (Scalia, J., dissent
ing), is in my view a direct descendent of the evil of discrimi
nating among Christian sects. The Establishment Clause
those programs would not be coercive because the viewer could simply
turn off the television or ignore the ad. See ante, at 694 (“The mere
presence of the monument . . . involves no coercion” because the passerby
“need not stop to read it or even to look at it”).
Further, the notion that the application of a “coercion” principle would
somehow lead to a more consistent jurisprudence is dubious. Enshrining
coercion as the Establishment Clause touchstone fails to eliminate the dif
ficult judgment calls regarding “the form that coercion must take.” Mc-
Creary County, post, at 909 (Scalia, J., dissenting). Coercion may seem
obvious to some, while appearing nonexistent to others. Compare
Santa Fe Independent School Dist., 530 U. S., at 312, with Lee, 505 U. S.,
at 642 (Scalia, J., dissenting). It may be a legal requirement or an effect
that is indirectly inferred from a variety of factors. See, e. g., Engel v.
Vitale, 370 U. S. 421, 431 (1962) (“When the power, prestige and financial
support of government is placed behind a particular religious belief, the
indirect coercive pressure upon religious minorities to conform to the pre
vailing officially approved religion is plain”). In short, “reasonable people
could, and no doubt would, argue about whether coercion existed in a
particular situation.” Feldman, 77 N. Y. U. L. Rev., at 415.

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thus forbids it and, in turn, prohibits Texas from displaying
the Ten Commandments monument the plurality so casu
ally affirms.
IV
The Eagles may donate as many monuments as they
choose to be displayed in front of Protestant churches, benev
olent organizations’ meeting places, or on the front lawns of
private citizens. The expurgated text of the King James
version of the Ten Commandments that they have crafted is
unlikely to be accepted by Catholic parishes, Jewish syna
gogues, or even some Protestant denominations, but the
message they seek to convey is surely more compatible with
church property than with property that is located on the
government side of the metaphorical wall.
The judgment of the Court in this case stands for the prop
osition that the Constitution permits governmental displays
of sacred religious texts. This makes a mockery of the con
stitutional ideal that government must remain neutral be
tween religion and irreligion. If a State may endorse a par
ticular deity’s command to “have no other gods before me,”
it is difficult to conceive of any textual display that would
run afoul of the Establishment Clause.
The disconnect between this Court’s approval of Texas’
monument and the constitutional prohibition against prefer
ring religion to irreligion cannot be reduced to the exercise
of plotting two adjacent locations on a slippery slope. Cf.
ante, at 704 (Breyer, J., concurring in judgment). Rather,
it is the difference between the shelter of a fortress and ex
posure to “the winds that would blow” if the wall were al
lowed to crumble. See TVA v. Hill, 437 U. S. 153, 195 (1978)
(internal quotation marks omitted). That wall, however im
perfect, remains worth preserving.
I respectfully dissent.
[Appendix to opinion of Stevens, J., follows this page.]

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Justice O’Connor, dissenting.
For essentially the reasons given by Justice Souter, post
this page (dissenting opinion), as well as the reasons given
in my concurrence in McCreary County v. American Civil
Liberties Union of Ky., post, p. 881, I respectfully dissent.
Justice Souter, with whom Justice Stevens and Jus
tice Ginsburg join, dissenting.
Although the First Amendment’s Religion Clauses have
not been read to mandate absolute governmental neutrality
toward religion, cf. Sherbert v. Verner, 374 U. S. 398 (1963),
the Establishment Clause requires neutrality as a general
rule, e. g., Everson v. Board of Ed. of Ewing, 330 U. S. 1, 18
(1947), and thus expresses Madison’s condemnation of “em
ploy[ing] Religion as an engine of Civil policy,” Memorial and
Remonstrance Against Religious Assessments, 2 Writings of
James Madison 183, 187 (G. Hunt ed. 1901). A governmental
display of an obviously religious text cannot be squared with
neutrality, except in a setting that plausibly indicates that
the statement is not placed in view with a predominant pur
pose on the part of government either to adopt the religious
message or to urge its acceptance by others.
Until today, only one of our cases addressed the constitu
tionality of posting the Ten Commandments, Stone v. Gra
ham, 449 U. S. 39, 41–42 (1980) (per curiam). A Kentucky
statute required posting the Commandments on the walls of
public school classrooms, and the Court described the State’s
purpose (relevant under the tripartite test laid out in Lemon
v. Kurtzman, 403 U. S. 602 (1971)) as being at odds with the
obligation of religious neutrality.
“The pre-eminent purpose for posting the Ten Com
mandments on schoolroom walls is plainly religious in
nature. The Ten Commandments are undeniably a sa
cred text in the Jewish and Christian faiths, and no leg
islative recitation of a supposed secular purpose can
blind us to that fact. The Commandments do not con

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fine themselves to arguably secular matters, such as
honoring one’s parents, killing or murder, adultery,
stealing, false witness, and covetousness. Rather, the
first part of the Commandments concerns the religious
duties of believers: worshipping the Lord God alone,
avoiding idolatry, not using the Lord’s name in vain, and
observing the Sabbath Day.” 449 U. S., at 41–42 (foot
note and citations omitted).
What these observations underscore are the simple realities
that the Ten Commandments constitute a religious state
ment, that their message is inherently religious, and that the
purpose of singling them out in a display is clearly the same.1
Thus, a pedestrian happening upon the monument at issue
here needs no training in religious doctrine to realize that
the statement of the Commandments, quoting God himself,
proclaims that the will of the divine being is the source of
obligation to obey the rules, including the facially secular
ones. In this case, moreover, the text is presented to give
particular prominence to the Commandments’ first sectarian
1 The clarity of the religious manifestation in Stone was unaffected by
the State’s effort to obscure it: the Kentucky statute that mandated post
ing the Commandments in classrooms also required the addition to every
posting of a notation reading, “[t]he secular application of the Ten Com
mandments is clearly seen in its adoption as the fundamental legal code of
Western Civilization and the Common Law of the United States.” 449
U. S., at 39–40, n. 1 (internal quotation marks omitted).
In the present case, the religious purpose was evident on the part of
the donating organization. When the Fraternal Order of Eagles, the
group that gave the monument to the State of Texas, donated identical
monuments to other jurisdictions, it was seeking to impart a religious
message. See Adland v. Russ, 307 F. 3d 471, 475 (CA6 2002) (quoting the
Eagles’ statement in a letter written to Kentucky when a monument was
donated to that Commonwealth: “ ‘Most of today’s younger generation
either have not seen the Ten Commandments or have not been taught
them. In our opinion the youth of today is in dire need of learning the
simple laws of God . . . ’ ”). Accordingly, it was not just the terms of the
moral code, but the proclamation that the terms of the code were enjoined
by God, that the Eagles put forward in the monuments they donated.

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reference, “I am the Lord thy God.” That proclamation is
centered on the stone and written in slightly larger letters
than the subsequent recitation. To ensure that the religious
nature of the monument is clear to even the most casual pas
serby, the word “Lord” appears in all capital letters (as does
the word “am”), so that the most eye-catching segment of
the quotation is the declaration “I AM the LORD thy God.”
App. to Pet. for Cert. 21. What follows, of course, are the
rules against other gods, graven images, vain swearing, and
Sabbath breaking. And the full text of the fifth Command
ment puts forward filial respect as a condition of long life in
the land “which the Lord thy God giveth thee.” See ibid.
These “words . . . make [the] religious meaning unmistakably
clear.” County of Allegheny v. American Civil Liberties
Union, Greater Pittsburgh Chapter, 492 U. S. 573, 598 (1989).
To drive the religious point home, and identify the mes
sage as religious to any viewer who failed to read the text,
the engraved quotation is framed by religious symbols: two
tablets with what appears to be ancient script on them, two
Stars of David, and the superimposed Greek letters Chi and
Rho as the familiar monogram of Christ. Nothing on the
monument, in fact, detracts from its religious nature,2 see
ibid. (“Here, unlike in Lynch [v. Donnelly, 465 U. S. 668
(1984)], nothing in the context of the display detracts from
the cre` che’s religious message”), and the plurality does not
suggest otherwise. It would therefore be difficult to miss
the point that the government of Texas 3 is telling everyone
2 That the monument also surrounds the text of the Commandments
with various American symbols (notably the U. S. flag and a bald eagle)
only underscores the impermissibility of Texas’s actions: by juxtaposing
these patriotic symbols with the Commandments and other religious signs,
the monument sends the message that being American means being reli
gious (and not just being religious but also subscribing to the Command
ments, i. e., practicing a monotheistic religion).
3 There is no question that the State in its own right is broadcasting the
religious message. When Texas accepted the monument from the Eagles,
the state legislature, aware that the Eagles “for the past several years

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who sees the monument to live up to a moral code because
God requires it, with both code and conception of God being
rightly understood as the inheritances specifically of Jews
and Christians. And it is likewise unsurprising that the
District Court expressly rejected Texas’s argument that the
State’s purpose in placing the monument on the Capitol
grounds was related to the Commandments’ role as “part of
the foundation of modern secular law in Texas and else
where.” App. to Pet. for Cert. 32.
The monument’s presentation of the Commandments with
religious text emphasized and enhanced stands in contrast
to any number of perfectly constitutional depictions of them,
the frieze of our own Courtroom providing a good example,
where the figure of Moses stands among history’s great law
givers. While Moses holds the tablets of the Command
ments showing some Hebrew text, no one looking at the lines
of figures in marble relief is likely to see a religious purpose
behind the assemblage or take away a religious message
from it. Only one other depiction represents a religious
leader, and the historical personages are mixed with symbols
of moral and intellectual abstractions like Equity and Au
thority. See County of Allegheny, supra, at 652 (Stevens,
J., concurring in part and dissenting in part). Since Moses
enjoys no especial prominence on the frieze, viewers can
readily take him to be there as a lawgiver in the company of
other lawgivers; and the viewers may just as naturally see
the tablets of the Commandments (showing the later ones,
forbidding things like killing and theft, but without the di
vine preface) as background from which the concept of law
have placed across the country . . . parchment plaques and granite mono
liths of the Ten Commandments [in order] to promote youth morality and
to help stop the alarming increase in delinquency,” resolved “that the Fra
ternal Order of the Eagles of the State of Texas be commended and con
gratulated for its efforts and contributions in combating juvenile delin
quency throughout our nation.” App. 97. The State, then, expressly
approved of the Eagles’ proselytizing, which it made on its own.

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emerged, ultimately having a secular influence in the history
of the Nation. Government may, of course, constitutionally
call attention to this influence, and may post displays or erect
monuments recounting this aspect of our history no less than
any other, so long as there is a context and that context is
historical. Hence, a display of the Commandments accompa
nied by an exposition of how they have influenced modern
law would most likely be constitutionally unobjectionable.4
4 For similar reasons, the other displays of the Commandments that the
plurality mentions, ante, at 688–689, do not run afoul of the Establishment
Clause. The statues of Moses and St. Paul in the Main Reading Room of
the Library of Congress are 2 of 16 set in close proximity, statues that
“represent men illustrious in the various forms of thought and activ
ity . . . .” The Library of Congress: The Art and Architecture of the
Thomas Jefferson Building 127 (J. Cole and H. Reeds eds. 1997). Moses
and St. Paul represent religion, while the other 14 (a group that includes
Beethoven, Shakespeare, Michelangelo, Columbus, and Plato) represent
the nonreligious categories of philosophy, art, history, commerce, science,
law, and poetry. Ibid. Similarly, the sculpture of the woman beside the
Decalogue in the Main Reading Room is 1 of 8 such figures “represent[ing]
eight characteristic features of civilized life and thought,” the same 8 fea
tures (7 of them nonreligious) that Moses, St. Paul, and the rest of the 16
statues represent. Id., at 125.
The inlay on the floor of the National Archives Building is one of
four such discs, the collective theme of which is not religious. Rather,
the discs “symbolize the various types of Government records that
were to come into the National Archives.” Letter from Judith A.
Koucky, Archivist, Records Control Section, to Catherine Millard (Oct. 1,
2003), http://www.christianheritagemins.org/articles/Ten_Commandments/
Letter_archivist.htm (as visited June 16, 2005, and available in Clerk of
Court’s case file). (The four categories are war and defense, history, jus
tice, and legislation. Each disc is paired with a winged figure; the disc
containing the depiction of the Commandments, a depiction that, notably,
omits the Commandments’ text, is paired with a figure representing legis
lation. Ibid.)
As for Moses’s “prominen[t] featur[ing] in the Chamber of the United
States House of Representatives,” ante, at 689 (plurality opinion), Moses
is actually 1 of 23 portraits encircling the House Chamber, each approxi
mately the same size, having no religious theme. The portraits depict
“men noted in history for the part they played in the evolution of what

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And the Decalogue could, as Stone suggested, be integrated
constitutionally into a course of study in public schools. 449
U. S., at 42.5
Texas seeks to take advantage of the recognition that vis
ual symbol and written text can manifest a secular purpose
in secular company, when it argues that its monument (like
Moses in the frieze) is not alone and ought to be viewed as
only 1 among 17 placed on the 22 acres surrounding the State
Capitol. Texas, indeed, says that the Capitol grounds are
like a museum for a collection of exhibits, the kind of setting
that several Members of the Court have said can render the
exhibition of religious artifacts permissible, even though in
other circumstances their display would be seen as meant to
convey a religious message forbidden to the State. County
of Allegheny, 492 U. S., at 595 (opinion of Blackmun, J., joined
by Stevens, J.); Lynch v. Donnelly, 465 U. S. 668, 692 (1984)
(O’Connor, J., concurring). So, for example, the Govern
ment of the United States does not violate the Establishment
Clause by hanging Giotto’s Madonna on the wall of the Na
tional Gallery.
But 17 monuments with no common appearance, history,
or esthetic role scattered over 22 acres is not a museum,
and anyone strolling around the lawn would surely take each
memorial on its own terms without any dawning sense that
some purpose held the miscellany together more coherently
has become American law.” Art in the United States Capitol, House Doc.
No. 94–660, p. 282 (1978). More importantly for purposes of this case,
each portrait consists only of the subject’s face; the Ten Commandments
appear nowhere in Moses’s portrait.
5 Similarly permissible, though obviously of a different character, are
laws that can be traced back to the Commandments (even the more reli
gious ones) but are currently supported by nonreligious considerations.
See McCreary County v. American Civil Liberties Union of Ky., post, at
861 (opinion of the Court) (noting that in McGowan v. Maryland, 366 U. S.
420 (1961), the Court “upheld Sunday closing statutes on practical, secular
grounds after finding that the government had forsaken the religious pur
poses behind centuries-old predecessor laws”).

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than fortuity and the edge of the grass. One monument ex
presses admiration for pioneer women. One pays respect to
the fighters of World War II. And one quotes the God of
Abraham whose command is the sanction for moral law.
The themes are individual grit, patriotic courage, and God as
the source of Jewish and Christian morality; there is no com
mon denominator. In like circumstances, we rejected an ar
gument similar to the State’s, noting in County of Allegheny
that “[t]he presence of Santas or other Christmas decorations
elsewhere in the . . . [c]ourthouse, and of the nearby gallery
forum, fail to negate the [cre` che’s] endorsement effect. . . .
The record demonstrates . . . that the cre` che, with its floral
frame, was its own display distinct from any other decora
tions or exhibitions in the building.” 492 U. S., at 598–599,
n. 48.6
If the State’s museum argument does nothing to blunt the
religious message and manifestly religious purpose behind
it, neither does the plurality’s reliance on generalities culled
from cases factually different from this one. E. g., ante, at
687 (“We have acknowledged, for example, that ‘religion has
been closely identified with our history and government,’
School Dist. of Abington Township v. Schempp, 374 U. S., at
212, and that ‘[t]he history of man is inseparable from the
6 It is true that the Commandments monument is unlike the display of
the Commandments considered in the other Ten Commandments case we
decide today, McCreary County. There the Commandments were posted
at the behest of the county in the first instance, whereas the State of
Texas received the monument as a gift from the Eagles, which apparently
conceived of the donation at the suggestion of a movie producer bent on
promoting his commercial film on the Ten Commandments, Books v. Elk
hart, 235 F. 3d 292, 294–295 (CA7 2000), cert. denied, 532 U. S. 1058 (2001).
But this distinction fails to neutralize the apparent expression of govern
mental intent to promote a religious message: although the nativity scene
in County of Allegheny was donated by the Holy Name Society, we con
cluded that “[n]o viewer could reasonably think that [the scene] occupies
[its] location [at the seat of county government] without the support and
approval of the government.” 492 U. S., at 599–600.

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history of religion,’ Engel v. Vitale, 370 U. S. 421, 434
(1962)”). In fact, it is not until the end of its opinion that
the plurality turns to the relevant precedent of Stone, a case
actually dealing with a display of the Decalogue.
When the plurality finally does confront Stone, it tries to
avoid the case’s obvious applicability by limiting its holding
to the classroom setting. The plurality claims to find au
thority for limiting Stone’s reach this way in the opinion’s
citations of two school-prayer cases, School Dist. of Abing
ton Township v. Schempp, 374 U. S. 203 (1963), and Engel v.
Vitale, 370 U. S. 421 (1962). But Stone relied on those cases
for widely applicable notions, not for any concept specific to
schools. The opinion quoted Schempp’s statements that “it
is no defense to urge that the religious practices here may be
relatively minor encroachments on the First Amendment,”
Schempp, supra, at 225, quoted in Stone, 449 U. S., at 42; and
that “the place of the Bible as an instrument of religion can
not be gainsaid,” Schempp, supra, at 224, quoted in Stone,
supra, at 41, n. 3. And Engel was cited to support the prop
osition that the State was responsible for displaying the
Commandments, even though their framed, printed texts
were bought with private subscriptions. Stone, supra, at
42 (“[T]he mere posting of the [Commandments] under the
auspices of the legislature provides the official support of the
State Government that the Establishment Clause prohibits”
(ellipsis and internal quotation marks omitted)). Thus, the
schoolroom was beside the point of the citations, and that is
presumably why the Stone Court failed to discuss the educa
tional setting, as other opinions had done when school was
significant. E. g., Edwards v. Aguillard, 482 U. S. 578, 584
(1987). Stone did not, for example, speak of children’s im
pressionability or their captivity as an audience in a school
class. In fact, Stone’s reasoning reached the classroom only
in noting the lack of support for the claim that the State had
brought the Commandments into schools in order to “inte
grat[e] [them] into the school curriculum.” 449 U. S., at 42.

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Souter, J., dissenting
Accordingly, our numerous prior discussions of Stone have
never treated its holding as restricted to the classroom.7
Nor can the plurality deflect Stone by calling the Texas
monument “a far more passive use of [the Decalogue] than
was the case in Stone, where the text confronted elementary
school students every day.” Ante, at 691. Placing a monu
ment on the ground is not more “passive” than hanging a
sheet of paper on a wall when both contain the same text to
be read by anyone who looks at it. The problem in Stone
was simply that the State was putting the Commandments
there to be seen, just as the monument’s inscription is there
for those who walk by it.
To be sure, Kentucky’s compulsory-education law meant
that the schoolchildren were forced to see the display every
day, whereas many see the monument by choice, and those
who customarily walk the Capitol grounds can presumably
avoid it if they choose. But in my judgment (and under our
often inexact Establishment Clause jurisprudence, such mat
ters often boil down to judgment, see ante, at 700 (Breyer,
J., concurring in judgment)), this distinction should make no
difference. The monument in this case sits on the grounds
of the Texas State Capitol. There is something significant
in the common term “statehouse” to refer to a state capitol
building: it is the civic home of every one of the State’s citi
zens. If neutrality in religion means something, any citizen
should be able to visit that civic home without having to
confront religious expressions clearly meant to convey an of
ficial religious position that may be at odds with his own
7 In any event, the fact that we have been, as the plurality says, “ ‘partic
ularly vigilant in monitoring compliance with the Establishment Clause in
elementary and secondary schools,’ ” ante, at 691, does not of course mean
that anything goes outside the schoolhouse. As cases like County of Alle
gheny and Lynch v. Donnelly, 465 U. S. 668 (1984), illustrate, we have also
closely scrutinized government displays of religious symbols. And for
reasons discussed in the text, the Texas monument cannot survive even a
relaxed level of scrutiny.

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VAN ORDEN v. PERRY
Souter, J., dissenting
religion, or with rejection of religion. See County of Alle
gheny, 492 U. S., at 626 (O’Connor, J., concurring in part and
concurring in judgment) (“I agree that the cre` che displayed
on the Grand Staircase of the Allegheny County Courthouse,
the seat of county government, conveys a message to nonad
herents of Christianity that they are not full members of the
political community . . . . The display of religious symbols
in public areas of core government buildings runs a special
risk of making religion relevant, in reality or public percep
tion, to status in the political community” (alteration and in
ternal quotation marks omitted)).
Finally, though this too is a point on which judgment will
vary, I do not see a persuasive argument for constitutionality
in the plurality’s observation that Van Orden’s lawsuit comes
“[f]orty years after the monument’s erection . . . ,” ante, at
682, an observation that echoes the State’s contention that
one fact cutting in its favor is that “the monument had stood
in Austin . . . for some forty years without generating any
controversy or litigation,” Brief for Respondents 25. It is
not that I think the passage of time is necessarily irrele
vant in Establishment Clause analysis. We have approved
framing-era practices because they must originally have
been understood as constitutionally permissible, e. g., Marsh
v. Chambers, 463 U. S. 783 (1983) (legislative prayer), and we
have recognized that Sunday laws have grown recognizably
secular over time, McGowan v. Maryland, 366 U. S. 420
(1961). There is also an analogous argument, not yet evalu
ated, that ritualistic religious expression can become so
numbing over time that its initial Establishment Clause vio
lation becomes at some point too diminished for notice. But
I do not understand any of these to be the State’s argument,
which rather seems to be that 40 years without a challenge
shows that as a factual matter the religious expression is too
tepid to provoke a serious reaction and constitute a violation.
Perhaps, but the writer of Exodus chapter 20 was not luke
warm, and other explanations may do better in accounting

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Souter, J., dissenting
for the late resort to the courts. Suing a State over religion
puts nothing in a plaintiff ’s pocket and can take a great deal
out, and even with volunteer litigators to supply time and
energy, the risk of social ostracism can be powerfully deter
rent. I doubt that a slow walk to the courthouse, even one
that took 40 years, is much evidentiary help in applying the
Establishment Clause.
I would reverse the judgment of the Court of Appeals.

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OCTOBER TERM, 2004
Syllabus
TOWN OF CASTLE ROCK, COLORADO v. GONZALES,
individually and as next best friend of her deceased
minor children, GONZALES et al.
certiorari to the united states court of appeals for
the tenth circuit
No. 04–278. Argued March 21, 2005—Decided June 27, 2005
Respondent filed this suit under 42 U. S. C. § 1983 alleging that petitioner
violated the Fourteenth Amendment’s Due Process Clause when its po
lice officers, acting pursuant to official policy or custom, failed to respond
to her repeated reports over several hours that her estranged husband
had taken their three children in violation of her restraining order
against him. Ultimately, the husband murdered the children. The
District Court granted the town’s motion to dismiss, but an en banc
majority of the Tenth Circuit reversed, finding that respondent had al
leged a cognizable procedural due process claim because a Colorado stat
ute established the state legislature’s clear intent to require police to
enforce restraining orders, and thus its intent that the order’s recipient
have an entitlement to its enforcement. The court therefore ruled,
among other things, that respondent had a protected property interest
in the enforcement of her restraining order.
Held: Respondent did not, for Due Process Clause purposes, have a prop
erty interest in police enforcement of the restraining order against her
husband. Pp. 755–768.
(a) The Due Process Clause’s procedural component does not protect
everything that might be described as a government “benefit”: “To have
a property interest in a benefit, a person . . . must . . . have a legitimate
claim of entitlement to it.” Board of Regents of State Colleges v. Roth,
408 U. S. 564, 577. Such entitlements are created by existing rules or
understandings stemming from an independent source such as state law.
E. g., ibid. Pp. 755–756.
(b) A benefit is not a protected entitlement if officials have discretion
to grant or deny it. See, e. g., Kentucky Dept. of Corrections v. Thomp
son, 490 U. S. 454, 462–463. It is inappropriate here to defer to the
Tenth Circuit’s determination that Colorado law gave respondent a right
to police enforcement of the restraining order. This Court therefore
proceeds to its own analysis. Pp. 756–758.
(c) Colorado law has not created a personal entitlement to enforce
ment of restraining orders. It does not appear that state law truly
made such enforcement mandatory. A well-established tradition of po

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Syllabus
lice discretion has long coexisted with apparently mandatory arrest stat
utes. Cf. Chicago v. Morales, 527 U. S. 41, 47, n. 2, 62, n. 32. Against
that backdrop, a true mandate of police action would require some
stronger indication than the Colorado statute’s direction to “use every
reasonable means to enforce a restraining order” or even to “arrest . . .
or . . . seek a warrant.” A Colorado officer would likely have some
discretion to determine that—despite probable cause to believe a
restraining order has been violated—the violation’s circumstances or
competing duties counsel decisively against enforcement in a partic
ular instance. The practical necessity for discretion is particularly
apparent in a case such as this, where the suspected violator is not
actually present and his whereabouts are unknown. In such circum
stances, the statute does not appear to require officers to arrest but only
to seek a warrant. That, however, would be an entitlement to nothing
but procedure, which cannot be the basis for a property interest.
Pp. 758–764.
(d) Even if the statute could be said to make enforcement “manda
tory,” that would not necessarily mean that respondent has an entitle
ment to enforcement. Her alleged interest stems not from common law
or contract, but only from a State’s statutory scheme. If she was given
a statutory entitlement, the Court would expect to see some indication
of that in the statute itself. Although the statute spoke of “protected
person[s]” such as respondent, it did so in connection with matters other
than a right to enforcement. Most importantly, it spoke directly to the
protected person’s power to “initiate” contempt proceedings if the order
was issued in a civil action, which contrasts tellingly with its conferral
of a power merely to “request” initiation of criminal contempt pro
ceedings—and even more dramatically with its complete silence about
any power to “request” (much less demand) that an arrest be made.
Pp. 764–766.
(e) Even were the Court to think otherwise about Colorado’s creation
of an entitlement, it is not clear that an individual entitlement to en
forcement of a restraining order could constitute a “property” interest
for due process purposes. Such a right would have no ascertainable
monetary value and would arise incidentally, not out of some new spe
cies of government benefit or service, but out of a function that govern
ment actors have always performed—arresting people when they have
probable cause. A benefit’s indirect nature was fatal to a due process
claim in O’Bannon v. Town Court Nursing Center, 447 U. S. 773, 787.
Here, as there, “[t]he simple distinction between government action that
directly affects a citizen’s legal rights . . . and action that is directed
against a third party and affects the citizen only . . . incidentally, pro

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CASTLE ROCK v. GONZALES
Opinion of the Court
vides a sufficient answer to” cases finding government-provided services
to be entitlements. Id., at 788. Pp. 766–768.
366 F. 3d 1093, reversed.
Scalia, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Kennedy, Souter, Thomas, and Breyer, JJ.,
joined. Souter, J., filed a concurring opinion, in which Breyer, J.,
joined, post, p. 769. Stevens, J., filed a dissenting opinion, in which Gins
burg, J., joined, post, p. 773.
John C. Eastman argued the cause for petitioner. With
him on the briefs were Thomas S. Rice, Eric M. Ziporin,
and Erik S. Jaffe.
John P. Elwood argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were
Acting Solicitor General Clement, Assistant Attorney Gen
eral Keisler, Michael Jay Singer, and Howard S. Scher.
Brian J. Reichel argued the cause and filed a brief for
respondent.*
Justice Scalia delivered the opinion of the Court.
We decide in this case whether an individual who has ob
tained a state-law restraining order has a constitutionally
*Briefs of amici curiae urging reversal were filed for the Denver Police
Protective Association et al. by David J. Bruno and Michael T. Lowe; and
for the International Municipal Lawyers Association et al. by Brad D.
Bailey and Kathryn L. Schroeder.
Briefs of amici curiae urging affirmance were filed for AARP by Stuart
R. Cohen, Susan Ann Silverstein, and Michael Schuster; for the American
Civil Liberties Union et al. by Caroline M. Brown, Steven R. Shapiro, and
Lenora M. Lapidus; for International Law Scholars et al. by Jennifer K.
Brown and Rhonda Copelon; for the National Association of Women Law
yers et al. by Lorelie S. Masters; for the National Black Police Association
et al. by Richard W. Smith and Joan S. Meier; for the National Coalition
Against Domestic Violence et al. by Naomi G. Beer, Libby Y. Mote, and
Michele E. Stone; for the National Network to End Domestic Violence
et al. by Fernando R. Laguarda; and for Peggy Kerns et al. by David G.
Hall and James C. Harrington.
Deanne M. Ottaviano and Janine A. Carlan filed a brief for the Family
Violence Prevention Fund et al. as amici curiae.

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protected property interest in having the police enforce the
restraining order when they have probable cause to believe
it has been violated.
I
The horrible facts of this case are contained in the com
plaint that respondent Jessica Gonzales filed in Federal Dis
trict Court. (Because the case comes to us on appeal from
a dismissal of the complaint, we assume its allegations are
true. See Swierkiewicz v. Sorema N. A., 534 U. S. 506, 508,
n. 1 (2002).) Respondent alleges that petitioner, the town of
Castle Rock, Colorado, violated the Due Process Clause of
the Fourteenth Amendment to the United States Constitu
tion when its police officers, acting pursuant to official policy
or custom, failed to respond properly to her repeated reports
that her estranged husband was violating the terms of a re
straining order.1
The restraining order had been issued by a state trial
court several weeks earlier in conjunction with respondent’s
divorce proceedings. The original form order, issued on
May 21, 1999, and served on respondent’s husband on June
4, 1999, commanded him not to “molest or disturb the peace
of [respondent] or of any child,” and to remain at least 100
yards from the family home at all times. 366 F. 3d 1093,
1143 (CA10 2004) (en banc) (appendix to dissenting opinion
of O’Brien, J.). The bottom of the preprinted form noted
that the reverse side contained “IMPORTANT NOTICES
FOR RESTRAINED PARTIES AND LAW ENFORCE-
MENT OFFICIALS.” Ibid. (emphasis deleted). The pre
1 Petitioner claims that respondent’s complaint “did not allege . . . that
she ever notified the police of her contention that [her husband] was actu
ally in violation of the restraining order.” Brief for Petitioner 7, n. 2.
The complaint does allege, however, that respondent “showed [the police]
a copy of the [temporary restraining order (TRO)] and requested that it
be enforced.” App. to Pet. for Cert. 126a. At this stage in the litigation,
we may assume that this reasonably implied the order was being violated.
See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 104 (1998).

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printed text on the back of the form included the following
“WARNING”:
“A KNOWING VIOLATION OF A RESTRAINING
ORDER IS A CRIME . . . . A VIOLATION WILL
ALSO CONSTITUTE CONTEMPT OF COURT. YOU
MAY BE ARRESTED WITHOUT NOTICE IF A
LAW ENFORCEMENT OFFICER HAS PROBABLE
CAUSE TO BELIEVE THAT YOU HAVE KNOW-
INGLY VIOLATED THIS ORDER.” Id., at 1144 (em
phasis in original).
The preprinted text on the back of the form also included a
“NOTICE TO LAW ENFORCEMENT OFFICIALS,” which
read in part:
“YOU SHALL USE EVERY REASONABLE MEANS
TO ENFORCE THIS RESTRAINING ORDER.
YOU SHALL ARREST, OR, IF AN ARREST
WOULD BE IMPRACTICAL UNDER THE CIR-
CUMSTANCES, SEEK A WARRANT FOR THE AR-
REST OF THE RESTRAINED PERSON WHEN
YOU HAVE INFORMATION AMOUNTING TO
PROBABLE CAUSE THAT THE RESTRAINED
PERSON HAS VIOLATED OR ATTEMPTED TO
VIOLATE ANY PROVISION OF THIS ORDER AND
THE RESTRAINED PERSON HAS BEEN PROP-
ERLY SERVED WITH A COPY OF THIS ORDER
OR HAS RECEIVED ACTUAL NOTICE OF THE
EXISTENCE OF THIS ORDER.” Ibid. (same).
On June 4, 1999, the state trial court modified the terms of
the restraining order and made it permanent. The modified
order gave respondent’s husband the right to spend time
with his three daughters (ages 10, 9, and 7) on alternate
weekends, for two weeks during the summer, and, “ ‘upon
reasonable notice,’ ” for a midweek dinner visit “ ‘arranged
by the parties’ ”; the modified order also allowed him to visit

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the home to collect the children for such “parenting time.”
Id., at 1097 (majority opinion).
According to the complaint, at about 5 or 5:30 p.m. on Tues
day, June 22, 1999, respondent’s husband took the three
daughters while they were playing outside the family home.
No advance arrangements had been made for him to see the
daughters that evening. When respondent noticed the chil
dren were missing, she suspected her husband had taken
them. At about 7:30 p.m., she called the Castle Rock Police
Department, which dispatched two officers. The complaint
continues: “When [the officers] arrived . . . , she showed them
a copy of the TRO and requested that it be enforced and the
three children be returned to her immediately. [The offi
cers] stated that there was nothing they could do about the
TRO and suggested that [respondent] call the Police Depart
ment again if the three children did not return home by 10:00
p.m.” App. to Pet. for Cert. 126a.2
At approximately 8:30 p.m., respondent talked to her hus
band on his cellular telephone. He told her “he had the
three children [at an] amusement park in Denver.” Ibid.
She called the police again and asked them to “have someone
check for” her husband or his vehicle at the amusement park
and “put out an [all points bulletin]” for her husband, but the
officer with whom she spoke “refused to do so,” again telling
her to “wait until 10:00 p.m. and see if ” her husband returned
the girls. Id., at 126a–127a.
At approximately 10:10 p.m., respondent called the police
and said her children were still missing, but she was now
told to wait until midnight. She called at midnight and told
the dispatcher her children were still missing. She went to
her husband’s apartment and, finding nobody there, called
the police at 12:10 a.m.; she was told to wait for an officer to
arrive. When none came, she went to the police station at
2 It is unclear from the complaint, but immaterial to our decision,
whether respondent showed the police only the original “TRO” or also the
permanent, modified restraining order that had superseded it on June 4.

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Opinion of the Court
12:50 a.m. and submitted an incident report. The officer
who took the report “made no reasonable effort to enforce
the TRO or locate the three children. Instead, he went to
dinner.” Id., at 127a.
At approximately 3:20 a.m., respondent’s husband arrived
at the police station and opened fire with a semiautomatic
handgun he had purchased earlier that evening. Police shot
back, killing him. Inside the cab of his pickup truck, they
found the bodies of all three daughters, whom he had already
murdered. Ibid.
On the basis of the foregoing factual allegations, respond
ent brought an action under Rev. Stat. § 1979, 42 U. S. C.
§ 1983, claiming that the town violated the Due Process
Clause because its police department had “an official pol
icy or custom of failing to respond properly to complaints
of restraining order violations” and “tolerate[d] the non
enforcement of restraining orders by its police officers.”
App. to Pet. for Cert. 129a.3 The complaint also alleged that
the town’s actions “were taken either willfully, recklessly or
with such gross negligence as to indicate wanton disregard
and deliberate indifference to” respondent’s civil rights.
Ibid.
Before answering the complaint, the defendants filed a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). The District Court granted the motion, concluding
that, whether construed as making a substantive due process
or procedural due process claim, respondent’s complaint
failed to state a claim upon which relief could be granted.
A panel of the Court of Appeals affirmed the rejection of
a substantive due process claim, but found that respondent
had alleged a cognizable procedural due process claim. 307
F. 3d 1258 (CA10 2002). On rehearing en banc, a divided
3 Three police officers were also named as defendants in the complaint,
but the Court of Appeals concluded that they were entitled to qualified
immunity, 366 F. 3d 1093, 1118 (CA10 2004) (en banc). Respondent did
not file a cross-petition challenging that aspect of the judgment.

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court reached the same disposition, concluding that respond
ent had a “protected property interest in the enforcement of
the terms of her restraining order” and that the town had
deprived her of due process because “the police never ‘heard’
nor seriously entertained her request to enforce and protect
her interests in the restraining order.” 366 F. 3d, at 1101,
1117. We granted certiorari. 543 U. S. 955 (2004).
II
The Fourteenth Amendment to the United States Consti
tution provides that a State shall not “deprive any person of
life, liberty, or property, without due process of law.” Amdt.
14, § 1. In 42 U. S. C. § 1983, Congress has created a federal
cause of action for “the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws.” Re
spondent claims the benefit of this provision on the ground
that she had a property interest in police enforcement of the
restraining order against her husband; and that the town de
prived her of this property without due process by having a
policy that tolerated nonenforcement of restraining orders.
As the Court of Appeals recognized, we left a similar ques
tion unanswered in DeShaney v. Winnebago County Dept. of
Social Servs., 489 U. S. 189 (1989), another case with “unde
niably tragic” facts: Local child-protection officials had failed
to protect a young boy from beatings by his father that left
him severely brain damaged. Id., at 191–193. We held that
the so-called “substantive” component of the Due Process
Clause does not “requir[e] the State to protect the life, lib
erty, and property of its citizens against invasion by private
actors.” Id., at 195. We noted, however, that the peti
tioner had not properly preserved the argument that—and
we thus “decline[d] to consider” whether—state “child pro
tection statutes gave [him] an ‘entitlement’ to receive protec
tive services in accordance with the terms of the statute,
an entitlement which would enjoy due process protection.”
Id., at 195, n. 2.

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The procedural component of the Due Process Clause does
not protect everything that might be described as a “bene
fit”: “To have a property interest in a benefit, a person
clearly must have more than an abstract need or desire” and
“more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it.” Board of Re
gents of State Colleges v. Roth, 408 U. S. 564, 577 (1972).
Such entitlements are, “ ‘of course, . . . not created by the
Constitution. Rather, they are created and their dimen
sions are defined by existing rules or understandings that
stem from an independent source such as state law.’ ” Paul
v. Davis, 424 U. S. 693, 709 (1976) (quoting Roth, supra, at
577); see also Phillips v. Washington Legal Foundation, 524
U. S. 156, 164 (1998).
A
Our cases recognize that a benefit is not a protected enti
tlement if government officials may grant or deny it in their
discretion. See, e. g., Kentucky Dept. of Corrections v.
Thompson, 490 U. S. 454, 462–463 (1989). The Court of Ap
peals in this case determined that Colorado law created an
entitlement to enforcement of the restraining order because
the “court-issued restraining order . . . specifically dictated
that its terms must be enforced” and a “state statute com
mand[ed]” enforcement of the order when certain objective
conditions were met (probable cause to believe that the order
had been violated and that the object of the order had re
ceived notice of its existence). 366 F. 3d, at 1101, n. 5; see
also id., at 1100, n. 4; id., at 1104–1105, and n. 9. Respondent
contends that we are obliged “to give deference to the Tenth
Circuit’s analysis of Colorado law on” whether she had an
entitlement to enforcement of the restraining order. Tr. of
Oral Arg. 52.
We will not, of course, defer to the Tenth Circuit on the
ultimate issue: whether what Colorado law has given re
spondent constitutes a property interest for purposes of the
Fourteenth Amendment. That determination, despite its

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Opinion of the Court
state-law underpinnings, is ultimately one of federal consti
tutional law. “Although the underlying substantive interest
is created by ‘an independent source such as state law,’ fed
eral constitutional law determines whether that interest
rises to the level of a ‘legitimate claim of entitlement’ pro
tected by the Due Process Clause.” Memphis Light, Gas &
Water Div. v. Craft, 436 U. S. 1, 9 (1978) (quoting Roth,
supra, at 577; emphasis added); cf. United States ex rel. TVA
v. Powelson, 319 U. S. 266, 279 (1943). Resolution of the fed
eral issue begins, however, with a determination of what it
is that state law provides. In the context of the present
case, the central state-law question is whether Colorado law
gave respondent a right to police enforcement of the re
straining order. It is on this point that respondent’s call for
deference to the Tenth Circuit is relevant.
We have said that a “presumption of deference [is] given
the views of a federal court as to the law of a State within
its jurisdiction.” Phillips, supra, at 167. That presump
tion can be overcome, however, see Leavitt v. Jane L., 518
U. S. 137, 145 (1996) (per curiam), and we think deference
inappropriate here. The Tenth Circuit’s opinion, which re
versed the Colorado District Judge, did not draw upon a
deep well of state-specific expertise, but consisted primarily
of quoting language from the restraining order, the statutory
text, and a state-legislative-hearing transcript. See 366
F. 3d, at 1103–1109. These texts, moreover, say nothing dis
tinctive to Colorado, but use mandatory language that (as we
shall discuss) appears in many state and federal statutes.
As for case law: The only state-law cases about restraining
orders that the Court of Appeals relied upon were decisions
of Federal District Courts in Ohio and Pennsylvania and
state courts in New Jersey, Oregon, and Tennessee. Id., at
1104–1105, n. 9, 1109.4 Moreover, if we were simply to ac
4 Most of the Colorado-law cases cited by the Court of Appeals appeared
in footnotes declaring them to be irrelevant because they involved only
substantive due process (366 F. 3d, at 1100–1101, nn. 4–5), only statutes

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Opinion of the Court
cept the Court of Appeals’ conclusion, we would necessarily
have to decide conclusively a federal constitutional question
(i. e., whether such an entitlement constituted property
under the Due Process Clause and, if so, whether petitioner’s
customs or policies provided too little process to protect it).
We proceed, then, to our own analysis of whether Colorado
law gave respondent a right to enforcement of the restrain
ing order.5
B
The critical language in the restraining order came not
from any part of the order itself (which was signed by the
state-court trial judge and directed to the restrained party,
respondent’s husband), but from the preprinted notice to
law-enforcement personnel that appeared on the back of the
order. See supra, at 751–752. That notice effectively re
stated the statutory provision describing “peace officers’ du
ties” related to the crime of violation of a restraining order.
At the time of the conduct at issue in this case, that provision
read as follows:
“(a) Whenever a restraining order is issued, the pro
tected person shall be provided with a copy of such
without restraining orders (id., at 1101, n. 5), or Colorado’s Government
Immunity Act, which the Court of Appeals concluded applies “only to . . .
state tort law claims” (id., at 1108–1109, n. 12). Our analysis is likewise
unaffected by the Immunity Act or by the way that Colorado has dealt
with substantive due process or cases that do not involve restraining
orders.
5 In something of an anyone-but-us approach, the dissent simultaneously
(and thus unpersuasively) contends not only that this Court should certify
a question to the Colorado Supreme Court, post, at 776–778 (opinion of
Stevens, J.), but also that it should defer to the Tenth Circuit (which itself
did not certify any such question), post, at 775–776. No party in this case
has requested certification, even as an alternative disposition. See Tr. of
Oral Arg. 56 (petitioner’s counsel “disfavor[ing]” certification); id., at
25–26 (counsel for the United States arguing against certification). At
oral argument, in fact, respondent’s counsel declined Justice Stevens’
invitation to request it. Id., at 53.

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order. A peace officer shall use every reasonable
means to enforce a restraining order.
“(b) A peace officer shall arrest, or, if an arrest would
be impractical under the circumstances, seek a warrant
for the arrest of a restrained person when the peace
officer has information amounting to probable cause
that:
“(I) The restrained person has violated or attempted
to violate any provision of a restraining order; and
“(II) The restrained person has been properly served
with a copy of the restraining order or the restrained
person has received actual notice of the existence and
substance of such order.
“(c) In making the probable cause determination de
scribed in paragraph (b) of this subsection (3), a peace
officer shall assume that the information received from
the registry is accurate. A peace officer shall enforce
a valid restraining order whether or not there is a rec
ord of the restraining order in the registry.” Colo. Rev.
Stat. § 18–6–803.5(3) (Lexis 1999) (emphases added).
The Court of Appeals concluded that this statutory provi
sion—especially taken in conjunction with a statement from
its legislative history,6 and with another statute restricting
6 The Court of Appeals quoted one lawmaker’s description of how the
bill “ ‘would really attack the domestic violence problems’ ”:
“ ‘[T]he entire criminal justice system must act in a consistent manner,
which does not now occur. The police must make probable cause arrests.
The prosecutors must prosecute every case. Judges must apply appro
priate sentences, and probation officers must monitor their probationers
closely. And the offender needs to be sentenced to offender-specific
therapy.
“ ‘[T]he entire system must send the same message . . . [that] violence is
criminal. And so we hope that House Bill 1253 starts us down this road.’ ”
366 F. 3d, at 1107 (quoting Tr. of Colorado House Judiciary Hearings on
House Bill 1253, Feb. 15, 1994; emphasis deleted).

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criminal and civil liability for officers making arrests 7—es
tablished the Colorado Legislature’s clear intent “to alter the
fact that the police were not enforcing domestic abuse re
straining orders,” and thus its intent “that the recipient of a
domestic abuse restraining order have an entitlement to its
enforcement.” 366 F. 3d, at 1108. Any other result, it said,
“would render domestic abuse restraining orders utterly val
ueless.” Id., at 1109.
This last statement is sheer hyperbole. Whether or not
respondent had a right to enforce the restraining order, it
rendered certain otherwise lawful conduct by her husband
both criminal and in contempt of court. See §§ 18–6–
803.5(2)(a), (7). The creation of grounds on which he could
be arrested, criminally prosecuted, and held in contempt was
hardly “valueless”—even if the prospect of those sanctions
ultimately failed to prevent him from committing three mur
ders and a suicide.
We do not believe that these provisions of Colorado law
truly made enforcement of restraining orders mandatory.
A well established tradition of police discretion has long co
existed with apparently mandatory arrest statutes.
“In each and every state there are long-standing stat
utes that, by their terms, seem to preclude nonenforce
ment by the police. . . . However, for a number of
reasons, including their legislative history, insufficient
resources, and sheer physical impossibility, it has been
recognized that such statutes cannot be interpreted
literally. . . . [T]hey clearly do not mean that a police
officer may not lawfully decline to . . . make an arrest.
As to third parties in these states, the full-enforcement
statutes simply have no effect, and their significance is
7 Under Colo. Rev. Stat. § 18–6–803.5(5) (Lexis 1999), “[a] peace officer
arresting a person for violating a restraining order or otherwise enforcing
a restraining order” was not to be held civilly or criminally liable unless
he acted “in bad faith and with malice” or violated “rules adopted by the
Colorado supreme court.”

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further diminished.” 1 ABA Standards for Criminal
Justice 1–4.5, commentary, pp. 1–124 to 1–125 (2d ed.
1980) (footnotes omitted).
The deep-rooted nature of law-enforcement discretion,
even in the presence of seemingly mandatory legislative
commands, is illustrated by Chicago v. Morales, 527 U. S. 41
(1999), which involved an ordinance that said a police officer
“ ‘shall order’ ” persons to disperse in certain circumstances,
id., at 47, n. 2. This Court rejected out of hand the possibil
ity that “the mandatory language of the ordinance . . . af
ford[ed] the police no discretion.” Id., at 62, n. 32. It is,
the Court proclaimed, simply “common sense that all police
officers must use some discretion in deciding when and
where to enforce city ordinances.” Ibid. (emphasis added).
Against that backdrop, a true mandate of police action
would require some stronger indication from the Colorado
Legislature than “shall use every reasonable means to en
force a restraining order” (or even “shall arrest . . . or . . .
seek a warrant”), §§ 18–6–803.5(3)(a), (b). That language is
not perceptibly more mandatory than the Colorado statute
which has long told municipal chiefs of police that they “shall
pursue and arrest any person fleeing from justice in any part
of the state” and that they “shall apprehend any person in
the act of committing any offense . . . and, forthwith and
without any warrant, bring such person before a . . . compe
tent authority for examination and trial.” Colo. Rev. Stat.
§ 31–4–112 (Lexis 2004). It is hard to imagine that a Colo
rado peace officer would not have some discretion to deter
mine that—despite probable cause to believe a restraining
order has been violated—the circumstances of the violation
or the competing duties of that officer or his agency counsel
decisively against enforcement in a particular instance.8
8 Respondent in fact concedes that an officer may “properly” decide not
to enforce a restraining order when the officer deems “a technical vio
lation” too “immaterial” to justify arrest. Respondent explains this as
a determination that there is no probable cause. Brief for Respond

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The practical necessity for discretion is particularly apparent
in a case such as this one, where the suspected violator
is not actually present and his whereabouts are unknown.
Cf. Donaldson v. Seattle, 65 Wash. App. 661, 671–672, 831
P. 2d 1098, 1104 (1992) (“There is a vast difference between
a mandatory duty to arrest [a violator who is on the scene]
and a mandatory duty to conduct a follow up investigation
[to locate an absent violator]. . . . A mandatory duty to inves
tigate . . . would be completely open-ended as to priority,
duration and intensity”).
The dissent correctly points out that, in the specific con
text of domestic violence, mandatory-arrest statutes have
been found in some States to be more mandatory than tra
ditional mandatory-arrest statutes. Post, at 779–784 (opin
ion of Stevens, J.). The Colorado statute mandating arrest
for a domestic-violence offense is different from but related
to the one at issue here, and it includes similar though not
identical phrasing. See Colo. Rev. Stat. § 18–6–803.6(1)
(Lexis 1999) (“When a peace officer determines that there is
probable cause to believe that a crime or offense involving
domestic violence . . . has been committed, the officer shall,
without undue delay, arrest the person suspected of its
commission . . . ”). Even in the domestic-violence context,
however, it is unclear how the mandatory-arrest paradigm
applies to cases in which the offender is not present to be
arrested. As the dissent explains, post, at 780–781, and n. 8,
much of the impetus for mandatory-arrest statutes and poli
cies derived from the idea that it is better for police officers
to arrest the aggressor in a domestic-violence incident than
to attempt to mediate the dispute or merely to ask the of
fender to leave the scene. Those other options are only
available, of course, when the offender is present at the
ent 28. We think, however, that a determination of no probable cause to
believe a violation has occurred is quite different from a determination
that the violation is too insignificant to pursue.

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scene. See Hanna, No Right to Choose: Mandated Victim
Participation in Domestic Violence Prosecutions, 109 Harv.
L. Rev. 1849, 1860 (1996) (“[T]he clear trend in police practice
is to arrest the batterer at the scene . . . ” (emphasis added)).
As one of the cases cited by the dissent, post, at 783, recog
nized, “there will be situations when no arrest is possible, such
as when the alleged abuser is not in the home.” Donaldson,
65 Wash. App., at 674, 831 P. 2d, at 1105 (emphasis added).
That case held that Washington’s mandatory-arrest statute
required an arrest only in “cases where the offender is on
the scene,” and that it “d[id] not create an on-going manda
tory duty to conduct an investigation” to locate the offender.
Id., at 675, 831 P. 2d, at 1105. Colorado’s restraining-order
statute appears to contemplate a similar distinction, provid
ing that when arrest is “impractical”—which was likely the
case when the whereabouts of respondent’s husband were
unknown—the officers’ statutory duty is to “seek a warrant”
rather than “arrest.” § 18–6–803.5(3)(b).
Respondent does not specify the precise means of enforce
ment that the Colorado restraining-order statute assertedly
mandated—whether her interest lay in having police arrest
her husband, having them seek a warrant for his arrest, or
having them “use every reasonable means, up to and includ
ing arrest, to enforce the order’s terms,” Brief for Respond
ent 29–30.9 Such indeterminacy is not the hallmark of a
duty that is mandatory. Nor can someone be safely deemed
“entitled” to something when the identity of the alleged enti
tlement is vague. See Roth, 408 U. S., at 577 (considering
9 Respondent characterizes her entitlement in various ways. See Brief
for Respondent 12 (“ ‘entitlement’ to receive protective services”); id., at
13 (“interest in police enforcement action”); id., at 14 (“specific govern
ment benefit” consisting of “the government service of enforcing the objec
tive terms of the court order protecting her and her children against her
abusive husband”); id., at 32 (“[T]he restraining order here mandated the
arrest of Mr. Gonzales under specified circumstances, or at a minimum
required the use of reasonable means to enforce the order”).

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whether “certain benefits” were “secure[d]” by rule or un
derstandings); cf. Natale v. Ridgefield, 170 F. 3d 258, 263
(CA2 1999) (“There is no reason . . . to restrict the ‘uncer
tainty’ that will preclude existence of a federally protectable
property interest to the uncertainty that inheres in [the] ex
ercise of discretion”). The dissent, after suggesting various
formulations of the entitlement in question,10 ultimately con
tends that the obligations under the statute were quite pre
cise: either make an arrest or (if that is impractical) seek an
arrest warrant, post, at 785. The problem with this is that
the seeking of an arrest warrant would be an entitlement to
nothing but procedure—which we have held inadequate even
to support standing, see Lujan v. Defenders of Wildlife, 504
U. S. 555 (1992); much less can it be the basis for a property
interest. See post, at 771–772 (Souter, J., concurring).
After the warrant is sought, it remains within the discretion
of a judge whether to grant it, and after it is granted, it
remains within the discretion of the police whether and when
to execute it.11 Respondent would have been assured noth
ing but the seeking of a warrant. This is not the sort of
“entitlement” out of which a property interest is created.
Even if the statute could be said to have made enforcement
of restraining orders “mandatory” because of the domestic
violence context of the underlying statute, that would not
10 See post, at 773 (“entitlement to police protection”); ibid. (“entitlement
to mandatory individual protection by the local police force”); post, at 774
(“a right to police assistance”); post, at 779 (“a citizen’s interest in the
government’s commitment to provide police enforcement in certain defined
circumstances”); post, at 789 (“respondent’s property interest in the en
forcement of her restraining order”); post, at 790, 791 (the “service” of
“protection from her husband”); post, at 792 (“interest in the enforcement
of the restraining order”).
11 The dissent asserts that the police would lack discretion in the execu
tion of this warrant, post, at 785, n. 12, but cites no statute mandating
immediate execution. The general Colorado statute governing arrest
provides that police “may arrest” when they possess a warrant “command
ing” arrest. Colo. Rev. Stat. § 16–3–102(1) (Lexis 1999).

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necessarily mean that state law gave respondent an entitle
ment to enforcement of the mandate. Making the actions of
government employees obligatory can serve various legiti
mate ends other than the conferral of a benefit on a specific
class of people. See, e. g., Sandin v. Conner, 515 U. S. 472,
482 (1995) (finding no constitutionally protected liberty inter
est in prison regulations phrased in mandatory terms, in part
because “[s]uch guidelines are not set forth solely to benefit
the prisoner”). The serving of public rather than private
ends is the normal course of the criminal law because crimi
nal acts, “besides the injury [they do] to individuals, . . .
strike at the very being of society; which cannot possibly
subsist, where actions of this sort are suffered to escape with
impunity.” 4 W. Blackstone, Commentaries on the Laws of
England 5 (1769); see also Huntington v. Attrill, 146 U. S.
657, 668 (1892). This principle underlies, for example, a Col
orado district attorney’s discretion to prosecute a domestic
assault, even though the victim withdraws her charge. See
People v. Cunefare, 102 P. 3d 302, 311–312 (Colo. 2004) (en
banc) (Bender, J., concurring in part, dissenting in part, and
dissenting in part to the judgment).
Respondent’s alleged interest stems only from a State’s
statutory scheme—from a restraining order that was author
ized by and tracked precisely the statute on which the Court
of Appeals relied. She does not assert that she has any
common-law or contractual entitlement to enforcement. If
she was given a statutory entitlement, we would expect to
see some indication of that in the statute itself. Although
Colorado’s statute spoke of “protected person[s]” such as re
spondent, it did so in connection with matters other than a
right to enforcement. It said that a “protected person shall
be provided with a copy of [a restraining] order” when it is
issued, § 18–6–803.5(3)(a); that a law enforcement agency
“shall make all reasonable efforts to contact the protected
party upon the arrest of the restrained person,” § 18–6–
803.5(3)(d); and that the agency “shall give [to the protected

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person] a copy” of the report it submits to the court that
issued the order, § 18–6–803.5(3)(e). Perhaps most impor
tantly, the statute spoke directly to the protected person’s
power to “initiate contempt proceedings against the re
strained person if the order [was] issued in a civil action or
request the prosecuting attorney to initiate contempt pro
ceedings if the order [was] issued in a criminal action.”
§ 18–6–803.5(7). The protected person’s express power to
“initiate” civil contempt proceedings contrasts tellingly with
the mere ability to “request” initiation of criminal contempt
proceedings—and even more dramatically with the complete
silence about any power to “request” (much less demand)
that an arrest be made.
The creation of a personal entitlement to something as
vague and novel as enforcement of restraining orders cannot
“simply g[o] without saying.” Post, at 788, n. 16 (Stevens,
J., dissenting). We conclude that Colorado has not created
such an entitlement.
C
Even if we were to think otherwise concerning the cre
ation of an entitlement by Colorado, it is by no means clear
that an individual entitlement to enforcement of a restrain
ing order could constitute a “property” interest for purposes
of the Due Process Clause. Such a right would not, of
course, resemble any traditional conception of property. Al
though that alone does not disqualify it from due process
protection, as Roth and its progeny show, the right to have
a restraining order enforced does not “have some ascertain
able monetary value,” as even our “Roth-type property-as
entitlement” cases have implicitly required. Merrill, The
Landscape of Constitutional Property, 86 Va. L. Rev. 885,
964 (2000).12 Perhaps most radically, the alleged property
12 The dissent suggests that the interest in having a restraining order
enforced does have an ascertainable monetary value, because one may
“contract with a private security firm . . . to provide protection” for one’s
family. Post, at 773, 790, 791, and n. 19. That is, of course, not as precise

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interest here arises incidentally, not out of some new species
of government benefit or service, but out of a function that
government actors have always performed—to wit, arrest
ing people who they have probable cause to believe have
committed a criminal offense.13
The indirect nature of a benefit was fatal to the due proc
ess claim of the nursing-home residents in O’Bannon v. Town
Court Nursing Center, 447 U. S. 773 (1980). We held that,
while the withdrawal of “direct benefits” (financial payments
under Medicaid for certain medical services) triggered due
process protections, id., at 786–787, the same was not true
for the “indirect benefit[s]” conferred on Medicaid patients
when the Government enforced “minimum standards of care”
for nursing-home facilities, id., at 787. “[A]n indirect and
incidental result of the Government’s enforcement action . . .
does not amount to a deprivation of any interest in life, lib
erty, or property.” Ibid. In this case, as in O’Bannon,
“[t]he simple distinction between government action that di
rectly affects a citizen’s legal rights . . . and action that is
directed against a third party and affects the citizen only
indirectly or incidentally, provides a sufficient answer to” re
spondent’s reliance on cases that found government-provided
as the analogy between public and private schooling that the dissent in
vokes. Post, at 791, n. 19. Respondent probably could have hired a pri
vate firm to guard her house, to prevent her husband from coming onto
the property, and perhaps even to search for her husband after she discov
ered that her children were missing. Her alleged entitlement here, how
ever, does not consist in an abstract right to “protection,” but (according
to the dissent) in enforcement of her restraining order through the arrest
of her husband, or the seeking of a warrant for his arrest, after she gave
the police probable cause to believe the restraining order had been vio
lated. A private person would not have the power to arrest under those
circumstances because the crime would not have occurred in his presence.
Colo. Rev. Stat. § 16–3–201 (Lexis 1999). And, needless to say, a private
person would not have the power to obtain an arrest warrant.
13 In other contexts, we have explained that “a private citizen lacks a
judicially cognizable interest in the prosecution or nonprosecution of an
other.” Linda R. S. v. Richard D., 410 U. S. 614, 619 (1973).

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services to be entitlements. Id., at 788. The O’Bannon
Court expressly noted, ibid., that the distinction between
direct and indirect benefits distinguished Memphis Light,
Gas & Water Div. v. Craft, 436 U. S. 1 (1978), one of the
government-services cases on which the dissent relies, post,
at 789.
III
We conclude, therefore, that respondent did not, for pur
poses of the Due Process Clause, have a property interest
in police enforcement of the restraining order against her
husband. It is accordingly unnecessary to address the
Court of Appeals’ determination (366 F. 3d, at 1110–1117)
that the town’s custom or policy prevented the police from
giving her due process when they deprived her of that al
leged interest. See American Mfrs. Mut. Ins. Co. v. Sulli
van, 526 U. S. 40, 61 (1999).14
In light of today’s decision and that in DeShaney, the bene
fit that a third party may receive from having someone else
arrested for a crime generally does not trigger protections
under the Due Process Clause, neither in its procedural nor
in its “substantive” manifestations. This result reflects our
continuing reluctance to treat the Fourteenth Amendment
as “ ‘a font of tort law,’ ” Parratt v. Taylor, 451 U. S. 527, 544
(1981) (quoting Paul v. Davis, 424 U. S., at 701), but it does
not mean States are powerless to provide victims with per
sonally enforceable remedies. Although the framers of the
Fourteenth Amendment and the Civil Rights Act of 1871, 17
Stat. 13 (the original source of § 1983), did not create a sys
tem by which police departments are generally held finan
cially accountable for crimes that better policing might have
14 Because we simply do not address whether the process would have
been adequate if respondent had had a property interest, the dissent is
correct to note that we do not “contest” the point, post, at 774. Of course
we do not accept it either.

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prevented, the people of Colorado are free to craft such a
system under state law. Cf. DeShaney, 489 U. S., at 203.15
The judgment of the Court of Appeals is
Reversed.
Justice Souter, with whom Justice Breyer joins,
concurring.
I agree with the Court that Jessica Gonzales has shown no
violation of an interest protected by the Fourteenth Amend
ment’s Due Process Clause, and I join the Court’s opinion.
The Court emphasizes the traditional public focus of law en
forcement as reason to doubt that these particular legal re
quirements to provide police services, however unconditional
their form, presuppose enforceable individual rights to a
certain level of police protection. Ante, at 764–765. The
15 In Colorado, the general statutory immunity for government employ
ees does not apply when “the act or omission causing . . . injury was willful
and wanton.” Colo. Rev. Stat. § 24–10–118(2)(a) (Lexis 1999). Respond
ent’s complaint does allege that the police officers’ actions “were taken
either willfully, recklessly or with such gross negligence as to indicate
wanton disregard and deliberate indifference to” her civil rights. App. to
Pet. for Cert. 128a.
The state cases cited by the dissent that afford a cause of action for
police failure to enforce restraining orders, post, at 782–784, 786, n. 13,
vindicate state common-law or statutory tort claims—not procedural due
process claims under the Federal Constitution. See Donaldson v. Seattle,
65 Wash. App. 661, 831 P. 2d 1098 (1992) (city could be liable under some
circumstances for per se negligence in failing to meet statutory duty to
arrest); Matthews v. Pickett County, 996 S. W. 2d 162 (Tenn. 1999) (county
could be liable under Tennessee’s Governmental Tort Liability Act where
restraining order created a special duty); Campbell v. Campbell, 294 N. J.
Super. 18, 682 A. 2d 272 (1996) (rejecting four specific defenses under the
New Jersey Tort Claims Act in negligence action against individual offi
cers); Sorichetti v. New York, 65 N. Y. 2d 461, 482 N. E. 2d 70 (1985) (city
breached duty of care arising from special relationship between police and
victim); Nearing v. Weaver, 295 Ore. 702, 670 P. 2d 137 (1983) (en banc)
(statutory duty to individual plaintiffs arising independently of tort-law
duty of care).

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Court also notes that the terms of the Colorado statute in
volved here recognize and preserve the traditional discretion
afforded law enforcement officers. Ante, at 760–764, and
n. 8. Gonzales’s claim of a property right thus runs up
against police discretion in the face of an individual demand
to enforce, and discretion to ignore an individual instruction
not to enforce (because, say, of a domestic reconciliation); no
one would argue that the beneficiary of a Colorado order like
the one here would be authorized to control a court’s con
tempt power or order the police to refrain from arresting.
These considerations argue against inferring any guarantee
of a level of protection or safety that could be understood as
the object of a “legitimate claim of entitlement,” Board of
Regents of State Colleges v. Roth, 408 U. S. 564, 577 (1972),
in the nature of property arising under Colorado law.* Con
sequently, the classic predicate for federal due process pro
tection of interests under state law is missing.
Gonzales implicitly recognizes this, when she makes the
following argument:
“Ms. Gonzales alleges that . . . she was denied the proc
ess laid out in the statute. The police did not consider
her request in a timely fashion, but instead repeatedly
required her to call the station over several hours. The
statute promised a process by which her restraining
order would be given vitality through careful and
prompt consideration of an enforcement request . . . .
Denial of that process drained all of the value from her
property interest in the restraining order.” Brief for
Respondent 10.
The argument is unconventional because the state-law bene
fit for which it claims federal procedural protection is itself
a variety of procedural regulation, a set of rules to be fol
lowed by officers exercising the State’s executive power: use
*Gonzales does not claim to have a protected liberty interest.

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all reasonable means to enforce, arrest upon demonstrable
probable cause, get a warrant, and so on, see ante, at
751–752.
When her argument is understood as unconventional in
this sense, a further reason appears for rejecting its call to
apply Roth, a reason that would apply even if the statutory
mandates to the police were absolute, leaving the police with
no discretion when the beneficiary of a protective order in
sists upon its enforcement. The Due Process Clause ex
tends procedural protection to guard against unfair depriva
tion by state officials of substantive state-law property
rights or entitlements; the federal process protects the prop
erty created by state law. But Gonzales claims a property
interest in a state-mandated process in and of itself. This
argument is at odds with the rule that “[p]rocess is not an
end in itself. Its constitutional purpose is to protect a sub
stantive interest to which the individual has a legitimate
claim of entitlement.” Olim v. Wakinekona, 461 U. S. 238,
250 (1983); see also Doe v. District of Columbia, 93 F. 3d 861,
868 (CADC 1996) (per curiam); Doe v. Milwaukee County,
903 F. 2d 499, 502–503 (CA7 1990). In putting to rest the
notion that the scope of an otherwise discernible property
interest could be limited by related state-law procedures,
this Court observed that “[t]he categories of substance and
procedure are distinct. . . . ‘Property’ cannot be defined by
the procedures provided for its deprivation.” Cleveland
Bd. of Ed. v. Loudermill, 470 U. S. 532, 541 (1985). Just as
a State cannot diminish a property right, once conferred, by
attaching less than generous procedure to its deprivation,
ibid., neither does a State create a property right merely by
ordaining beneficial procedure unconnected to some articula
ble substantive guarantee. This is not to say that state
rules of executive procedure may not provide significant rea
sons to infer an articulable property right meant to be pro
tected; but it is to say that we have not identified property

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with procedure as such. State rules of executive procedure,
however important, may be nothing more than rules of exec
utive procedure.
Thus, in every instance of property recognized by this
Court as calling for federal procedural protection, the prop
erty has been distinguishable from the procedural obliga
tions imposed on state officials to protect it. Whether wel
fare benefits, Goldberg v. Kelly, 397 U. S. 254 (1970),
attendance at public schools, Goss v. Lopez, 419 U. S. 565
(1975), utility services, Memphis Light, Gas & Water Div. v.
Craft, 436 U. S. 1 (1978), public employment, Perry v. Sinder
mann, 408 U. S. 593 (1972), professional licenses, Barry v.
Barchi, 443 U. S. 55 (1979), and so on, the property interest
recognized in our cases has always existed apart from state
procedural protection before the Court has recognized a con
stitutional claim to protection by federal process. To accede
to Gonzales’s argument would therefore work a sea change
in the scope of federal due process, for she seeks federal
process as a substitute simply for state process. (And she
seeks damages under Rev. Stat. § 1979, 42 U. S. C. § 1983, for
denial of process to which she claimed a federal right.)
There is no articulable distinction between the object of Gon
zales’s asserted entitlement and the process she desires in
order to protect her entitlement; both amount to certain
steps to be taken by the police to protect her family and
herself. Gonzales’s claim would thus take us beyond Roth
or any other recognized theory of Fourteenth Amendment
due process, by collapsing the distinction between property
protected and the process that protects it, and would federal
ize every mandatory state-law direction to executive officers
whose performance on the job can be vitally significant to
individuals affected.
The procedural directions involved here are just that.
They presuppose no enforceable substantive entitlement, and
Roth does not raise them to federally enforceable status in
the name of due process.

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Justice Stevens, with whom Justice Ginsburg joins,
dissenting.
The issue presented to us is much narrower than is sug
gested by the far-ranging arguments of the parties and their
amici. Neither the tragic facts of the case, nor the impor
tance of according proper deference to law enforcement pro
fessionals, should divert our attention from that issue. That
issue is whether the restraining order entered by the Colo
rado trial court on June 4, 1999, created a “property” interest
that is protected from arbitrary deprivation by the Due
Process Clause of the Fourteenth Amendment.
It is perfectly clear, on the one hand, that neither the Fed
eral Constitution itself, nor any federal statute, granted re
spondent or her children any individual entitlement to police
protection. See DeShaney v. Winnebago County Dept. of
Social Servs., 489 U. S. 189 (1989). Nor, I assume, does any
Colorado statute create any such entitlement for the ordi
nary citizen. On the other hand, it is equally clear that fed
eral law imposes no impediment to the creation of such an
entitlement by Colorado law. Respondent certainly could
have entered into a contract with a private security firm,
obligating the firm to provide protection to respondent’s fam
ily; respondent’s interest in such a contract would unques
tionably constitute “property” within the meaning of the Due
Process Clause. If a Colorado statute enacted for her bene
fit, or a valid order entered by a Colorado judge, created the
functional equivalent of such a private contract by grant
ing respondent an entitlement to mandatory individual pro
tection by the local police force, that state-created right
would also qualify as “property” entitled to constitutional
protection.
I do not understand the majority to rule out the foregoing
propositions, although it does express doubts. See ante, at
766 (“[I]t is by no means clear that an individual entitlement
to enforcement of a restraining order could constitute a

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‘property’ interest”). Moreover, the majority does not con
test, see ante, at 768, that if respondent did have a cognizable
property interest in this case, the deprivation of that interest
violated due process. As the Court notes, respondent has
alleged that she presented the police with a copy of the re
straining order issued by the Colorado court and requested
that it be enforced. Ante, at 751, n. 1. In response, she
contends, the officers effectively ignored her. If these alle
gations are true, a federal statute, Rev. Stat. § 1979, 42
U. S. C. § 1983, provides her with a remedy against the peti
tioner, even if Colorado law does not. See Cleveland Bd. of
Ed. v. Loudermill, 470 U. S. 532 (1985).
The central question in this case is therefore whether, as
a matter of Colorado law, respondent had a right to police
assistance comparable to the right she would have possessed
to any other service the government or a private firm might
have undertaken to provide. See Board of Regents of State
Colleges v. Roth, 408 U. S. 564, 577 (1972) (“Property inter
ests, of course, are not created by the Constitution. Rather,
they are created and their dimensions are defined by existing
rules or understandings that stem from an independent
source such as state law—rules or understandings that se
cure certain benefits and that support claims of entitlement
to those benefits”).
There was a time when our tradition of judicial restraint
would have led this Court to defer to the judgment of more
qualified tribunals in seeking the correct answer to that dif
ficult question of Colorado law. Unfortunately, although the
majority properly identifies the “central state-law question”
in this case as “whether Colorado law gave respondent a
right to police enforcement of the restraining order,” ante,
at 758, it has chosen to ignore our settled practice by provid
ing its own answer to that question. Before identifying the
flaws in the Court’s ruling on the merits, I shall briefly com
ment on our past practice.

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I
The majority’s decision to plunge ahead with its own anal
ysis of Colorado law imprudently departs from this Court’s
longstanding policy of paying “deference [to] the views of a
federal court as to the law of a State within its jurisdiction.”
Phillips v. Washington Legal Foundation, 524 U. S. 156, 167
(1998); see also Bishop v. Wood, 426 U. S. 341, 346, and n. 10
(1976) (collecting cases). This policy is not only efficient, but
it reflects “our belief that district courts and courts of ap
peals are better schooled in and more able to interpret the
laws of their respective States.” Brockett v. Spokane Ar
cades, Inc., 472 U. S. 491, 500–501 (1985); Hillsborough v.
Cromwell, 326 U. S. 620, 629–630 (1946) (endorsing “great
deference to the views of the judges of those courts ‘who
are familiar with the intricacies and trends of local law and
practice’ ”). Accordingly, we have declined to show defer
ence only in rare cases in which the court of appeals’ resolu
tion of state law was “clearly wrong” or otherwise seriously
deficient. See Brockett, 472 U. S., at 500, n. 9; accord, Lea
vitt v. Jane L., 518 U. S. 137, 145 (1996) (per curiam).
Unfortunately, the Court does not even attempt to demon
strate that the six-judge en banc majority was “clearly
wrong” in its interpretation of Colorado’s domestic restrain
ing order statute; nor could such a showing be made. For it
is certainly plausible to construe “shall use every reasonable
means to enforce a restraining order” and “shall arrest,”
Colo. Rev. Stat. §§ 18–6–803.5(3)(a)–(b) (Lexis 1999) (empha
sis added), as conveying mandatory directives to the police,
particularly when the same statute, at other times, tellingly
employs different language that suggests police discretion,
see § 18–6–803.5(6)(a) (“A peace officer is authorized to use
every reasonable means to protect . . . ”; “Such peace officer
may transport . . . ” (emphasis added)).1 Moreover, unlike
1 The Court of Appeals also looked to other provisions of the statute to
inform its analysis. In particular, it reasoned that a provision that gave
police officers qualified immunity in connection with their enforcement of

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today’s decision, the Court of Appeals was attentive to the
legislative history of the statute, focusing on a statement by
the statute’s sponsor in the Colorado House, ante, at 759,
n. 6 (quoting statement), which it took to “emphasiz[e] the
importance of the police’s mandatory enforcement of domes
tic restraining orders.” 366 F. 3d 1093, 1107 (CA10 2004) (en
banc). Far from overlooking the traditional presumption of
police discretion, then, the Court of Appeals’ diligent analy
sis of the statute’s text, purpose, and history led it to con
clude that the Colorado Legislature intended precisely to ab
rogate that presumption in the specific context of domestic
restraining orders. That conclusion is eminently reasonable
and, I believe, worthy of our deference.2
II
Even if the Court had good reason to doubt the Court of
Appeals’ determination of state law, it would, in my judg
ment, be a far wiser course to certify the question to the
restraining orders, see Colo. Rev. Stat. § 18–6–803.5(5) (Lexis 1999), sup
ported the inference that the Colorado Legislature intended mandatory
enforcement. See 366 F. 3d 1093, 1108 (CA10 2004) (en banc).
2 The Court declines to show deference for the odd reason that, in its
view, the Court of Appeals did not “draw upon a deep well of state-specific
expertise,” ante, at 757, but rather examined the statute’s text and legisla
tive history and distinguished arguably relevant Colorado case law. See
ante, at 757, and n. 4. This rationale makes a mockery of our traditional
practice, for it is precisely when there is no state law on point that the
presumption that circuits have local expertise plays any useful role.
When a circuit’s resolution of a novel question of state law is grounded on
a concededly complete review of all the pertinent state-law materials, that
decision is entitled to deference. Additionally, it should be noted that this
is not a case in which the Court of Appeals and the District Court dis
agreed on the relevant issue of state law; rather, those courts disagreed
only over the extent to which a probable-cause determination requires the
exercise of discretion. Compare 366 F. 3d, at 1105–1110, with App. to Pet.
for Cert. 122a (District Court opinion).

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Colorado Supreme Court.3 Powerful considerations support
certification in this case. First, principles of federalism and
comity favor giving a State’s high court the opportunity to
answer important questions of state law, particularly when
those questions implicate uniquely local matters such as law
enforcement and might well require the weighing of policy
considerations for their correct resolution.4 See Elkins v.
Moreno, 435 U. S. 647, 662, n. 16 (1978) (sua sponte certifying
a question of state law because it is “one in which state gov
ernments have the highest interest”); cf. Arizonans for Of
ficial English v. Arizona, 520 U. S. 43, 77 (1997) (“Through
certification of novel or unsettled questions of state law for
authoritative answers by a State’s highest court, a federal
court may save ‘time, energy, and resources, and hel[p] build
a cooperative judicial federalism’ ” (brackets in original)).5
3 See Colo. Rule App. Proc. 21.1(a) (Colorado Supreme Court may an
swer questions of law certified to it by the Supreme Court of the United
States or another federal court if those questions “may be determinative
of the cause” and “as to which it appears to the certifying court there is no
controlling precedent in the decisions of the [Colorado] Supreme Court”).
4 See Westminster v. Dogan Constr. Co., 930 P. 2d 585, 590 (Colo. 1997)
(en banc) (in interpreting an ambiguous statute, the Colorado Supreme
Court will consider legislative history and the “consequences of a particu
lar construction”); ibid. (“ ‘Because we also presume that legislation is in
tended to have just and reasonable effects, we must construe statutes
accordingly and apply them so as to ensure such results’ ”). Additionally,
it is possible that the Colorado Supreme Court would have better access
to (and greater facility with) relevant pieces of legislative history beyond
those that we have before us. That court may also choose to give certain
evidence of legislative intent greater weight than would be customary for
this Court. See, e. g., Brief for Peggy Kerns et al. as Amici Curiae (bill
sponsor explaining the Colorado General Assembly’s intent in passing the
domestic restraining order statute).
5 Citing similar considerations, the Second Circuit certified questions of
state law to the Connecticut Supreme Court when it was faced with a
procedural due process claim involving a statute that arguably mandated
the removal of children upon probable cause of child abuse. See Sealed
v. Sealed, 332 F. 3d 51 (2003). The Connecticut Supreme Court accepted

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Second, by certifying a potentially dispositive state-law
issue, the Court would adhere to its wise policy of avoiding
the unnecessary adjudication of difficult questions of consti
tutional law. See Elkins, 435 U. S., at 661–662 (citing con
stitutional avoidance as a factor supporting certification).
Third, certification would promote both judicial economy and
fairness to the parties. After all, the Colorado Supreme
Court is the ultimate authority on the meaning of Colorado
law, and if in later litigation it should disagree with this
Court’s provisional state-law holding, our efforts will have
been wasted and respondent will have been deprived of the
opportunity to have her claims heard under the authoritative
view of Colorado law. The unique facts of this case only
serve to emphasize the importance of employing a procedure
that will provide the correct answer to the central question
of state law. See Brockett, 472 U. S., at 510 (O’Connor, J.,
concurring) (“Speculation by a federal court about the mean
ing of a state statute in the absence of a prior state court
adjudication is particularly gratuitous when, as is the case
here, the state courts stand willing to address questions of
state law on certification from a federal court”).6
certification and held that the provision was discretionary, not mandatory.
See Teresa T. v. Ragaglia, 272 Conn. 734, 865 A. 2d 428 (2005).
6 The Court is correct that I would take an “anyone-but-us approach,”
ante, at 758, n. 5, to the question of who decides the issue of Colorado
law in this case. Both options that I favor—deferring to the Circuit’s
interpretation or, barring that, certifying to the Colorado Supreme
Court—recognize the comparative expertise of another tribunal on ques
tions of state law. And both options offer their own efficiencies. By con
trast, the Court’s somewhat overconfident “only us” approach lacks any
cogent justification. The fact that neither party requested certification
certainly cannot be a sufficient reason for dismissing that option. As with
abstention, the considerations that weigh in favor of certification—
federal-state comity, constitutional avoidance, judicial efficiency, the desire
to settle correctly a recurring issue of state law—transcend the interests
of individual litigants, rendering it imprudent to cast them as gatekeepers
to the procedure. See, e. g., Elkins v. Moreno, 435 U. S. 647, 662 (1978)
(certifying state-law issue absent a request from the parties); Aldrich

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III
Three flaws in the Court’s rather superficial analysis of the
merits highlight the unwisdom of its decision to answer the
state-law question de novo. First, the Court places undue
weight on the various statutes throughout the country that
seemingly mandate police enforcement but are generally un
derstood to preserve police discretion. As a result, the
Court gives short shrift to the unique case of “mandatory
arrest” statutes in the domestic violence context; States
passed a wave of these statutes in the 1980’s and 1990’s with
the unmistakable goal of eliminating police discretion in this
area. Second, the Court’s formalistic analysis fails to take
seriously the fact that the Colorado statute at issue in this
case was enacted for the benefit of the narrow class of per
sons who are beneficiaries of domestic restraining orders,
and that the order at issue in this case was specifically in
tended to provide protection to respondent and her children.
Finally, the Court is simply wrong to assert that a citizen’s
interest in the government’s commitment to provide police
enforcement in certain defined circumstances does not re
semble any “traditional conception of property,” ante, at 766;
in fact, a citizen’s property interest in such a commitment is
just as concrete and worthy of protection as her interest in
any other important service the government or a private
firm has undertaken to provide.
In 1994, the Colorado General Assembly passed omnibus
legislation targeting domestic violence. The part of the leg
islation at issue in this case mandates enforcement of a do
mestic restraining order upon probable cause of a violation,
§ 18–6–803.5(3), while another part directs that police officers
“shall, without undue delay, arrest” a suspect upon “probable
cause to believe that a crime or offense of domestic violence
v. Aldrich, 375 U. S. 249 (1963) (per curiam) (same); see also 17A C.
Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4248,
p. 176 (2d ed. 1988) (“Ordinarily a court will order certification on its
own motion”).

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has been committed,” § 18–6–803.6(1).7 In adopting this leg
islation, the Colorado General Assembly joined a nationwide
movement of States that took aim at the crisis of police un
derenforcement in the domestic violence sphere by imple
menting “mandatory arrest” statutes. The crisis of under
enforcement had various causes, not least of which was the
perception by police departments and police officers that do
mestic violence was a private, “family” matter and that ar
rest was to be used as a last resort. Sack, Battered Women
and the State: The Struggle for the Future of Domestic Vio
lence Policy, 2004 Wis. L. Rev. 1657, 1662–1663 (hereinafter
Sack); id., at 1663 (“Because these cases were considered
noncriminal, police assigned domestic violence calls low pri
ority and often did not respond to them for several hours or
ignored them altogether”). In response to these realities,
and emboldened by a well-known 1984 experiment by the
Minneapolis police department,8 “many states enacted man
7 See Fuller & Stansberry, 1994 Legislature Strengthens Domestic Vio
lence Protective Orders, 23 Colo. Lawyer 2327 (1994) (“The 1994 Colorado
legislative session produced several significant domestic abuse bills that
strengthened both civil and criminal restraining order laws and proce
dures for victims of domestic violence”); id., at 2329 (“Although many law
enforcement jurisdictions already take a proactive approach to domestic
violence, arrest and procedural policies vary greatly from one jurisdiction
to another. H. B. 94–1253 mandates the arrest of domestic violence per
petrators and restraining order violaters. H. B. 94–1090 repeals the re
quirement that protected parties show a copy of their restraining order to
enforcing officers. In the past, failure to provide a copy of the restraining
order has led to hesitation from police to enforce the order for fear of an
illegal arrest. The new statute also shields arresting officers from liabil
ity; this is expected to reduce concerns about enforcing the mandatory
arrest requirements” (footnotes omitted)).
8 See Sack 1669 (“The movement to strengthen arrest policies was bol
stered in 1984 by the publication of the results of a study on mandatory
arrest in domestic violence cases that had been conducted in Minneapolis.
In this study, police handled randomly assigned domestic violence offend
ers by using one of three different responses: arresting the offender, medi
ating the dispute or requiring the offender to leave the house for eight
hours. The study concluded that in comparison with the other two re

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datory arrest statutes under which a police officer must ar
rest an abuser when the officer has probable cause to believe
that a domestic assault has occurred or that a protection
order has been violated.” Developments in the Law: Legal
Responses to Domestic Violence, 106 Harv. L. Rev. 1498, 1537
(1993). The purpose of these statutes was precisely to
“counter police resistance to arrests in domestic violence
cases by removing or restricting police officer discretion;
mandatory arrest policies would increase police response and
reduce batterer recidivism.” Sack 1670.
Thus, when Colorado passed its statute in 1994, it joined
the ranks of 15 States that mandated arrest for domestic
violence offenses and 19 States that mandated arrest for do
mestic restraining order violations. See Developments in
the Law, 106 Harv. L. Rev., at 1537, n. 68 (noting statutes
in 1993); N. Miller, Institute for Law and Justice, A Law
Enforcement and Prosecution Perspective 7, and n. 74, 8, and
n. 90 (2003), http://www.ilj.org/dv/dvvawa2000.htm (as visited
June 24, 2005, and available in Clerk of Court’s case file) (list
ing Colorado among the many States that currently have
mandatory arrest statutes).9
Given the specific purpose of these statutes, there can be
no doubt that the Colorado Legislature used the term “shall”
advisedly in its domestic restraining order statute. While
sponses, arrest had a significantly greater impact on reducing domestic
violence recidivism. The findings from the Minneapolis study were used
by the U. S. Attorney General in a report issued in 1984 that recom
mended, among other things, arrest in domestic violence cases as the
standard law enforcement response” (footnotes omitted)); see also Zorza,
The Criminal Law of Misdemeanor Domestic Violence, 1970–1990, 83 J.
Crim. L. & C. 46, 63–65 (1992) (tracing history of mandatory arrest laws
and noting that the first such law was implemented by Oregon in 1977).
9 See also Brief for International Municipal Lawyers Association et al.
as Amici Curiae 6 (“Colorado is not alone in mandating the arrest of
persons who violate protective orders. Some 19 states require an arrest
when a police officer has probable cause to believe that such orders have
been violated” (collecting statutes)).

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“shall” is probably best read to mean “may” in other Colo
rado statutes that seemingly mandate enforcement, cf. Colo.
Rev. Stat. § 31–4–112 (Lexis 2004) (police “shall suppress all
riots, disturbances, and breaches of the peace, shall appre
hend all disorderly persons in the city . . . ” (emphasis
added)), it is clear that the elimination of police discretion
was integral to Colorado and its fellow States’ solution to the
problem of underenforcement in domestic violence cases.10
Since the text of Colorado’s statute perfectly captures this
legislative purpose, it is hard to imagine what the Court has
in mind when it insists on “some stronger indication from the
Colorado Legislature.” Ante, at 761.
While Colorado case law does not speak to the question, it
is instructive that other state courts interpreting their anal
ogous statutes have not only held that they eliminate the
police’s traditional discretion to refuse enforcement, but have
10 See Note, Mandatory Arrest: A Step Toward Eradicating Domestic
Violence, But is It Enough? 1996 U. Ill. L. Rev. 533, 541–542, 544–546
(describing the problems that attend a discretionary arrest regime: “Even
when probable cause is present, police officers still frequently try to calm
the parties and act as mediators. . . . Three studies found the arrest rate
to range between 3% and 10% when the decision to arrest is left to police
discretion. Another study found that the police made arrests in only 13%
of the cases where the victim had visible injuries. . . . Police officers often
employ irrelevant criteria such as the ‘reason’ for the abuse or the severity
of the victim’s injuries in making their decision to arrest. . . . Some [offi
cers] may feel strongly that police should not interfere in family argu
ments or lovers’ quarrels. Such attitudes make police much more likely
to investigate intent and provocation, and consider them as mitigating fac
tors, in responding to domestic violence calls than in other types of cases”
(footnotes omitted)); see also Walsh, The Mandatory Arrest Law: Police
Reaction, 16 Pace L. Rev. 97, 98 (1995). Cf. Sack 1671–1672 (“Mandatory
arrest policies have significantly increased the number of arrests of batter
ers for domestic violence crimes. . . . In New York City, from 1993, the
time the mandatory arrest policy was instituted, to 1999, felony domestic
violence arrests increased 33%, misdemeanor domestic violence arrests
rose 114%, and arrests for violation of orders of protection were up 76%”).

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also recognized that they create rights enforceable against
the police under state law. For example, in Nearing v.
Weaver, 295 Ore. 702, 670 P. 2d 137 (1983) (en banc), the court
held that although the common law of negligence did not sup
port a suit against the police for failing to enforce a domestic
restraining order, the statute’s mandatory directive formed
the basis for the suit because it was “a specific duty imposed
by statute for the benefit of individuals previously identified
by judicial order.” Id., at 707, 670 P. 2d, at 140.11 In Mat
thews v. Pickett County, 996 S. W. 2d 162 (Tenn. 1999) (on
certification to the Sixth Circuit), the court confirmed that
the statute mandated arrest for violations of domestic re
straining orders, and it held that the “public duty” defense to
a negligence action was unavailable to the defendant police
officers because the restraining order had created a “special
duty” to protect the plaintiff. Id., at 165. See also Camp
bell v. Campbell, 294 N. J. Super. 18, 24, 682 A. 2d 272, 274
(1996) (domestic restraining order statute “allows no discre
tion” with regard to arrest; “[t]he duty imposed on the police
officer is ministerial”); Donaldson v. Seattle, 65 Wash. App.
661, 670, 831 P. 2d 1098, 1103 (1992) (“Generally, where an
officer has legal grounds to make an arrest he has consider
able discretion to do so. In regard to domestic violence, the
rule is the reverse. If the officer has the legal grounds to
arrest pursuant to the statute, he has a mandatory duty to
make the arrest”). To what extent the Colorado Supreme
Court would agree with the views of these courts is, of
course, an open question, but it does seem rather brazen for
the majority to assume that the Colorado Supreme Court
11 The Oregon Supreme Court noted that the “widespread refusal or
failure of police officers to remove persons involved in episodes of domestic
violence was presented to the legislature as the main reason for tightening
the law so as to require enforcement of restraining orders by mandatory
arrest and custody.” Nearing, 295 Ore., at 709, 670 P. 2d, at 142.

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would repudiate this consistent line of persuasive authority
from other States.
Indeed, the Court fails to come to terms with the wave of
domestic violence statutes that provides the crucial context
for understanding Colorado’s law. The Court concedes that,
“in the specific context of domestic violence, mandatory
arrest statutes have been found in some States to be more
mandatory than traditional mandatory-arrest statutes,”
ante, at 762, but that is a serious understatement. The dif
ference is not a matter of degree, but of kind. Before this
wave of statutes, the legal rule was one of discretion; as the
Court shows, the “traditional,” general mandatory arrest
statutes have always been understood to be “mandatory” in
name only, see ante, at 760. The innovation of the domestic
violence statutes was to make police enforcement, not “more
mandatory,” but simply mandatory. If, as the Court says,
the existence of a protected “entitlement” turns on whether
“government officials may grant or deny it in their discre
tion,” ante, at 756, the new mandatory statutes undeniably
create an entitlement to police enforcement of restraining
orders.
Perhaps recognizing this point, the Court glosses over the
dispositive question—whether the police enjoyed discretion
to deny enforcement—and focuses on a different question—
which “precise means of enforcement,” ante, at 763, were
called for in this case. But that question is a red herring.
The statute directs that, upon probable cause of a violation,
“a peace officer shall arrest, or, if an arrest would be imprac
tical under the circumstances, seek a warrant for the arrest
of a restrained person.” Colo. Rev. Stat. § 18–6–803.5(3)(b)
(Lexis 1999). Regardless of whether the enforcement called
for in this case was arrest or the seeking of an arrest warrant
(the answer to that question probably changed over the
course of the night as the respondent gave the police more
information about the husband’s whereabouts), the crucial
point is that, under the statute, the police were required to
provide enforcement; they lacked the discretion to do noth

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ing.12 The Court suggests that the fact that “enforcement”
may encompass different acts infects any entitlement to en
forcement with “indeterminacy.” Ante, at 763. But this
objection is also unfounded. Our cases have never required
the object of an entitlement to be some mechanistic, unitary
thing. Suppose a State entitled every citizen whose income
was under a certain level to receive health care at a state
clinic. The provision of health care is not a unitary thing—
doctors and administrators must decide what tests are called
for and what procedures are required, and these decisions
often involve difficult applications of judgment. But it could
not credibly be said that a citizen lacks an entitlement to
health care simply because the content of that entitlement is
not the same in every given situation. Similarly, the en
forcement of a restraining order is not some amorphous, in
determinate thing. Under the statute, if the police have
probable cause that a violation has occurred, enforcement
consists of either making an immediate arrest or seeking a
warrant and then executing an arrest—traditional, well
defined tasks that law enforcement officers perform every
day.13
12 Under the Court’s reading of the statute, a police officer with probable
cause is mandated to seek an arrest warrant if arrest is “impractical under
the circumstances,” but then enjoys unfettered discretion in deciding
whether to execute that warrant. Ante, at 764. This is an unlikely read
ing given that the statute was motivated by a profound distrust of police
discretion in the domestic violence context and motivated by a desire to
improve the protection given to holders of domestic restraining orders.
We do not have the benefit of an authoritative construction of Colorado
law, but I would think that if an estranged husband harassed his wife in
violation of a restraining order, and then absconded after she called the
police, the statute would not only obligate the police to seek an arrest
warrant, but also obligate them to execute it by making an arrest. In
any event, under respondent’s allegations, by the time the police were
informed of the husband’s whereabouts, an arrest was practical and, under
the statute’s terms, mandatory.
13 The Court wonders “how the mandatory-arrest paradigm applies to
cases in which the offender is not present to be arrested.” Ante, at 762.
Again, questions as to the scope of the obligation to provide enforcement

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The Court similarly errs in speculating that the Colorado
Legislature may have mandated police enforcement of re
straining orders for “various legitimate ends other than the
conferral of a benefit on a specific class of people,” ante, at
765; see also ibid. (noting that the “serving of public rather
than private ends is the normal course of the criminal law”).
While the Court’s concern would have some bite were we
are far afield from the key issue—whether there exists an entitlement to
enforcement. In any event, the Court’s speculations are off base. First,
this is not a case like Donaldson v. Seattle, 65 Wash. App. 661, 831 P. 2d
1098 (1992), in which the restrained person violated the order and then
left the scene. Here, not only did the husband violate the restraining
order by coming within 100 yards of the family home, but he continued to
violate the order while his abduction of the daughters persisted. This is
because the restraining order prohibited him from “molest[ing] or disturb
[ing] the peace” of the daughters. See 366 F. 3d, at 1143 (appendix to
dissent of O’Brien, J.). Because the “scene” of the violation was wherever
the husband was currently holding the daughters, this case does not impli
cate the question of an officer’s duties to arrest a person who has left the
scene and is no longer in violation of the restraining order. Second, to
the extent that arresting the husband was initially “impractical under the
circumstances” because his whereabouts were unknown, the Colorado
statute (unlike some other States’ statutes) expressly addressed that situa
tion—it required the police to seek an arrest warrant. Third, the Court
is wrong to suggest that this case falls outside the core situation that these
types of statutes were meant to address. One of the well-known cases
that contributed to the passage of these statutes involved facts similar to
this case. See Sorichetti v. New York City, 65 N. Y. 2d 461, 467, 482 N. E.
2d 70, 74 (1985) (police officers at police station essentially ignored a moth
er’s pleas for enforcement of a restraining order against an estranged hus
band who made threats about their 6-year-old daughter; hours later, as
the mother persisted in her pleas, the daughter was found mutilated, her
father having attacked her with a fork and a knife and attempted to saw
off her leg); Note, 1996 U. Ill. L. Rev., at 539 (noting Sorichetti in the
development of mandatory arrest statutes); see also Sack 1663 (citing the
police’s failure to respond to domestic violence calls as an impetus behind
mandatory arrest statutes). It would be singularly odd to suppose that in
passing its sweeping omnibus domestic violence legislation, the Colorado
Legislature did not mean to require enforcement in the case of an abduc
tion of children in violation of a restraining order.

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Stevens, J., dissenting
faced with a broadly drawn statute directing, for example,
that the police “shall suppress all riots,” there is little doubt
that the statute at issue in this case conferred a benefit “on
a specific class of people”—namely, recipients of domestic re
straining orders. Here, respondent applied for and was
granted a restraining order from a Colorado trial judge, who
found a risk of “irreparable injury” and found that “physical
or emotional harm” would result if the husband were not
excluded from the family home. 366 F. 3d, at 1143 (appendix
to dissent of O’Brien, J.). As noted earlier, the restraining
order required that the husband not “molest or disturb” the
peace of respondent and the daughters, and it ordered (with
limited exceptions) that the husband stay at least 100 yards
away from the family home. Ibid.14 It also directed the
police to “use every reasonable means to enforce this . . .
order,” and to arrest or seek a warrant upon probable cause
of a violation. Id., at 1144. Under the terms of the statute,
when the order issued, respondent and her daughters
became “ ‘protected person[s].’ ” § 18–6–803.5(1.5)(a) (“ ‘Pro
tected person’ means the person or persons identified in the
restraining order as the person or persons for whose ben
efit the restraining order was issued”).15 The statute crim
inalized the knowing violation of the restraining order,
§ 18–6–803.5(1), and, as already discussed, the statute (as
14 The order also stated: “If you violate this order thinking that the
other party or child named in this order has given you permission, you
are wrong, and can be arrested and prosecuted. The terms of this order
cannot be changed by agreement of the other party or the child(ren).
Only the court can change this order.” 366 F. 3d, at 1144 (appendix to
dissent of O’Brien, J.).
15 A concern for the “ ‘protected person’ ” pervades the statute. For ex
ample, the statute provides that a “peace officer may transport, or obtain
transportation for, the alleged victim to shelter. Upon the request of the
protected person, the peace officer may also transport the minor child
of the protected person, who is not an emancipated minor, to the same
shelter . . . .” § 18–6–803.5(6)(a).

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well as the order itself ) mandated police enforcement,
§§ 18–6–803.5(3)(a)–(b).16
Because the statute’s guarantee of police enforcement is
triggered by, and operates only in reference to, a judge’s
granting of a restraining order in favor of an identified “ ‘pro
tected person,’ ” there is simply no room to suggest that such
a person has received merely an “ ‘incidental’ ” or “ ‘indirect’ ”
benefit, see ante, at 766–767. As one state court put it, do
mestic restraining order statutes “identify with precision
when, to whom, and under what circumstances police protec
tion must be afforded. The legislative purpose in requiring
the police to enforce individual restraining orders clearly is
to protect the named persons for whose protection the order
is issued, not to protect the community at large by gen
eral law enforcement activity.” Nearing, 295 Ore., at 712,
670 P. 2d, at 143.17 Not only does the Court’s doubt about
16 I find it neither surprising nor telling, cf. ante, at 766, that the statute
requires the restraining order to contain, “in capital letters and bold
print,” a “notice” informing protected persons that they can demand or
request, respectively, civil and criminal contempt proceedings. § 18–6–
803.5(7). While the legislature may have thought that these legal reme
dies were not popularly understood, a person’s right to “demand” or “re
quest” police enforcement of a restraining order simply goes without
saying given the nature of the order and its language. Indeed, for a
holder of a restraining order who has read the order’s emphatic language,
it would likely come as quite a shock to learn that she has no right to
demand enforcement in the event of a violation. To suggest that a pro
tected person has no such right would posit a lacuna between a protected
person’s rights and an officer’s duties—a result that would be hard to
reconcile with the Colorado Legislature’s dual goals of putting an end to
police indifference and empowering potential victims of domestic abuse.
17 See also Matthews v. Pickett County, 996 S. W. 2d 162, 165 (Tenn.
1999) (“The order of protection in this case was not issued for the public’s
protection in general. The order of protection specifically identified
Ms. Matthews and was issued solely for the purpose of protecting her.
Cf. Ezell [v. Cockrell, 902 S. W. 2d 394, 403 (Tenn. 1995)] (statute prohibit
ing drunk driving does not specify an individual but undertakes to protect
the public in general from intoxicated drivers)”); Sorichetti, 65 N. Y. 2d,
at 469, 482 N. E. 2d, at 75 (“The [protective] order evinces a preincident

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whether Colorado’s statute created an entitlement in a pro
tected person fail to take seriously the purpose and nature
of restraining orders, but it fails to account for the decisions
by other state courts, see supra, at 782–783, that recognize
that such statutes and restraining orders create individual
rights to police action.
IV
Given that Colorado law has quite clearly eliminated the
police’s discretion to deny enforcement, respondent is correct
that she had much more than a “unilateral expectation” that
the restraining order would be enforced; rather, she had a
“legitimate claim of entitlement” to enforcement. Roth, 408
U. S., at 577. Recognizing respondent’s property interest in
the enforcement of her restraining order is fully consistent
with our precedent. This Court has “made clear that the
property interests protected by procedural due process ex
tend well beyond actual ownership of real estate, chattels, or
money.” Id., at 571–572. The “types of interests protected
as ‘property’ are varied and, as often as not, intangible, relat
ing ‘to the whole domain of social and economic fact.’ ”
Logan v. Zimmerman Brush Co., 455 U. S. 422, 430 (1982);
see also Perry v. Sindermann, 408 U. S. 593, 601 (1972)
(“ ‘[P]roperty’ interests subject to procedural due process
protection are not limited by a few rigid, technical forms.
Rather, ‘property’ denotes a broad range of interests that
are secured by ‘existing rules or understandings’ ”). Thus,
our cases have found “property” interests in a number of
state-conferred benefits and services, including welfare bene
fits, Goldberg v. Kelly, 397 U. S. 254 (1970); disability bene
fits, Mathews v. Eldridge, 424 U. S. 319 (1976); public educa
tion, Goss v. Lopez, 419 U. S. 565 (1975); utility services,
Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1
(1978); government employment, Cleveland Bd. of Ed. v.
legislative and judicial determination that its holder should be accorded a
reasonable degree of protection from a particular individual”).

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Stevens, J., dissenting
Loudermill, 470 U. S. 532 (1985), as well as in other entitle
ments that defy easy categorization, see, e. g., Bell v. Burson,
402 U. S. 535 (1971) (due process requires fair procedures
before a driver’s license may be revoked pending the adju
dication of an accident claim); Logan, 455 U. S., at 431 (due
process prohibits the arbitrary denial of a person’s interest
in adjudicating a claim before a state commission).
Police enforcement of a restraining order is a government
service that is no less concrete and no less valuable than
other government services, such as education.18 The rela
tive novelty of recognizing this type of property interest is
explained by the relative novelty of the domestic violence
statutes creating a mandatory arrest duty; before this inno
vation, the unfettered discretion that characterized police
enforcement defeated any citizen’s “legitimate claim of enti
tlement” to this service. Novel or not, respondent’s claim
finds strong support in the principles that underlie our due
process jurisprudence. In this case, Colorado law guaran
teed the provision of a certain service, in certain defined cir
cumstances, to a certain class of beneficiaries, and respond
ent reasonably relied on that guarantee. As we observed in
Roth, “[i]t is a purpose of the ancient institution of property
to protect those claims upon which people rely in their daily
lives, reliance that must not be arbitrarily undermined.”
18 The Court mistakenly relies on O’Bannon v. Town Court Nursing
Center, 447 U. S. 773 (1980), in explaining why it is “by no means clear
that an individual entitlement to enforcement of a restraining order could
constitute a ‘property’ interest for purposes of the Due Process Clause.”
Ante, at 766. In O’Bannon, the question was essentially whether certain
regulations provided nursing-home residents with an entitlement to con
tinued residence in the home of their choice. 447 U. S., at 785. The
Court concluded that the regulations created no such entitlement, but
there was no suggestion that Congress could not create one if it wanted
to. In other words, O’Bannon did not address a situation in which the
underlying law created an entitlement, but the Court nevertheless refused
to treat that entitlement as a property interest within the meaning of the
Due Process Clause.

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408 U. S., at 577. Surely, if respondent had contracted with
a private security firm to provide her and her daughters with
protection from her husband, it would be apparent that
she possessed a property interest in such a contract. Here,
Colorado undertook a comparable obligation, and respond
ent—with restraining order in hand—justifiably relied on
that undertaking. Respondent’s claim of entitlement to this
promised service is no less legitimate than the other claims
our cases have upheld, and no less concrete than a hypotheti
cal agreement with a private firm.19 The fact that it is
based on a statutory enactment and a judicial order entered
for her special protection, rather than on a formal contract,
does not provide a principled basis for refusing to consider
it “property” worthy of constitutional protection.20
19 As the analogy to a private security contract demonstrates, a person’s
interest in police enforcement has “ ‘some ascertainable monetary value,’ ”
ante, at 766. Cf. Merrill, The Landscape of Constitutional Property, 86
Va. L. Rev. 885, 964, n. 289 (2000) (remarking, with regard to the property
interest recognized in Goss v. Lopez, 419 U. S. 565 (1975), that “any parent
who has contemplated sending their children to private schools knows that
public schooling has a monetary value”). And while the analogy to a pri
vate security contract need not be precise to be useful, I would point out
that the Court is likely incorrect in stating that private security guards
could not have arrested the husband under the circumstances, see ante, at
766–767, n. 12. Because the husband’s ongoing abduction of the daughters
would constitute a knowing violation of the restraining order, see n. 13,
supra, and therefore a crime under the statute, see § 18–6–803.5(1), a pri
vate person who was at the scene and aware of the circumstances of the
abduction would have authority to arrest. See § 16–3–201 (“A person who
is not a peace officer may arrest another person when any crime has been
or is being committed by the arrested person in the presence of the person
making the arrest”). Our cases, of course, have never recognized any
requirement that a property interest possess “ ‘some ascertainable mone
tary value.’ ” Regardless, I would assume that respondent would have
paid the police to arrest her husband if that had been possible; at the very
least, the entitlement has a monetary value in that sense.
20 According to Justice Souter, respondent has asserted a prop
erty interest in merely a “state-mandated process,” ante, at 771 (concur
ring opinion), rather than in a state-mandated “substantive guarantee,”

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V
Because respondent had a property interest in the enforce
ment of the restraining order, state officials could not de
prive her of that interest without observing fair proce
dures.21 Her description of the police behavior in this case
and the department’s callous policy of failing to respond
properly to reports of restraining order violations clearly al
ibid. This misunderstands respondent’s claim. Putting aside the inart
ful passage of respondent’s brief that Justice Souter relies upon, ante,
at 770, it is clear that respondent is in fact asserting a substantive interest
in the “enforcement of the restraining order,” Brief for Respondent 10.
Enforcement of a restraining order is a tangible, substantive act. If an
estranged husband violates a restraining order by abducting children, and
the police succeed in enforcing the order, the person holding the restrain
ing order has undeniably just received a substantive benefit. As in other
procedural due process cases, respondent is arguing that the police officers
failed to follow fair procedures in ascertaining whether the statutory crite
ria that trigger their obligation to provide enforcement—i. e., an outstand
ing order plus probable cause that it is being violated—were satisfied in
her case. Cf. Carey v. Piphus, 435 U. S. 247, 266–267 (1978) (discussing
analytic difference between the denial of fair process and the denial of the
substantive benefit itself). It is Justice Souter, not respondent, who
makes the mistake of “collapsing the distinction between property pro
tected and the process that protects it,” ante, at 772.
Justice Souter also errs in suggesting that respondent cannot have a
property interest in enforcement because she would not be authorized to
instruct the police to refrain from enforcement in the event of a violation.
Ante, at 770. The right to insist on the provision of a service is separate
from the right to refuse the service. For example, compulsory attendance
laws deny minors the right to refuse to attend school. Nevertheless, we
have recognized that minors have a property interest in public education
and that school officials must therefore follow fair procedures when they
seek to deprive minors of this valuable benefit through suspension. See
Goss, 419 U. S. 565. In the end, Justice Souter overlooks the core pur
pose of procedural due process—ensuring that a citizen’s reasonable reli
ance is not frustrated by arbitrary government action.
21 See Logan v. Zimmerman Brush Co., 455 U. S. 422, 432 (1982)
(“ ‘ “While the legislature may elect not to confer a property interest, . . .
it may not constitutionally authorize the deprivation of such an interest,
once conferred, without appropriate procedural safeguards” ’ ”).

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leges a due process violation. At the very least, due process
requires that the relevant state decisionmaker listen to the
claimant and then apply the relevant criteria in reaching his
decision.22 The failure to observe these minimal procedural
safeguards creates an unacceptable risk of arbitrary and “er
roneous deprivation[s],” Mathews, 424 U. S., at 335. Accord
ing to respondent’s complaint—which we must construe lib
erally at this early stage in the litigation, see Swierkiewicz
v. Sorema N. A., 534 U. S. 506, 514 (2002)—the process she
was afforded by the police constituted nothing more than a
“ ‘sham or a pretense.’ ” Joint Anti-Fascist Refugee Comm.
v. McGrath, 341 U. S. 123, 164 (1951) (Frankfurter, J.,
concurring).
Accordingly, I respectfully dissent.
22 See Fuentes v. Shevin, 407 U. S. 67, 81 (1972) (“[W]hen a person has
an opportunity to speak up in his own defense, and when the State must
listen to what he has to say, substantively unfair and simply mistaken
deprivations of property interests can be prevented” (emphasis added));
Bell v. Burson, 402 U. S. 535, 542 (1971) (“It is a proposition which hardly
seems to need explication that a hearing which excludes consideration of
an element essential to the decision whether licenses of the nature here
involved shall be suspended does not meet [the] standard [of due proc
ess]”); Goldberg v. Kelly, 397 U. S. 254, 271 (1970) (“[T]he decisionmaker’s
conclusion as to a recipient’s eligibility must rest solely on the legal rules
and evidence adduced at the hearing”); cf. ibid. (“[O]f course, an impartial
decision maker is essential”).

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OCTOBER TERM, 2004
Syllabus
BELL, WARDEN v. THOMPSON
certiorari to the united states court of appeals for
the sixth circuit
No. 04–514. Argued April 26, 2005—Decided June 27, 2005
After respondent Thompson was convicted of murder and sentenced to
death, Tennessee state courts denied postconviction relief on his claim
that his trial counsel had been ineffective for failing to adequately inves
tigate his mental health. His federal habeas attorneys subsequently
retained psychologist Dr. Sultan, whose report and deposition contended
that Thompson suffered from serious mental illness at the time of his
offense. The District Court dismissed the petition, but apparently
Thompson’s habeas counsel had failed to include Sultan’s deposition and
report in the record. Upholding the dismissal, the Sixth Circuit, inter
alia, found no ineffective assistance and did not discuss Sultan’s report
and deposition in detail. That court later denied rehearing, but stayed
issuance of its mandate pending disposition of Thompson’s certiorari pe
tition. After this Court denied certiorari on December 1, 2003, the
Sixth Circuit stayed its mandate again, pending disposition of a petition
for rehearing, which this Court denied on January 20, 2004. A copy of
that order was filed with the Sixth Circuit on January 23, but the court
did not issue its mandate. The State set Thompson’s execution date,
and state and federal proceedings began on his competency to be exe
cuted. Competency proceedings were pending in the Federal District
Court on June 23, 2004, when the Sixth Circuit issued an amended opin
ion in the federal habeas case, vacating the District Court’s habeas judg
ment and remanding the case for an evidentiary hearing on the
ineffective-assistance claim. The Sixth Circuit supplemented the rec
ord on appeal with Sultan’s deposition and explained that its authority
to issue an amended opinion five months after this Court denied rehear
ing was based on its inherent power to reconsider an opinion before
issuance of the mandate.
Held: Assuming that Federal Rule of Appellate Procedure 41 authorizes
a stay of a mandate following a denial of certiorari and that a court may
stay the mandate without entering an order, the Sixth Circuit’s decision
to do so here was an abuse of discretion. Pp. 801–814.
(a) This Court need not decide the scope of the court of appeals’ Rule
41 authority to withhold a mandate in order to resolve this case.
Pp. 801–804.

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Syllabus
(b) Prominent among the reasons warranting the result here is that
the Sixth Circuit did not release its amended opinion for more than five
months after this Court denied rehearing. The consequence of delay
for the State’s criminal justice system was compounded by the Sixth
Circuit’s failure to issue an order or otherwise give notice to the parties
that it was reconsidering its earlier opinion. The express terms of the
Sixth Circuit’s stay state that the mandate would be stayed until this
Court acted on the rehearing petition. Thus, once rehearing was de
nied, the stay dissolved by operation of law. Tennessee, relying on the
Sixth Circuit’s earlier orders and this Court’s certiorari and rehearing
denials could assume that the mandate would issue, especially since
Thompson sought no additional stay and the Sixth Circuit gave no indi
cation that it might be revisiting its earlier decision. The latter point
is important, for it is an open question whether a court may exercise its
Rule 41(b) authority to extend the time to issue a mandate through
mere inaction. Without a formal docket entry neither the parties nor
this Court had, or have, any way to know whether the Sixth Circuit had
stayed the mandate or simply made a clerical mistake. That court
could have spared the parties and state judicial system considerable
time and resources had it notified them that it was reviewing its deci
sion. The scheduling of Thompson’s execution and the resulting compe
tency proceedings were steps taken in reliance on the assumption that
the federal habeas case was final. That assumption was all the more
reasonable because the delay in issuing the mandate took place after
this Court had denied certiorari, which usually signals the end of litiga
tion. See Fed. Rule App. Proc. 41(d)(2)(D). The fact that the Sixth
Circuit had the opportunity at the rehearing stage to consider the same
arguments it eventually adopted in its amended opinion is yet another
factor supporting the determination here. A review of the Sultan
deposition also reinforces this conclusion. While the evidence would
have been relevant to the District Court’s analysis, it is not of such a
character as to warrant the Sixth Circuit’s extraordinary departure
from standard procedures. Finally, by withholding its mandate for
months—based on evidence supporting only an arguable constitutional
claim—while the State prepared to carry out Thompson’s sentence,
the Sixth Circuit did not accord the appropriate level of respect to
the State’s judgment that Thompson’s crimes merit the ultimate pun
ishment. See Calderon v. Thompson, 523 U. S. 538, 554– 557.
Pp. 804–813.
373 F. 3d 688, reversed.
Kennedy, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Scalia, and Thomas, JJ., joined. Breyer, J., filed

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BELL v. THOMPSON
Opinion of the Court
a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ.,
joined, post, p. 814.
Jennifer L. Smith, Associate Deputy Attorney General of
Tennessee, argued the cause for petitioner. With her on the
briefs were Paul G. Summers, Attorney General, Michael
E. Moore, Solicitor General, Gordon W. Smith, Associate So
licitor General, and Angele M. Gregory, Assistant Attorney
General.
Matthew M. Shors argued the cause pro hac vice for re
spondent. With him on the brief were Walter Dellinger,
Charles E. Borden, and Daniel T. Kobil.*
Justice Kennedy delivered the opinion of the Court.
This case requires us to consider whether, after we had
denied certiorari and a petition for rehearing, the Court of
Appeals had the power to withhold its mandate for more
than five months without entering a formal order. We hold
that, even assuming a court may withhold its mandate after
the denial of certiorari in some cases, the Court of Appeals’
decision to do so here was an abuse of discretion.
I
In 1985, Gregory Thompson and Joanna McNamara ab
ducted Brenda Blanton Lane from a store parking lot
in Shelbyville, Tennessee. After forcing Lane to drive
them to a remote location, Thompson stabbed her to death.
Thompson offered no evidence during the guilt phase of trial
and was convicted by a jury of first-degree murder.
Thompson’s defense attorneys concentrated their efforts
on persuading the sentencing jury that Thompson’s positive
*Kent S. Scheidegger filed a brief for the Criminal Justice Legal Founda
tion as amicus curiae urging reversal.
Paul R. Q. Wolfson, Noah A. Levine, and Joshua L. Dratel filed a brief
for the National Association of Criminal Defense Lawyers as amicus cu
riae urging affirmance.

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Opinion of the Court
qualities and capacity to adjust to prison life provided good
reasons for not imposing the death penalty. Before trial,
Thompson’s counsel had explored the issue of his mental con
dition. The trial judge referred Thompson to a state-run
mental health facility for a 30-day evaluation. The resulting
report indicated that Thompson was competent at the time
of the offense and at the time of the examination. The de
fense team retained their own expert, Dr. George Copple,
a clinical psychologist. At sentencing Copple testified that
Thompson was remorseful and still had the ability to work
and contribute while in prison. Thompson presented the
character testimony of a number of witnesses, including for
mer high school teachers, his grandparents, and two siblings.
Arlene Cajulao, Thompson’s girlfriend while he was sta
tioned with the Navy in Hawaii, also testified on his behalf.
She claimed that Thompson’s behavior became erratic after
he suffered head injuries during an attack by three of his
fellow servicemen. In rebuttal the State called Dr. Glenn
Watson, a clinical psychologist who led the pretrial evalua
tion of Thompson’s competence. Watson testified that his
examination of Thompson revealed no significant mental
illness.
The jury sentenced Thompson to death. His conviction
and sentence were affirmed on direct review. State v.
Thompson, 768 S. W. 2d 239 (Tenn. 1989), cert. denied, 497
U. S. 1031 (1990).
In his state postconviction petition, Thompson claimed his
trial counsel had been ineffective for failing to conduct an
adequate investigation into his mental health. Thompson
argued that his earlier head injuries had diminished his men
tal capacity and that evidence of his condition should have
been presented as mitigating evidence during the penalty
phase of trial. Under Tennessee law, mental illness that im
pairs a defendant’s capacity to appreciate the wrongfulness
of his conduct or to conform his conduct to the requirements
of the law is a mitigating factor in capital sentencing. Tenn.

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Code Ann. § 39–2–203( j)(8) (1982) (repealed); § 39–13–
204( j)(8) (Lexis 2003). The postconviction court denied re
lief following an evidentiary hearing, and the Tennessee
Court of Criminal Appeals affirmed. Thompson v. State,
958 S. W. 2d 156 (1997). The Tennessee Supreme Court de
nied discretionary review.
Thompson renewed his ineffective-assistance-of-counsel
claim on federal habeas. Thompson’s attorneys retained a
psychologist, Dr. Faye Sultan, to assist with the proceedings.
At this point, 13 years had passed since Thompson’s convic
tion. Sultan examined and interviewed Thompson three
times, questioned his family members, and conducted an ex
tensive review of his legal, military, medical, and prison rec
ords, App. 12, before diagnosing him as suffering from
schizoaffective disorder, bipolar type, id., at 20. She con
tended that Thompson’s symptoms indicated he was “suffer
ing serious mental illness at the time of the 1985 offense for
which he has been convicted and sentenced. This mental
illness would have substantially impaired Mr. Thompson’s
ability to conform his conduct to the requirements of the
law.” Ibid. Sultan prepared an expert report on Thomp
son’s behalf and was also deposed by the State.
In February 2000, the United States District Court for the
Eastern District of Tennessee granted the State’s motion for
summary judgment and dismissed the habeas petition. The
court held that Thompson failed to show that the state
court’s resolution of his claim rested on an unreasonable ap
plication of Supreme Court precedent or on an unreasonable
determination of the facts in light of the evidence presented
in state court. See 28 U. S. C. § 2254(d). The District
Court also stated that Thompson had not presented “any sig
nificant probative evidence that [he] was suffering from a
significant mental disease that should have been presented
to the jury during the punishment phase as mitigation.”
No. 4:98–cv–006 (ED Tenn., Feb. 17, 2000), App. to Pet. for

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Cert. 270. Sultan’s deposition and report, however, had ap
parently not been included in the District Court record.
While Thompson’s appeal to the Court of Appeals for the
Sixth Circuit was pending, he filed a motion in the District
Court under Federal Rule of Civil Procedure 60(b) request
ing that the court supplement the record with Sultan’s ex
pert report and deposition. Thompson’s habeas counsel at
the time explained that the failure to include the Sultan evi
dence in the summary judgment record was an oversight.
Thompson also asked the Court of Appeals to hold his case
in abeyance pending a ruling from the District Court and
attached the Sultan evidence in support of his motion.
The District Court denied the Rule 60(b) motion as un
timely, and the Court of Appeals denied Thompson’s mo
tion to hold his appeal in abeyance. On January 9, 2003, a
divided panel of the Court of Appeals affirmed the Dis
trict Court’s denial of habeas relief. Thompson v. Bell, 315
F. 3d 566. The lead opinion, authored by Judge Suhrhein
rich, reasoned that there was no ineffective assistance of
counsel because Thompson’s attorneys were aware of his
head injuries and made appropriate inquiries into his mental
fitness. Id., at 589–592. In particular, Thompson’s attor
neys had requested that the trial court order a competency
evaluation. A team of experts at the Middle Tennessee
Mental Health Institute, a state-run facility, found “no
mental illness, mental defect, or insanity.” Id., at 589.
Dr. George Copple, the clinical psychologist retained by
Thompson’s attorneys, also “found no evidence of mental ill
ness.” Ibid. Judge Suhrheinrich emphasized that none of
the experts retained by Thompson since trial had offered an
opinion on his mental condition at the time of the crime. Id.,
at 589–592. The lead opinion contained a passing reference
to Thompson’s unsuccessful Rule 60(b) motion, but did not
discuss the Sultan deposition or expert report in any detail.
Id., at 583, n. 13. Judge Moore concurred in the result based
on Thompson’s failure to present “evidence that his counsel

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knew or should have known either that Thompson was men
tally ill or that his mental condition was deteriorating at the
time of his trial or at the time of his crime.” Id., at 595.
Thompson filed a petition for rehearing. The petition
placed substantial emphasis on the Sultan evidence, quoting
from both her deposition and expert report. The Court of
Appeals denied the petition for rehearing and stayed the is
suance of its mandate pending the disposition of Thompson’s
petition for certiorari.
This Court denied certiorari on December 1, 2003. 540
U. S. 1051. The following day, Thompson filed a motion in
the Court of Appeals seeking to extend the stay of mandate
pending disposition of his petition for rehearing in this
Court. The Court of Appeals granted the motion and “or
dered that the mandate be stayed to allow appellant time to
file a petition for rehearing from the denial of the writ of
certiorari, and thereafter until the Supreme Court disposes
of the case.” App. to Pet. for Cert. 348. On January 20,
2004, this Court denied Thompson’s petition for rehearing.
540 U. S. 1158. A copy of the order was filed with the Court
of Appeals on January 23, 2004. The Court of Appeals, how
ever, did not issue its mandate.
The State, under the apparent assumption that the federal
habeas corpus proceedings had terminated, filed a motion be
fore the Tennessee Supreme Court requesting that an execu
tion date be set. The court scheduled Thompson’s execution
for August 19, 2004.
From February to June 2004, there were proceedings in
both state and federal courts related to Thompson’s present
competency to be executed under Ford v. Wainwright, 477
U. S. 399 (1986). The state courts, after considering Sultan’s
testimony (which was based in part on followup observa
tions after her initial 1998 examination) as well as that of
other experts, found Thompson competent to be executed.
Thompson v. State, 134 S. W. 3d 168 (Tenn. 2004). Thomp
son’s Ford claim was still pending before the Federal District

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Court when on June 23, 2004, some seven months after this
Court denied certiorari, the Court of Appeals for the Sixth
Circuit issued an amended opinion in Thompson’s initial fed
eral habeas case. 373 F. 3d 688. The new decision vacated
the District Court’s judgment denying habeas relief and re
manded the case for an evidentiary hearing on Thompson’s
ineffective-assistance-of-counsel claim. Id., at 691–692.
The Court of Appeals relied on its equitable powers to sup
plement the record on appeal with Sultan’s 1999 deposition
after finding that it was “apparently negligently omitted”
and “probative of Thompson’s mental state at the time of the
crime.” Id., at 691. The court also explained its authority
to issue an amended opinion five months after this Court
denied a petition for rehearing: “[W]e rely on our inher
ent power to reconsider our opinion prior to the issuance of
the mandate, which has not yet issued in this case.” Id., at
691–692. Judge Suhrheinrich authored a lengthy separate
opinion concurring in part and dissenting in part, which
explained that his chambers initiated the sua sponte re
consideration of the case. He agreed with the majority
about the probative value of the Sultan deposition, referring
to the evidence as “critical.” Id., at 733. Unlike the major
ity, however, Judge Suhrheinrich would have relied upon
fraud on the court to justify the decision to expand the rec
ord and issue an amended opinion. Id., at 725–726, 729–742.
He found “implausible” the explanation offered by Thomp
son’s habeas counsel for his failure to include the Sultan
deposition in the District Court record, id., at 742, and specu
lated that counsel “planned to unveil Dr. Sultan’s opinion on
the eve of Thompson’s execution,” id., at 738, n. 21.
We granted certiorari. 543 U. S. 1042 (2005).
II
At issue in this case is the scope of the Court of Appeals’
authority to withhold the mandate pursuant to Federal Rule
of Appellate Procedure 41. As relevant, the Rule provides:

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“(b) When Issued. The court’s mandate must issue 7
calendar days after the time to file a petition for rehear
ing expires, or 7 calendar days after entry of an order
denying a timely petition for panel rehearing, petition
for rehearing en banc, or motion for stay of mandate,
whichever is later. The court may shorten or extend
the time.
“(c) Effective Date. The mandate is effective when
issued.
“(d) Staying the Mandate.
“(1) On Petition for Rehearing or Motion. The
timely filing of a petition for panel rehearing, petition
for rehearing en banc, or motion for stay of mandate,
stays the mandate until disposition of the petition or mo
tion, unless the court orders otherwise.
“(2) Pending Petition for Certiorari.
“(A) A party may move to stay the mandate pending
the filing of a petition for a writ of certiorari in the Su
preme Court. The motion must be served on all parties
and must show that the certiorari petition would pre
sent a substantial question and that there is good cause
for a stay.
“(B) The stay must not exceed 90 days, unless the pe
riod is extended for good cause or unless the party who
obtained the stay files a petition for the writ and so noti
fies the circuit clerk in writing within the period of the
stay. In that case, the stay continues until the Supreme
Court’s final disposition.
. . . . .
“(D) The court of appeals must issue the mandate im
mediately when a copy of a Supreme Court order deny
ing the petition for writ of certiorari is filed.”
Tennessee argues that the Court of Appeals was required
to issue the mandate following this Court’s denial of Thomp
son’s petition for certiorari. The State’s position rests on
Rule 41(d)(2)(D), which states that “[t]he court of appeals

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must issue the mandate immediately when a copy of a Su
preme Court order denying the petition for writ of certiorari
is filed.” This provision, the State points out, admits of no
exceptions, so the mandate should have issued on the date
that a copy of this Court’s order denying certiorari was filed
with the Court of Appeals, i. e., December 8, 2003.
The State further contends that because the mandate
should have issued in December 2003, the Court of Appeals’
amended opinion was in essence a recall of the mandate. If
this view is correct, the Court of Appeals’ decision to revisit
its earlier opinion must satisfy the standard established by
Calderon v. Thompson, 523 U. S. 538 (1998). Calderon held
that “where a federal court of appeals sua sponte recalls its
mandate to revisit the merits of an earlier decision denying
habeas corpus relief to a state prisoner, the court abuses its
discretion unless it acts to avoid a miscarriage of justice as
defined by our habeas corpus jurisprudence.” Id., at 558.
See also Schlup v. Delo, 513 U. S. 298 (1995); Sawyer v. Whit
ley, 505 U. S. 333 (1992).
Thompson counters by arguing that Rule 41(d)(2)(D) is de
terminative only when the court of appeals enters a stay of
the mandate to allow the Supreme Court to dispose of a peti
tion for certiorari. The provision, Thompson says, does not
affect the court of appeals’ broad discretion to enter a stay
for other reasons. He relies on Rule 41(b), which provides
the court of appeals may “shorten or extend the time” in
which to issue the mandate. Because the authority vested
by Rule 41(b) is not limited to the period before a petition
for certiorari is denied, he argues that the Court of Appeals
had the authority to stay its mandate following this Court’s
denial of certiorari and rehearing. Although the Court of
Appeals failed to issue an order staying the mandate after
we denied rehearing, Thompson asserts that the court exer
cised its Rule 41(b) powers by simply failing to issue it.
To resolve this case, we need not adopt either party’s in
terpretation of Rule 41. Instead, we hold that—assuming,

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arguendo, that the Rule authorizes a stay of the mandate
following the denial of certiorari and also that a court may
stay the mandate without entering an order—here the Court
of Appeals abused its discretion in doing so.
III
We find an abuse of discretion for the following reasons.
Prominent among our concerns is the length of time be
tween this Court’s denial of certiorari and the Court of Ap
peals’ issuance of its amended opinion. We denied Thomp
son’s petition for certiorari in December 2003 and his petition
for rehearing one month later. From this last denial, how
ever, the Court of Appeals delayed issuing its mandate for
over five months, releasing its amended opinion in June.
The consequence of delay for the State’s criminal justice
system was compounded by the Court of Appeals’ failure to
issue an order or otherwise give notice to the parties that
the court was reconsidering its earlier opinion. The Court
of Appeals had issued two earlier orders staying its mandate.
The first order stayed the mandate pending disposition of
Thompson’s petition for certiorari. The second order ex
tended the stay to allow Thompson time to file a petition for
rehearing with this Court and “thereafter until the Supreme
Court disposes of the case.” So by the express terms of the
second order the mandate was not to be stayed after this
Court acted; and when we denied rehearing on January 20,
2004, the Court of Appeals’ second stay dissolved by opera
tion of law. Tennessee, acting in reliance on the Court of
Appeals’ earlier orders and our denial of certiorari and re
hearing, could assume that the mandate would—indeed
must—issue. While it might have been prudent for the
State to verify that the mandate had issued, it is understand
able that it proceeded to schedule an execution date.
Thompson, after all, had not sought an additional stay of the
mandate, and the Court of Appeals had given no indication
that it might be revisiting its earlier decision.

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This latter point is important. It is an open question
whether a court may exercise its Rule 41(b) authority to ex
tend the time for the mandate to issue through mere inac
tion. Even assuming, however, that a court could effect a
stay for a short period of time by withholding the mandate,
a delay of five months is different in kind. “Basic to the
operation of the judicial system is the principle that a court
speaks through its judgments and orders.” Murdaugh
Volkswagen, Inc. v. First National Bank of South Carolina,
741 F. 2d 41, 44 (CA4 1984). Without a formal docket entry
neither the parties nor this Court had, or have, any way to
know whether the court had stayed the mandate or simply
made a clerical mistake. Cf. Ballard v. Commissioner, 544
U. S. 40, 59–60 (2005). The dissent claims “the failure to
notify the parties was likely due to a simple clerical error”
on the part of the Clerk’s office. Post, at 825 (opinion of
Breyer, J.). The record lends no support to this specula
tion. The dissent also fails to explain why it is willing to
apply a “presumption of regularity” to the panel’s actions but
not to the Clerk’s. Ibid.
The Court of Appeals could have spared the parties and
the state judicial system considerable time and resources if
it had notified them that it was reviewing its original panel
decision. After we denied Thompson’s petition for rehear
ing, Tennessee scheduled his execution date. This, in turn,
led to various proceedings in state and federal court to deter
mine Thompson’s present competency to be executed. See,
e. g., Thompson v. State, 134 S. W. 3d 168 (Tenn. 2004). All
of these steps were taken in reliance on the mistaken impres
sion that Thompson’s first federal habeas case was final.
The State had begun to “invok[e] its entire legal and moral
authority in support of executing its judgment.” Calderon
v. Thompson, supra, at 556–557.
The parties’ assumption that Thompson’s habeas proceed
ings were complete was all the more reasonable because the
Court of Appeals’ delay in issuing its mandate took place

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after we had denied certiorari. As a practical matter, a de
cision by this Court denying discretionary review usually
signals the end of litigation. While Rule 41(b) may author
ize a court to stay the mandate after certiorari is denied, the
circumstances where such a stay would be warranted are
rare. See, e. g., First Gibraltar Bank, FSB v. Morales, 42
F. 3d 895 (CA5 1995); Alphin v. Henson, 552 F. 2d 1033 (CA4
1977). In the typical case, where the stay of mandate is en
tered solely to allow this Court time to consider a petition
for certiorari, Rule 41(d)(2)(D) provides the default: “The
court of appeals must issue the mandate immediately when
a copy of a Supreme Court order denying the petition for
writ of certiorari is filed.”
By providing a mechanism for correcting errors in the
courts of appeals before Supreme Court review is requested,
the Federal Rules of Appellate Procedure ensure that litiga
tion following the denial of certiorari will be infrequent.
See Fed. Rule App. Proc. 40(a) (“Unless the time is shortened
or extended by order or local rule, a petition for panel re
hearing may be filed within 14 days after entry of judg
ment”). See also Fed. Rules App. Proc. 35 (rehearing en
banc), 40 (panel rehearing).
Indeed, in this case Thompson’s petition for rehearing and
suggestion for rehearing en banc pressed the same argu
ments that eventually were adopted by the Court of Appeals
in its amended opinion. The Sultan evidence, first pre
sented to the Court of Appeals as an attachment to Thomp
son’s motion to hold his appeal in abeyance, was quoted
extensively in the petition for rehearing to the Court of
Appeals. Pet. for Rehearing and Suggestion for Rehearing
En Banc in No. 00–5516 (CA6), pp. 12–20, 28–31. After the
request for rehearing was denied, the State could have as
sumed with good reason that the Court of Appeals was not
impressed by Thompson’s arguments based on the Sultan
evidence. The court’s opportunity to consider these argu
ments at the rehearing stage is yet another factor supporting

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our determination that the decision to withhold the mandate
was in error. Cf. Calderon v. Thompson, 523 U. S., at 551–
553 (questioning whether a “mishandled law clerk transition”
and the “failure of another judge to notice the action pro
posed by the original panel” would justify recalling the man
date in a nonhabeas case).
The dissent’s explanation of how the Sultan evidence was
overlooked is inaccurate in several respects. For example,
the statements that the “Sultan documents were not in the
initial record on appeal,” post, at 821, and that “the panel
previously had not seen these documents” before the rehear
ing stage, post, at 822, convey the wrong impression. Al
though the Sultan evidence was not part of the District
Court’s summary judgment record, the documents were in
cluded in the certified record on appeal as attachments to
Thompson’s Rule 60(b) motion. Record 133; Docket Entry
4/5/02 in No. 4:98–cv–006 (ED Tenn.); Docket Entry 4/10/02
in No. 00–5516 (CA6). The dissent also argues the petition
for rehearing did not adequately bring the Sultan evidence
to the attention of the Court of Appeals. Post, at 822, 826.
This is simply untrue. The original panel opinion, which did
not discuss the Sultan evidence in any detail, emphasized
that Thompson had failed to produce any evidence that he
was mentally ill at the time of his offense. 315 F. 3d, at 590;
id., at 595–596 (Moore, J., concurring in result). The peti
tion for rehearing attacked this conclusion in no uncertain
terms and placed the Sultan evidence front and center.
Here, for example, is an excerpt from the petition’s table
of contents:
“II. THE CONCLUSION THAT THERE IS NO
EVIDENCE PRESENTED IN THE RECORD OF
THOMPSON’S MENTAL ILLESS AT THE TIME OF
THE CRIME IS WRONG
“A. Thompson Has Set Forth Above The Record
Facts Demonstrating His Mental Illness At The Time
Of The Crime

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“B. The Majority Overlooks The Facts And Expert
Opinion Set Forth In Dr. Sultan’s Report And Deposi
tion.” Pet. for Rehearing and Suggestion for Rehear
ing En Banc in No. 00–5516 (CA6), p. ii.
See also id., at 1 (mentioning the Sultan evidence in the
second paragraph of the statement in support of panel re
hearing). The rehearing petition did not explain why Sul
tan’s deposition and expert report had been omitted from the
summary judgment record, but that is beside the point. The
petition acknowledged that the Sultan evidence was first
presented to the District Court as an attachment to the Rule
60(b) motion, id., at 29, and gave the Sultan evidence a prom
inent and explicit mention in the table of contents. It is
difficult to see how Thompson’s counsel could have been
clearer in telling the Court of Appeals that it was wrong.
The dissent’s treatment of this issue assumes that judges for
get even the basic details of a capital case only one month
after issuing a 38-page opinion and that judges cannot be
relied upon to read past the first page of a petition for re
hearing. The problem is that the dissent cannot have it both
ways: If the Sultan evidence is as crucial as the dissent
claims, it would not easily have been overlooked by the
Court of Appeals at the rehearing stage.
Our review of the Sultan deposition reinforces our conclu
sion that the Court of Appeals abused its discretion by with
holding the mandate. Had the Sultan deposition and report
been fully considered in the federal habeas proceedings, it
no doubt would have been relevant to the District Court’s
analysis. Based on the Sultan deposition, Thompson could
have argued he suffered from mental illness at the time of
his crime that would have been a mitigating factor under
Tennessee law and that his trial attorneys were constitution
ally ineffective for failing to conduct an adequate investiga
tion into his mental health.
Relevant though the Sultan evidence may be, however, it
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extraordinary departure from standard appellate proce
dures. There are ample grounds to conclude the evidence
was unlikely to have altered the District Court’s resolution
of Thompson’s ineffective-assistance-of-counsel claim. Sul
tan examined Thompson for the first time on August 20,
1998, App. 37, some 13 years after Thompson’s crime and
conviction. She relied on the deterioration in Thompson’s
present mental health—something that obviously was not
observable at the time of trial—as evidence of his condition
in 1985. (Indeed, there was a marked decline in his condi
tion during the 6-month period between Sultan’s first two
visits. Id., at 51–58.) Sultan’s findings regarding Thomp
son’s condition in 1985 are contradicted by the testimony
of two experts who examined him at the time of trial,
Dr. Watson and Dr. Copple. Watson performed a battery
of tests at the Middle Tennessee Mental Health Institute,
where Thompson was referred by the trial court for an ex
amination, and concluded that Thompson “ ‘[did] not appear
to be suffering from any complicated mental disorder which
would impair his capacity to appreciate the wrongfulness of
the alleged offenses, or which would impair his capacity to
conform his conduct to the requirements of the law.’ ” 19
Tr. 164. Indeed, Watson presented substantial evidence
supporting his conclusion that Thompson was malingering
for mental illness. Id., at 151–152; 20 id., at 153–160. For
example, Thompson claimed he could not read despite a B
average in high school and one year’s college credit. 19 id.,
at 137; 20 id., at 151. Thompson’s test scores also indicated
that he was attempting to fake schizophrenia. 20 id., at
153–154. Copple, the psychologist retained by Thompson’s
defense team, agreed with Watson that Thompson was
not suffering from mental illness. 19 id., at 58. Had the
Sultan deposition been included in the District Court record,
Thompson still would have faced an uphill battle to obtaining
federal habeas relief. He would have had to argue that his
trial attorneys should have continued to investigate his men

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tal health even after both Watson and Copple had opined
that there was nothing to uncover.
Sultan’s testimony does not negate Thompson’s responsi
bility for committing the underlying offense, but it does bear
upon an argument that Thompson’s attorneys could have
presented at sentencing. Sultan’s ultimate conclusion—that
Thompson’s mental illness substantially impaired his ability
to conform his conduct to the requirements of the law—is
couched in the language of a mitigating factor under Tennes
see law. Tenn. Code Ann. § 39–2–203( j)(8) (1982). See also
§ 39–13–204( j)(8) (Lexis 2003). Thompson’s trial attorneys,
however, chose not to pursue a mitigation strategy based
on mental illness, stressing instead character evidence from
family and friends and expert testimony that he had the ca
pacity to adjust to prison. Thompson v. State, 958 S. W.
2d, at 164–165. This strategic calculation, while ultimately
unsuccessful, was based on a reasonable investigation into
Thompson’s background. Sultan relied on three witnesses
in preparing her report: Thompson’s grandmother, sister,
and ex-girlfriend. These witnesses not only were inter
viewed by the defense attorneys; they testified at sentencing.
Consultation with these witnesses, when combined with the
opinions of Watson and Copple, provided an adequate basis
for Thompson’s attorneys to conclude that focusing on
Thompson’s mental health was not the best strategy. As
the Tennessee Court of Criminal Appeals noted, “Because
two experts did not detect brain damage, counsel cannot be
faulted for discarding a strategy that could not be supported
by a medical opinion.” Id., at 165.
Without a single citation to the record, the dissent sug
gests that Thompson’s attorneys failed to conduct adequate
interviews of the defense witnesses on whom Sultan relied
in her report. Post, at 827–828. Most of the information
on Thompson’s childhood was provided to Sultan by Nora
Jean Wharton, Thompson’s older sister. App. 16–18. Set

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ting aside the fact that Thompson did not argue in state
court that his counsel’s interview of Wharton was inade
quate, Thompson v. State, supra, at 160–169, Thompson’s at
torneys cannot be faulted for failing to elicit from her any
details on Thompson’s difficult home life. After all, Whar
ton testified at trial that Thompson’s childhood was “poor,”
but “very happy.” 18 Tr. 3. The dissent also implies that
the experts who examined Thompson lacked information
necessary to reach an accurate assessment. The record re
futes this assertion. In conducting his examination, Watson
had access to Thompson’s social history and military records.
19 id., at 149; 20 id., at 186 (Exh. 102, pp. 11, 27–28). Watson
was also aware of the prior head injuries as well as Thomp
son’s claim that he heard voices. 19 id., at 152; 20 id.,
at 154–155. Nevertheless, Watson, whose evaluation was
contemporaneous with the trial, found no evidence that
Thompson was mentally ill at the time of the crime. Wat
son’s report was unequivocal on this point:
“ ‘Mr. Thompson’s speech and communication were co
herent, rational, organized, relevant, and devoid of cir
cumstantiality, tangentiality, looseness of associations,
paranoid ideation, ideas of reference, delusions, and
other indicators of a thought disorder. His affect was
appropriate to his thought content, and he exhibited no
flight of ideas, manic, depressed, or bizarre behaviors,
and his speech was not pressured nor rapid. He exhib
ited none of the signs of an affective illness. His judg
ment and insight are rather poor. Psychological testing
revealed him to be functioning in the average range
intellectually, to exhibit no signs of organicity or brain
damage on the Bender-Gestalt Test and the Bender
Interference Procedure. Personality profiles revealed
no evidence of a psychosis, but indicated malinger
ing in the mental illness direction. (For example, the
schizophrenic score was at T 120, while clinical obser

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vations revealed no evidence of a thought disorder.)
Mr. Thompson’s memory for recent and remote events
appeared unimpaired.’ ” 20 id., at 159–160.
Sultan’s testimony provides some support for the argu
ment that the strategy of emphasizing Thompson’s positive
attributes was a mistake in light of Thompson’s deteriorated
condition 13 years after the trial. This evidence, however,
would not come close to satisfying the miscarriage of justice
standard under Calderon had the Court of Appeals recalled
the mandate. Neither, in our view, did this evidence justify
the Court of Appeals’ decision to withhold the mandate with
out notice to the parties, which in turn led the State to pro
ceed for five months on the mistaken assumption that the
federal habeas proceedings had terminated. The dissent
suggests that failing to take account of the Sultan evidence
would result in a “miscarriage of justice,” post, at 814–815,
828, but the dissent uses that phrase in a way that is incon
sistent with our precedents. In Sawyer v. Whitley, 505
U. S., at 345–347, this Court held that additional mitigating
evidence could not meet the miscarriage of justice standard.
Only evidence that affects a defendant’s eligibility for the
death penalty—which the Sultan evidence is not—can sup
port a miscarriage of justice claim in the capital sentencing
context. Id., at 347; Calderon, 523 U. S., at 559–560.
One last consideration informs our review of the Court of
Appeals’ actions. In Calderon, we held that federalism con
cerns, arising from the unique character of federal habeas
review of state-court judgments, and the policies embodied
in the Antiterrorism and Effective Death Penalty Act of 1996
required an additional presumption against recalling the
mandate. This case also arises from federal habeas corpus
review of a state conviction. While the State’s reliance in
terest is not as strong in a case where, unlike Calderon, the
mandate has not issued, the finality and comity concerns that
animated Calderon are implicated here. Here a dedicated
judge discovered what he believed to have been an error,

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Opinion of the Court
and we are respectful of the Court of Appeals’ willingness
to correct a decision that it perceived to have been mistaken.
A court’s discretion under Rule 41 must be exercised, how
ever, in a way that is consistent with the “ ‘State’s interest
in the finality of convictions that have survived direct review
within the state court system.’ ” Id., at 555 (quoting Brecht
v. Abrahamson, 507 U. S. 619, 635 (1993)). Tennessee ex
pended considerable time and resources in seeking to en
force a capital sentence rendered 20 years ago, a sentence
that reflects the judgment of the citizens of Tennessee that
Thompson’s crimes merit the ultimate punishment. By
withholding the mandate for months—based on evidence that
supports only an arguable constitutional claim—while the
State prepared to carry out Thompson’s sentence, the Court
of Appeals did not accord the appropriate level of respect
to that judgment. See Calderon v. Thompson, supra, at
554–557.
The Court of Appeals may have been influenced by Sul
tan’s unsettling account of Thompson’s condition during one
of her visits. She described Thompson as being in “terrible
psychological condition,” “physically filthy,” and “highly agi
tated.” App. 51. This testimony raised questions about
Thompson’s deteriorating mental health and perhaps his
competence to be executed, but these concerns were prop
erly addressed in separate proceedings. Based on the most
recent state-court decision, which rejected the argument
that Thompson is not competent to be executed, it appears
that his condition has improved. Thompson v. State, 134
S. W. 3d, at 184–185. Proceedings on this issue were under
way in the District Court when the Court of Appeals issued
its second opinion. If those proceedings resume, the Dis
trict Court will have an opportunity to address these mat
ters again and in light of the current evidence.
Taken together these considerations convince us that the
Court of Appeals abused any discretion Rule 41 arguably
granted it to stay its mandate, without entering a formal

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order, after this Court had denied certiorari. The judgment
of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered.
Justice Breyer, with whom Justice Stevens, Justice
Souter, and Justice Ginsburg join, dissenting.
This capital case arises out of unusual circumstances—cir
cumstances of a kind that I have not previously experienced
in the 25 years I have served on the federal bench. After
an appellate court writes and releases an opinion, but before
it issues its mandate, the writing judge, through happen
stance, comes across a document that (he reasonably be
lieves) shows not only that the court’s initial decision is
wrong but that the decision will lead to a serious miscarriage
of justice. What is the judge to do?
What the judge did here was to spend time—hundreds of
hours (while a petition for certiorari was pending before this
Court and during the five months following our denial of the
petition for rehearing)—reviewing the contents of the vast
record with its many affidavits, reports, transcripts, and
other documents accumulated in the course of numerous
state and federal proceedings during the preceding 20 years.
The judge ultimately concluded that his initial instinct about
the document was correct. The document was critically im
portant. It could affect the outcome of what is, and has al
ways been, the major issue in the case. To consider the case
without reference to it could mean a miscarriage of justice.
The judge consequently wrote a lengthy opinion (almost
30,000 words) explaining what had happened. The other
members of the panel did not agree with everything in that
opinion, but they did agree that their initial decision must
be vacated.
The Court commendably describes what occurred as fol
lows: A “dedicated judge discovered what he believed to
have been an error, and we are respectful of the Court of
Appeals’ willingness to correct a decision that it perceived

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to have been mistaken.” Ante, at 812–813. The Court,
however, does not decide this case in a manner consistent
with that observation. A somewhat more comprehensive
account of the nature of the “error”—of the matter at stake,
of the importance of the document, of the mystery of its late
appearance, of the potential for a miscarriage of justice—
should help make apparent the difficult circumstance the
panel believed it faced. It will also explain why there was
no “abuse” of discretion in the panel’s effort to “correct a
decision that it perceived to have been mistaken.”
I
Judge Suhrheinrich, the panel member who investigated
the record, is an experienced federal judge, serving since
1984 as a federal trial court judge and since 1990 as a federal
appellate judge. He wrote a lengthy account of the circum
stances present here. To understand this case, one must
read that full account and then compare it with the Court’s
truncated version. I provide a rough summary of the mat
ter based upon my own reading of his opinion. 373 F. 3d
688, 692–742 (CA6 2004) (opinion concurring in part and dis
senting in part).
A
The panel’s initial decision, issued on January 9, 2003, fo
cused upon an issue often raised when federal habeas courts
review state proceedings in a capital case, namely, the effec
tiveness of counsel at the original trial. Thompson v. Bell,
315 F. 3d 566, 587–594. See Strickland v. Washington, 466
U. S. 668 (1984). In this instance, the federal ineffective
assistance claim was that state trial counsel had not
sufficiently investigated the background of the defendant,
Gregory Thompson. Thompson claimed that an adequate in
vestigation would have shown, to the satisfaction of testify
ing experts, that he suffered from episodes of schizophrenia
at the time of the crime. The schizophrenia—though epi

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sodic—would have proved a mitigating circumstance at the
penalty phase. 373 F. 3d, at 697–698, and n. 4.
Thompson’s trial took place in a Tennessee state court,
where he was found guilty of murder and sentenced to death.
His state-appointed counsel put on no defense at trial. At
sentencing, however, counsel sought to show that Thompson
was schizophrenic. State forensic psychologists examined
Thompson and concluded that Thompson, probably “malin
gering,” did not show genuine and significant symptoms of
schizophrenia at that time and was not mentally ill. A clini
cal psychologist hired by Thompson’s counsel examined
Thompson for eight hours and reached approximately the
same conclusion: He said that Thompson was not then men
tally ill. Id., at 692, 694–695.
Thompson raised the issue of his mental condition in state
postconviction proceedings, which he initiated in 1990. His
expert witness, Dr. Gillian Blair, testified (with much sup
portive material) that Thompson was by that time clearly
displaying serious schizophrenic symptoms—voice illusions,
attempts at physical self-mutilation, and the like. Indeed,
the State conceded that he was under a regime of major anti
psychotic medication. But Dr. Blair said that she could not
determine whether Thompson had been similarly afflicted
(i. e., suffering from episodes of schizophrenia) at the time
of the crime without a thorough background investigation—
funds for which the state court declined to make available.
The state court then ruled in the State’s favor. Id., at
694–695.
Thompson filed a habeas petition in Federal District Court
about eight months after the state court’s denial of postcon
viction relief became final. As I said above, see supra, at
815 and this page, he claimed ineffective assistance of coun
sel. The Federal District Court appointed counsel, an as
sistant federal public defender. Counsel then obtained the
services of two experts, Dr. Barry Crown and Dr. Faye Sul
tan. Both examined Thompson, and the latter, Dr. Sultan,

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conducted the more thorough background investigation that
Dr. Blair had earlier sought. The State, after deposing
Dr. Sultan, moved for summary judgment. 373 F. 3d, at
696, 700–704, 711.
The District Court granted that motion on the ground that
“Thompson has not provided this Court with anything other
than factually unsupported allegations that he was incompe
tent at the time he committed the crime,” nor “has Thomp
son provided this Court with any significant probative evi
dence that [he] was suffering from a significant mental
disease that should have been presented to the jury during
the punishment phase as mitigation evidence.” Id., at 712–
713 (quoting District Court’s memorandum opinion; emphasis
and internal quotation marks omitted).
Thompson (now with a new public defender as counsel)
appealed the District Court’s grant of summary judgment in
the State’s favor. (A little over a year later, while the ap
peal was still pending, Thompson’s new counsel, apparently
having discovered that Dr. Sultan’s deposition and report
had not been included in the record before the District
Court, filed a motion in that court for relief from judgment
under Federal Rule of Civil Procedure 60(b), seeking to sup
plement the record with those documents. Counsel also
filed a motion in the appellate court, with the Sultan deposi
tion attached, requesting that the appeal be held in abeyance
while the District Court considered the Rule 60(b) motion.
Both motions were denied, and Thompson’s counsel did not
take an appeal from the District Court’s denial of the Rule
60(b) motion.) 373 F. 3d, at 714–715, and n. 10, 724–725.
The Court of Appeals reviewed the District Court’s grant
of summary judgment. In doing so, the appellate panel ex
amined the record before that court. It noted that Thomp
son’s federal habeas counsel had hired two experts (Crown
and Sultan), and had told the court (in an offer of proof) that
they would provide evidence that Thompson suffered from
mental illness at the time of the crime. But the appellate

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panel found that neither expert had done so. Indeed, said
the panel, Thompson had “never submitted to any court any
proof that he suffered from severe mental illness at the time
of the crime.” 315 F. 3d, at 590 (emphasis altered). Though
Thompson’s several attorneys had made the same allegation
for many years in several different courts (said the panel),
“at each opportunity, counsel fail[ed] to secure an answer
to the critical issue of whether Thompson was mentally
ill at the time of the crime.” Ibid. That fact, concluded
the panel (over a dissent), was fatal to Thompson’s basic
ineffective-assistance-of-counsel claim. Obviously “trial
counsel cannot be deemed ineffective for failing to discover
something that does not appear to exist.” Ibid.; see also
id., at 595 (Moore, J., concurring in result) (“Thompson has
presented no evidence that his [trial] counsel knew or should
have known either that Thompson was mentally ill or that
his mental condition was deteriorating at the time of his trial
or at the time of his crime”). The dissenting judge thought
Thompson had made out an ineffective-assistance claim by
showing that his trial counsel had relied on an inadequate
expert, that is, an expert without the necessary qualifica
tions to counter the State’s experts’ conclusions. Id., at
599–605 (opinion of Clay, J.).
The appeals court issued its opinion on January 9, 2003.
Thompson’s appointed federal appeals counsel filed a rehear
ing petition, which the court denied on March 10, 2003. See
App. to Pet. for Cert. 346 (Order in No. 00–5516 (CA6)).
Thompson’s counsel then sought Supreme Court review.
This Court denied review (and rehearing) about one year
later. 540 U. S. 1051 (2003) (denying certiorari); 540 U. S.
1158 (2004) (denying rehearing).
B
The Court of Appeals, following ordinary appellate-court
practice, withheld issuance of its mandate while the case was
under review here, namely, during calendar year 2003. Dur

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ing that time and in the months that followed, something
unusual happened. Judge Suhrheinrich realized that the
panel, in reaching its decision, seemed to have overlooked
documents provided by Dr. Sultan that likely were relevant.
In September 2003, the appellate court called for the entire
certified record. Upon reviewing that record, Judge Suhr
heinrich found Dr. Sultan’s deposition and accompanying re
port. 373 F. 3d, at 692–693; App. to Pet. for Cert. 347–348;
see also Appendix, infra.
The Sultan documents filled the evidentiary gap that un
derlay the District Court’s and the appellate panel’s determi
nations. These documents made clear that Dr. Sultan had
investigated Thompson’s background in depth and that in her
(well-supported) opinion, Thompson had suffered from seri
ous episodic bouts of schizophrenia at the time the crime was
committed. Clearly the documents contained evidence sup
porting Thompson’s claim regarding his mental state at the
time of the offense. Why had the District Court denied the
existence of any such evidence? Why had Judge Suhrhein
rich, and the other members of the panel (and the State,
which took Dr. Sultan’s deposition) done the same?
Judge Suhrheinrich then drafted an opinion that sought to
answer three questions:
Question One: Do these documents actually provide strong
evidence that Thompson was schizophrenic (and seriously so)
at the time of the crime?
Question Two: If so, given the many previous opportuni
ties that Thompson has had to raise the issue of his mental
health, to what extent would these documents be likely to
matter in respect to the legal question raised in Thompson’s
federal proceedings, i. e., would they likely lead a federal ha
beas court to hold that Thompson’s trial counsel was ineffec
tive for failing to undertake a background investigation akin
to that performed by Dr. Sultan?
Question Three: How did these documents previously es
cape our attention?

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Breyer, J., dissenting
1
The panel answered the first question—regarding the im
portance of the documents—unanimously. Dr. Sultan’s re
port and deposition were critically important. As Judge
Suhrheinrich’s opinion explains, these documents detail
Thompson’s horrendous childhood, his family history of men
tal illness, his self-destructive schizophrenic behavior (in
cluding auditory hallucinations) as a child, his mood swings
and bizarre behavior as a young adult, and a worsening of
that behavior after a serious beating to his head that he suf
fered while in the Navy. For example, Dr. Sultan’s exami
nation of Thompson and her interviews with Thompson’s
family members and others revealed that as a child Thomp
son would repeatedly bang his head against the wall to
“knock the Devil out” after his grandmother yelled at him,
“You have the Devil in you.” 373 F. 3d, at 716 (internal
quotation marks omitted). These documents explain how
Thompson, as a young adult, would talk to himself and
scream and cry for no apparent reason. They suggest that
he had bouts of paranoia.
The documents provide strong support for the conclusion
that Thompson suffered from episodes of schizophrenia at
the time of the offense. And they thereby offer significant
support for the conclusion that, had earlier testifying experts
had this information, they could have countered the State’s
experts’ conclusion that Thompson was malingering at the
time of trial. Thus, the Sultan materials seriously under
mined the foundation of the State’s position in respect to
Thompson’s mental condition.
The Sultan materials also revealed that trial counsel failed
to discover other mitigating evidence of importance. Inter
views with family members revealed repeated incidents of
violence in the family, including an episode in which, as a
young boy, Thompson witnessed his father brutally beat and
rape his mother. His grandmother, with whom Thompson

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and his siblings lived after their mother died, subjected them
to abuse and neglect. She would forget to feed the children,
leaving them to steal money from under her bed to buy food.
These and other circumstances are detailed in sections of the
Sultan report and deposition reproduced in the Appendix,
infra.
2
The panel also responded unanimously and affirmatively to
the second question: Would federal-court access to the Sultan
documents likely have made a significant difference in re
spect to the federal legal question at issue in Thompson’s
habeas petition, namely, the failure of Thompson’s trial coun
sel to investigate his background? Trial counsel had had
important indications that something was wrong. Indeed,
counsel himself had sought an evaluation of Thompson’s men
tal condition. He also was aware of Thompson’s violent be
havior in the military, and knew that Thompson had said he
had had auditory hallucinations all his life. He was aware,
too, of the changes in Thompson’s behavior. Should counsel
not then have investigated further?
The Sultan documents make clear that, had he done so,
he would have had a strong answer to the State’s experts.
Thus the documents were relevant to the outcome of the
federal habeas proceedings. The Federal District Court
based its grant of summary judgment on the premise that
there was no evidence supporting Thompson’s claim. The
documents showed that precisely such evidence was then
available.
3
The panel (while disagreeing about how to allocate blame)
agreed in part about the answer to the third question: how
these documents previously had escaped the panel’s atten
tion. The judges agreed that the Sultan documents were
not in the initial record on appeal. The panel’s original opin

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ion, while mentioning both Dr. Sultan and Dr. Crown, as
sumed that neither expert had addressed Thompson’s mental
condition at the time of the crime. 315 F. 3d, at 583, n. 13
(“Sultan’s affidavit does not discuss Thompson’s mental state
at the time of the offense” (emphasis added)); ibid. (explain
ing that Thompson filed a Rule 60(b) motion to supplement
the record with Dr. Sultan’s report, but not mentioning that
the report addressed Thompson’s mental condition at the
time of the offense); see also supra, at 817–818.
How had the panel overlooked the copies of the Sultan
deposition attached to (1) the rehearing petition and (2) the
(Rule 60(b)-related) motion to hold the appeal in abeyance?
As for the rehearing petition, the reason could well lie in the
petition’s (incorrect) suggestion that the panel had already
considered the appended document as part of the original
record. See Pet. for Rehearing and Suggestion for Rehear
ing En Banc in No. 00–5516 (CA6), p. 1 (“A majority of this
panel overlooked other proof in the record, including but not
limited to, the expert opinion of Dr. Faye E. Sultan”); see
also id., at 28–32. While the petition explains the impor
tance of the documents, it does not explain the circum
stances, namely, that the panel previously had not seen these
documents. Instead, it gives the impression that counsel
was simply reemphasizing a matter the panel had already
considered. To that extent, the petition reduced the likeli
hood that the panel would make the connection it later made
and fatally weakened its argument for re-hearing.
As for the motion to hold the appeal in abeyance, the pan
el’s failure to recognize the significance of the appended Sul
tan materials is also understandable. The motion gives the
impression that the appellate court would have been able
to handle any problem arising from the exclusion of these
materials in an appeal taken from the District Court’s Rule
60(b) decision. The appellate court, however, never had any
such opportunity because counsel did not appeal the District
Court’s denial of the Rule 60(b) motion.

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C
Once the panel understood the significance of the Sultan
report, it had to decide what to do. An appellate court ex
ists to correct legal errors made in the trial court. What
legal error had the District Court committed? The appeal
concerned its grant of summary judgment in the State’s
favor. The District Court made that decision on the basis
of the record before it, and that record apparently lacked the
relevant documents. How then could an appeals court say
that the District Court was wrong to grant the summary
judgment motion?
The panel answered this question by not holding that the
District Court had erred. Finding that the Sultan docu
ments had been “apparently negligently omitted” from the
record, it exercised its equitable powers to supplement the
record with the deposition. 373 F. 3d, at 691. It also found
that, since the State itself had helped to create that docu
ment (because the State had taken Dr. Sultan’s deposition),
the District Court’s reconsideration of the matter would not
unfairly prejudice the State. And it noted that this case is
a death case. Then, relying on its “inherent power to recon
sider” an opinion “prior to the issuance of the mandate,” the
court issued a new opinion, vacating the District Court’s
grant of summary judgment to the State and remanding the
case to the District Court for further proceedings on the
matter. Ibid.
II
The question before us is not whether we, as judges, would
have come to the same conclusions as did the panel of the
Court of Appeals. It is whether the three members of the
appellate panel abused their discretion in reconsidering the
matter and, after agreeing unanimously that they would
have reached a different result had they considered the over
looked evidence, vacating the District Court’s judgment and
remanding the case.

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The Court concludes that the panel’s reconsideration of the
matter and decision to vacate the District Court’s judgment
amounted to an “abuse of discretion.” Ante, at 796. It
therefore reverses the panel’s unanimous interlocutory judg
ment remanding a capital case to the District Court for an
evidentiary hearing. The Court lists five reasons why the
Court of Appeals “abused its discretion.” Ante, at 804.
None of these reasons, whether taken separately or consid
ered together, stands up to examination.
Reason One. During the 5-month period after this Court
denied rehearing of Thompson’s certiorari petition, during
which time the Court of Appeals was reconsidering the mat
ter, it gave “no indication that it might be revisiting its
earlier decision.” Had it “notified” the parties, the court
“could have spared the parties and the state judicial system
considerable time and resources.” Ante, at 804, 805.
If this consideration favors the Court’s conclusion, it does
so to a very modest degree. For one thing, the Federal
Rules themselves neither set an unchangeable deadline for
issuance of a mandate nor require notice when the court en
larges the time for issuance. Compare Fed. Rule App. Proc.
41(b) (2005) (“The court may shorten or extend the time”)
with Rule 41(a) (1968) (mandate “shall” issue “unless the
time is shortened or enlarged by order” (emphasis added)).
The Advisory Committee Notes to Rule 41 expressly con
template that the parties will themselves check the docket to
determine whether the mandate has issued. See Advisory
Committee’s 1998 Note on subd. (c) of Rule 41 (“[T]he parties
can easily calculate the anticipated date of issuance and ver
ify issuance of the mandate[;] the entry of the order on the
docket alerts the parties to that fact”). And Sixth Circuit
Rules require the Circuit Clerk to provide all parties with
copies of the mandate. See Internal Operating Procedure
41(a) (CA6 2005) (“Copies of the mandate are distributed to
all parties and the district court clerk’s office”). Thus, the
State’s attorneys knew, or certainly should have known, that

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the mandate had not issued, and, as experienced prac
titioners, they also knew, or certainly should have known,
that a proceeding is not technically over until the court has
issued its mandate. And if concerned by the delay (and
some delay in such matters is not uncommon), they could
have asked the Circuit Clerk why the mandate had not
issued. If necessary, they could have filed a motion seek
ing that information or seeking the mandate’s immediate
issuance.
For another thing, since notification is a clerical duty, the
panel may have thought the parties had been notified. One
of the judges on the panel could well have instructed the
Circuit Clerk not to issue the mandate, and then simply have
assumed that the Clerk would notify the parties of that fact
(though the Clerk, perhaps inadvertently, did not do so).
Why would the court want to hide what it was doing from
the parties? Once we apply a presumption of regularity to
the panel’s actions, we must assume that the failure to notify
the parties was likely due to a simple clerical error.
Further, the prejudice to the State that troubles the Court
was likely small or nonexistent. The need to reset an execu
tion date is not uncommon, and the state court’s execution
order explicitly foresaw that possibility. See 373 F. 3d, at
692 (Tennessee Supreme Court order set Thompson’s execu
tion date for August 19, 2004, “unless otherwise ordered by
this Court or other appropriate authority” (internal quota
tion marks omitted)). Moreover, the State has not even
argued—despite ample opportunity to do so—that the fur
ther proceedings ordered by the panel would actually have
required it to set a new date.
Finally, the State did not, by way of a petition for rehear
ing, make any of its “failure to notify” arguments to the
Court of Appeals. Although the law does not require the
State to seek rehearing, such a petition would have permit
ted the panel to explain why the State was not notified and
possibly to explore the matter of prejudice. There is no rea

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son to reward the State for not filing a petition by assuming
prejudice where none appears to exist.
Given the State’s likely knowledge that the mandate had
not issued, the existence of avenues for resolving any uncer
tainty, and the small likelihood of prejudice, the lack of notice
does not significantly advance the Court’s “abuse of discre
tion” finding. Indeed, if the Court believes that the Court
of Appeals could have issued a revised opinion correcting its
earlier judgment if only it had given notice to the parties,
the sanction it now imposes—outright reversal—is far out of
proportion to the crime.
Reason Two. The court’s “opportunity to consider” the
Sultan evidence “at the rehearing stage is yet another factor
supporting” the abuse-of-discretion “determination.” Ante,
at 806–807. I agree that it is unfortunate that, upon review
of the rehearing petition, the panel failed to make the con
nection that would have allowed it, at that time, to reach the
same conclusion it reached later. Still, the petition wrongly
implied that the Sultan documents were part of the original
appeal. Because it did not request rehearing on the ground
that the documents were not in the record, it did not offer a
genuine “opportunity to consider” the Sultan evidence.
Under these circumstances, I cannot agree that the court’s
opportunity to consider these documents at the rehearing
stage should militate in favor of finding an abuse of discre
tion. To the contrary, I believe we should encourage, rather
than discourage, an appellate panel, when it learns that it
has made a serious mistake, to take advantage of an opportu
nity to correct it, rather than to ignore the problem.
Reason Three. The “Sultan evidence . . . is not of such a
character as to warrant [a] departure from standard ap
pellate procedures” because “the evidence was unlikely to
have altered the District Court’s resolution of Thompson’s
ineffective-assistance-of-counsel claim.” Ante, at 808–809.
That is to say, given the expert testimony in the trial court,
the Sultan evidence is unlikely meaningfully to have

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strengthened Thompson’s claim before the Federal District
Court. Ante, at 808–810.
This conclusion is wrong. The Court argues the follow
ing: (1) Dr. Sultan’s conclusion rests in significant part upon
interviews with three witnesses, Thompson’s grandmother
and sister (with whom Dr. Sultan spoke directly) and his
girlfriend (whose interview with a defense investigator
Dr. Sultan reviewed); (2) since all three of these witnesses
testified at sentencing, Thompson’s counsel must have con
sulted them at the time; and (3) “[c]onsultation with these
witnesses, when combined with the opinions of [the State’s
expert] and [Thompson’s expert], provided an adequate
basis for Thompson’s attorneys to conclude that focusing
on Thompson’s mental health was not the best strategy.”
Ante, at 810. The Court then says that trial counsel’s
“strategy” may have been “a mistake,” ante, at 812, but ap
parently not enough of a mistake to amount to inadequate
assistance of counsel.
But how do the Court’s conclusions follow from the prem
ises? Dr. Sultan’s interview of the three witnesses appar
ently turned up new information, indeed, crucial information.
Why does that fact not tend to show that trial counsel’s own
“consultation” with those witnesses was inadequate? Or, if
trial counsel was aware of the information, why does that
not tend to show that trial counsel hired an expert who was
not qualified to assess Thompson’s mental condition, or that
counsel failed adequately to convey the critical information
to that expert? This Court in Wiggins v. Smith, 539 U. S.
510, 523–525 (2003), found trial counsel inadequate for failing
to conduct a reasonable investigation, given notice that such
an investigation would likely turn up important mitigating
evidence. See also Rompilla v. Beard, ante, p. 374. Why
is the same not true here, where Thompson’s trial counsel
was fully aware of the need for a background investigation,
and then either did not ask the right questions, or did not
hire the right expert, or did not convey the right information

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to that expert? At the least, is there not a good argument
to this effect—an argument that the Sultan documents
significantly strengthened? All three judges on the panel
thought so: They concluded that they would have reached
a different result on Thompson’s ineffective-assistance-of
counsel claim had they been aware of the Sultan documents.
The Court does not satisfactorily explain its basis for
second-guessing the panel on this point.
Reason Four. The Sultan evidence does “not come close
to satisfying the miscarriage of justice standard under Cal
deron.” Ante, at 812 (referring to Calderon v. Thomp
son, 523 U. S. 538 (1998)). As the Court apparently agrees,
see ante, at 803–804, Calderon does not apply here. And
the panel’s basic conclusion—that consideration of Thomp
son’s ineffective-assistance-of-counsel claim without the ben
efit of the Sultan evidence would constitute a grave miscar
riage of justice—survives any plausible standard of review.
I can find nothing in the Court’s opinion that explains why
the panel’s conclusion is wrong.
Reason Five. The Court of Appeals “did not accord the
appropriate level of respect” to the State’s “judgment.”
Ante, at 813. If by “judgment” the Court means to refer to
the state court’s original judgment of conviction, this reason
simply repeats Reason Four. The panel carefully examined
the entire record and determined that there is a significant
likelihood the Sultan evidence would demonstrate a violation
of the Federal Constitution.
If the Court means to refer to the state court’s judgment
not to set aside the conviction in state postconviction pro
ceedings, the Court is clearly wrong. The state court on
collateral review refused to authorize funds for a background
investigation, one for which Thompson’s expert then showed
a strong need, and which Thompson’s expert now shows
could well have demonstrated a significantly mitigating men
tal condition. How is it disrespectful of the State for a
federal habeas court to identify a constitutional error that

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occurred in state-court proceedings in a capital case, by tak
ing account of a key piece of evidence, mistakenly omitted
from the record?
If the Court means to refer to the State’s decision to pro
ceed with the execution, I cannot possibly agree. The Court
could not mean that any exercise by a federal court to cor
rect an inadvertent, and important, evidentiary error is “dis
respectful” of a State’s effort to proceed to execution. But
if it does not mean “any” exercise at all, then how can it say
the present exercise is disrespectful? The present exercise
embodies as thorough an examination of the record and as
significant a piece of evidence as one is likely to find. The
process—the detail and care with which the Court of Ap
peals combed the record—does not show “disrespect.” It
shows the contrary.
The upshot is that the Court’s five reasons are unconvinc
ing. The Court simply states those reasons as conclusions.
It fails to show how, or why, the unanimous panel erred in
reaching diametrically opposite conclusions, all supported
with detailed evidence set forth in Judge Suhrheinrich’s
opinion. It does not satisfactorily explain the evidentiary
basis for its own conclusions. And, in the process, it loses
sight of the question before us: again, not whether we, as
judges, would have reached the same conclusion that the
three judges on the panel reached, but rather whether they,
having unanimously agreed that their earlier decision was
wrong, abused their discretion in setting it right.
III
Ultimately this case presents three kinds of questions.
The first is a narrow legal question. Has the Court of Ap
peals abused its discretion? For the reasons I have set
forth, the answer to that question, legally speaking, must
be “no.”
The second is an epistemological question. How, in re
spect to matters involving the legal impact of the Sultan

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report and deposition, can the Court replace the panel’s
judgment with its own? Judge Suhrheinrich’s opinion dem
onstrates why any assessment of that legal impact must
grow out of thorough knowledge of the record. He spent
hundreds of hours with its numerous documents in order to
make that assessment. Those of his conclusions that were
shared by the other members of the panel are logical, rest
upon record-based facts, and are nowhere refuted (in respect
to those facts) by anything before us or by anything in the
Court’s opinion. How can the Court know that the panel
is wrong?
The third question is about basic jurisprudence. A legal
system is based on rules; it also seeks justice in the individ
ual case. Sometimes these ends conflict. To take account
of such conflict, the system often grants judges a degree of
discretion, thereby providing oil for the rule-based gears.
When we tell the Court of Appeals that it cannot exercise
its discretion to correct the serious error it discovered here,
we tell courts they are not to act to cure serious injustice in
similar cases. The consequence is to divorce the rule-based
result from the just result. The American judicial system
has long sought to avoid that divorce. Today’s decision
takes an unfortunate step in the wrong direction.
APPENDIX TO OPINION OF BREYER, J.
Excerpts from the Gregory Thompson Psychological Re
port prepared by Dr. Faye E. Sultan at the Riverbend Maxi
mum Security Institution (RMSI) (July 22, 1999), App. 11–20.
“REFERRAL QUESTIONS:
“Mr. Gregory Thompson was referred for psychological eval
uation in July, 1998 by attorney Mr. Stephen M. Kissinger of
the Federal Defender Services of Eastern Tennessee Incor
porated. Mr. Thompson was convicted of murder in 1985.
This evaluation was requested to address the following
questions:

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“1. Mr. Thompson’s current psychological status[.]
“2. Mr. Thompson’s likely psychological status and men
tal state before and surrounding the time of the 1985
offense.
“3. Social, environmental, psychological, and economic
factors in the life of Mr. Thompson which might have
be[en] considered to be mitigating in nature at the time
of his trial.
“PROCEDURE:
“Psychological evaluation of Mr. Thompson was initiated on
August 20, 1998. This first evaluation session extended
over a period of approximately four hours and consisted of
clinical interview and the administration of the Minnesota
Multiphasic Personality Inventory–2 (MMPI–2). Some re
view of prior psychological evaluation records was conducted
to establish what formal psychological and neuropsychologi
cal testing had been administered to Mr. Thompson. Levels
of current intellectual and neuropsychological functioning
had been recently assessed by neuropsychologist, Barry
Crown, Ph.D., so no attempt was made to replicate this type
of assessment.
“Following the 8–20–98 initial evaluation session, a very
extensive review of legal, military, medical, prison and psy
chiatric/psychological records was initiated. A list of the
documents examined is attached to this report.
. . . . .
“ . . . Two further interviews were conducted with
Mr. Thompson for [the] limited purpose [of determining
Thompson’s competence to participate in habeas proceed
ings], on 2–2–99 and 4–7–99, totaling approximately six hours
of additional observation. Voluminous Tennessee Depart
ment of Corrections mental health, medical, and administra
tive records were reviewed at this time as well.
. . . . .

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“[T]he extensive record review conducted, the ten hours of
clinical observations made of Mr. Thompson during the pre
ceding eleven months, the interviews conducted with col
lateral informants, and the recent and past psychological
testing which had been administered provide enough data
to make it possible to render professional opinions about
Mr. Thompson’s mental state at and around the time of the
1985 offense.
“CLINICAL OBSERVATIONS:
“Mr. Gregory Thompson was cooperative with the assess
ment procedure. He answered all questions posed to him
and appeared to be alert, watchful and interested in the in
terview process. His speech was sometimes tangential and
rambling. Although motor behavior appeared controlled
there was a manic quality to his verbalizations. Mr. Thomp
son was oriented as to person, place and time, but he repeat
edly expressed his firm belief that he had written each and
every song which played on the radio.
“Mr. Thompson displayed symptoms of psychosis during the
two subsequent meetings. The details of these sessions will
not be reviewed here.
“FORMAL PSYCHOLOGICAL TESTING:
“The Minnesota Multiphasic Personality lnventory–2
(MMPI–2) was administered to Mr. Thompson on 8–20–98.
It had been determined in other examination settings that
Mr. Thompson’s level of reading competence exceeded the
necessary level of 8th grade ability required for proper ad
ministration of this test.
“The MMPI–2 profile produced by Mr. Thompson is consid
ered valid and appropriate for interpretation. Individuals
producing similar profiles are described as experiencing sig
nificant psychological difficulties and chronic psychological
maladjustment. Such individuals are considered to be
highly suspicious of others, often displaying paranoid fea

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tures. There is indication in this profile of the presence of a
thought disorder and the inability to manage emotions. The
world is perceived as a threatening and dangerous place and
fears are viewed as externally generated and reality-based
rather than as a product of an internally generated state.
The behavior of such individuals is often described as hostile,
aggressive, and rebellious against authority. Poor impulse
control, lack of trust in others, and low frustration tolerance
may result in such individuals displaying rage in interper
sonal relationships.
“Individuals producing this testing profile are also described
as experiencing depressed mood. There is the strong possi
bility that such individuals have contemplated suicide and
report preoccupation with feeling guilty and unworthy.
Testing items were endorsed which suggest memory and
concentration problems, and an inability to make decisions.
“RELEVANT PSYCHOLOGICAL/PSYCHIATRIC DATA
CONTAINED IN RECORDS:
“The[re] is substantial documentation throughout the Ten
nessee Department of Corrections records that Mr. Greg
Thompson has suffered from significant mental illness since
at least the time of . . . his incarceration in 1985. He has
been treated almost continuously with some combination of
major tranquilizer and/or anti-depressant and/or anti-anxiety
medications. He has received a variety of diagnostic labels
including Psychosis, Psychosis Not Otherwise Specified,
Paranoid Schizophrenia, Mania, Mixed Substance Abuse,
Schizophrenia, BiPolar Affective Disorder, Schizoaffective
Disorder, Malingering, and Adult Antisocial Behavior. This
is clearly indicative of the Tennessee DOC mental health
staff ’s view that Mr. Thompson has experienced major men
tal illness throughout at least most of his period of incarcera
tion. Further, there is extensive documentation contained
in these records of many episodes of bizarre aggressive and/
or self-destructive behavior.

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“INTERVIEWS WITH COLLATERAL WITNESSES:
“Five individuals were interviewed (either by telephone or
face-to-face) who provided significant supplemental informa
tion about the life circumstances and past/present psycholog
ical functioning of Mr. Gregory Thompson.
“Ms. Maybelle Lamar
“Ms. Lamar is Mr. Thompson’s maternal grandmother. She
was interviewed by telephone on July 21, 1999. Ms. Lamar
assumed total responsibility for the care and rearing of
Mr. Thompson and his two older siblings after his mother
was killed when Mr. Thompson was approximately five years
old. Mr. Thompson remained in her home until he entered
the military as a young adult.
“Ms. Lamar recalls the period following her daughter’s fatal
automobile accident as one of tremendous strain and disrup
tion for her. She was unable to describe the reaction of the
three young children to their mother’s death because she
‘took to my bed’ for approximately five or six weeks follow
ing the accident. Ms. Lamar was unable to attend to these
children in any way at that time. She did not recall how
they obtained food or clothing, or whether they were in any
distress. Ms. Lamar reported that she was drinking alcohol
quite heavily during this period and that she left her bed to
resume household activities only because the children con
tracted a serious medical illness.
“Ms. Lamar described Mr. Thompson as displaying signifi
cantly ‘different’ behavior when he returned to visit her fol
lowing his discharge from the U. S. Navy. ‘Greg didn’t act
the same’. Unlike the ‘eager to please’, passive, sometimes
funny, gentle boy who she had reared, Mr. Thompson was
‘angry’, ‘sometimes sad’. ‘I don’t think he wanted me to
know what was going on with him. He mostly just stayed
away from me.’ Ms. Lamar reported that she noticed
Mr. Thompson sometimes ‘staring off into space’ or ‘talking
to himself ’. She would ask him about these behaviors.

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‘He’d deny it. He acted like he didn’t know what I was talk
ing about.’ Ms. Lamar recalls being quite concerned about
her grandson’s mental state during this time. She did not
recall ever being asked these questions at any time before
or during Mr. Thompson’s trial.
“Ms. Nora Jean Hall Wharton
“Nora Jean Wharton is Mr. Thompson’s older sister. A
lengthy telephone interview was conducted with her on July
21, 1999. She grew up in the same home as Mr. Thompson
and had continuous contact with him throughout his child
hood. Mr. Thompson lived briefly in the home of his sister
following his discharge from the military.
“Ms. Wharton described Mr. Greg Thompson as a highly sen
sitive, passive, timid, emotionally vulnerable child. She de
scribed a childhood of great hardship. According to her re
port, their grandmother, Ms. Maybelle Lamar[,] was verbally
abusive, neglectful of the children’s basic daily needs, highly
critical, and unable to care properly for the children.
Ms. Wharton described many instances of such abuse and
neglect. She described the period following their mother’s
death as particularly chaotic and neglectful, recalling that
often there was no food in the home and that the children
would take money from under their grandmother’s mattress
to go and buy food. In the period following their mother’s
death, Ms. Wharton reported that her grandmother was con
tinuously drunk and unable to care for her grandchildren.
According to Ms. Wharton, Greg Thompson frequently wit
nessed his sister Nora being beaten by their grandmother.
“Ms. Wharton further recalled that she and her younger
brother had witnessed the brutal beating and rape of their
mother by their biological father. She recalls Greg standing
in the scene screaming and sobbing uncontrollably.
“Ms. Wharton reported that Greg would frequently cry at
school during the early school years, and, as a result, was
often the victim of intense mockery from his classmates.

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Because Ms. Wharton was in the same classroom as her
brother she observed these behaviors and often intervened
on her brother’s behalf. She described Mr. Thompson’s re
sponse to this abuse as quite passive.
“Of particular significance is Ms. Wharton’s recollections
about Mr. Thompson repeatedly banging his head against
the wall of their home on many occasions during their early
childhood. This behavior frequently followed their grand
mother yelling at Greg ‘You have the Devil in you.’ Mr.
Thompson would tell his sister that he was attempting to
‘knock the Devil out’ of his head in this way. Ms. Wharton
recalls believing that this behavior was quite odd.
“Following his discharge from military service, Ms. Wharton
described Mr. Thompson’s behavior as significantly different
than his prior conduct and attitude. She reported several
episodes of bizarre behavior which included a sudden intense
emotional reaction without obvious external provocation.
Mr. Thompson would become extremely angry, would cry
and scream for a len[g]thy period of time, would appear
as if he might or actually become quite physically violent
or aggressive, and then would suddenly retreat.
Ms. Thompson reported this behavior and her concerns
about it to her grandmother. Ms. Lamar suggested that
Ms. Wharton take her brother to the psychiatric unit of the
local hospital for treatment. Ms. Wharton did not attempt
to get any treatment for Mr. Thompson and reports feeling
quite guilty about this.
“Nora Jean Wharton described her own struggles with men
tal illness throughout the past fifteen years. She has re
ceived counseling to assist her in coping with the effects
of her abusive childhood and she has been treated with a
combination of a major tranquilizer (Stellazine) and anti
depressant medications. She reported that her younger
half-sister Kim has also suffered from significant mental
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“CUSTODY OFFICERS AT RMSI
“Following the second interview conducted with Mr. Thomp
son on 2–2–99, I informally interviewed two custody officers
who escorted Mr. Thompson back to his cell. These officers
have not as yet been identified by name. Both reported that
they were aware that Mr. Thompson was quite mentally ill
and that they were concerned about him. They further re
ported that they believed it would be in his best interest to
be housed in a prison facility better equipped to deal with
individuals experiencing severe mental illness.
“MICHAEL CHAVIS
“Federal Defender Services of Eastern Tennessee investiga
tor, Mr. Michael Chavis, was interviewed about his July 29
through August 2, 1998 interview with Ms. Arlene Cajulao
in Honolulu, Hawaii. Ms. Cajulao and Mr. Thompson had an
intimate relationship and lived together for approximately
four years, from 1980 to 1984.
“Mr. Chavis reported that Ms. Cajulao described Mr. Thomp
son as displaying increasingly bizarre behavior during the
latter part of their relationship. Similar to descriptions pro
v[ided] by Ms. Nora Wharton, Ms. Cajulao reported several
episodes of ‘paranoid’ and aggressive behavior which had
no apparent external antecedent. She reported that Mr.
Thompson sometimes thought that people were ‘after’ him.
He would close all the curtains in the house because he
did not want the person who was ‘looking’ for him to see
him through the curtains. She remembers being quite con
cerned about Mr. Thompson’s mental state.
“SUMMARY AND CONCLUSIONS:
“Mr. Gregory Thompson has experienced symptoms of major
mental illness throughout his adult life. Indeed, there is in
formation available which suggests that Mr. Thompson was
displaying significant signs of mental illness from the time
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early as six years old. There is extensive documentation
contained within the records reviewed for this evaluation
that Mr. Thompson has experienced a thought disorder and/
or an affective disorder of some type for many years.
“It is my opinion that Mr. Gregory Thompson is most appro
priately diagnosed, according to the Diagnostic and Statis
tical Manual of Mental Disorders, Fourth Edition, as having
Schizoaffective Disorder, Bipolar Type. As is typical of this
illness, symptoms became apparent in early adulthood. Mr.
Thompson was suffering serious mental illness at the time
of the 1985 offense for which he has been convicted and sen
tenced. This mental illness would have substantially im
paired Mr. Thompson’s ability to conform his conduct to the
requirements of the law.
“Further, Mr. Thompson was the victim of severe childhood
emotional abuse and physical neglect. His family back
ground is best described as highly neglectful and economi
cally deprived. Mr. Thompson repeatedly witnessed epi
sodes of violence during his childhood in which one family
member assaulted or brutalized another. There are signifi
cant aspects of Mr. Thompson’s social history that have been
recognized as mitigating in other capital cases.
“It is important to note that all of the information related to
Mr. Thompson’s early mental illness and social history was
available at the time of his 1985 trial.
“[signed]
“Faye E. Sultan, Ph.D.”
* * *
Excerpts from the Deposition of Dr. Faye E. Sultan (July
22, 1999), id., at 71–73, 76–80.
“Q. What indicates to you or what indicia are there for
you that suggest Mr. Thompson was displaying significant
signs of mental illness from the time he was a small child?
How do you arrive at that conclusion?

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“A. . . . . .
“By the time of the first grade, Mr. Thompson, when he
was being yelled at by his grandmother, she was reportedly
verbally abusive in the following fashion: She would yell at
him you have the devil in you, boy. [His sister, Ms. Whar
ton] would then observe Mr. Thompson standing or sitting
beside a wall repeatedly banging his head into the wall.
She, in her role as protector of him, would ask him what was
going on, and he would tell her he was trying to knock the
devil out of his head. She recalls at the time, although she
was quite young herself, being worried about his behavior
and thinking of it as very odd.
. . . . .
“Q. Sort of a self-punishment or a self-exorcism type
thing?
“A. A self-injurious behavior is what we would call it I
think. Mr. Thompson, when he was Greg, in the first and
second and third grade had rather frequent hysterical crying
episodes in classrooms that Ms. Wharton recalls also as very
unusual in the context of his schoolroom situation. She de
scribes him as being the subject of torment on the part of
the students because he behaved in an odd fashion. Some
times he would simply begin to cry and wail and scream
and apparently made a sound like a fire engine when he was
sobbing and developed the nickname Fire Engine. That’s
reported in the trial transcript. She told me much more de
tail about actually the extent of those kind[s] of emotional
outbursts.
“At home it was rather common for Mr. Thompson to begin
to cry and scream during times when Ms. Wharton herself
was being beaten by their grandmother. Ms. Wharton was
the victim of physical abuse on the part of the grandmother.
Mr. Thompson observed much of this since they were to
gether virtually all of the time, and Nora Wharton was not
really permitted much interaction outside of their home.
. . . . .

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“Q. Your diagnosis for Mr. Thompson is schizoaffective
disorder, comma, bipolar type. What leads you to that diag
nosis from what you’ve reviewed and your testing results?
“A. What leads me to the diagnosis is that there is a long
history, perhaps at this point almost a 20-year history, of
simultaneous thought disorder on the part of Mr. Thompson
documented throughout all the records, and affective disor
der, emotional disorder, being unable to regulate his emo
tions, sometimes falling into the pits of despair and becoming
suicidal, sometimes becoming highly agitated and manic and
having too much energy, too much exuberance, and grandiose
thinking. The thought disorder is manifested in persecu
tory ideas, delusions of grandeur—lots of different kinds of
delusions actually—auditory hallucinations that he some
times admits to, sometimes suspected by the doctors who are
doing the examination.
“The psychological testing early on in Mr. Thompson’s in
carceration confirm[s] the presence of a psychotic process.
There was an MMPI administered to him by a prison psy
chologist in 1990 that is described as valid and indicative of
psychotic process, and throughout the prison record he re
ceives a variety of diagnoses that take into account both
thought disorder and affective illness.
“The very best diagnosis to describe all of the complex of
symptoms that I just talked to you about is schizoaffective
disorder, bipolar type.
“Q. You note in your report Mr. Thompson was observed
having a significant change in behavior after he was dis
charged from the Navy. What significance do you attach to
that fact?
“A. Well . . . prior to his entry into the military
Mr. Thompson is described almost uniformly . . . as passive,
as compliant, as eager to please, as gentle, as timid, as eager
to run from attacks.
“At some point . . . he began to notice that people were
trying to hurt him all the time, that officers and other people

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of his rank and slightly above his rank attempted to provoke
him, that they sometimes physically assaulted him, that he
thought he was being followed a lot, and that he sometimes
struck out in what he thought was defense and then later
found out from other people who he knew and trusted that
there wasn’t anything to defend against or that there might
not have been anything to defend against.
“Q. This is what he related to you during your interview
last August?
“A. Right. The people who saw him after the military
each were struck by how very different he seemed. That
was the word that kept being used, ‘different.’ Sometimes
the people I was speaking to were not able to describe what
different meant, but, for example, the grandmother said that
he was different as in not right, that he wasn’t himself.
Ms. Wharton tells me that the grandmother was very well
aware that he was in deep psychological distress, and, in fact,
the grandmother suggested that he be taken to the psychiat
ric unit at Grady Hospital in Atlanta, I believe, for treat
ment. The grandmother observed him staring off into space
for long periods of time. She observed him mumbling to
himself. When she asked him what he was doing, he told
her he had no idea what she was talking about. She said
that was very different from the boy who left her to go
into service.
“The sister has even a better glimpse of him than that,
because he actually went to live with her for a while, and
she said he was bizarre. She described him as paranoid.
She said that he would explode for no reason at all, that she
was afraid of him for the very first time in her life, that they
had always been terribly close, the sort of close where if
there was only one piece of bread to eat they would share it,
that they always looked out for one another, and that sud
denly he was behaving in ways that she simply could not
identify. She described three very serious episodes of ag
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to approach her grandmother about what to do for treat
ment for him.
. . . . .
“Q. You state that the schizoaffective disorder, bipolar
type, would substantially impair Mr. Thompson’s ability to
conform his conduct to the requirements of the law. How
so?
“A. There are points in time when Mr. Thompson is out of
contact with reality. He is responding to situations that
simply don’t exist or that he perceives in extremely exagger
ated or different form. A person is not able to conform one’s
conduct to the law if you are frankly delusional or hallucinat
ing in some way. Mr. Thompson over the years has had both
of those symptoms.
“Q. So it’s this delusional aspect of this disorder that is
the main factor that would keep him from having the ability
to conform his conduct to the requirements of law, if I under
stand you correctly?
“A. Is it the main factor? Let me say that I think it’s at
least as potent a factor if not more as the other aspect of his
mental illness, which is that he has emotional disregulation.
“Q. Meaning?
“A. Meaning Mr. Thompson often is not in control of his
emotions. He has episodes of rage, of aggression, that he
doesn’t understand or relate to very well. He’s told about
them later. Sometimes he remembers them, sometimes he
doesn’t. He is often embarrassed about his behavior after
wards, but there are points at which I believe he’s not in
control of what he’s doing.
“Q. When you say ‘he’s not in control of what he’s doing,’
are you saying that it’s impulsive behavior?
“A. If I am emotionally disregulated, if I’m over-aroused
and overreactive and I operate out of a faulty belief system,
so that not only do I have the impulse to do things that I
ordinarily wouldn’t, but I also think things are going on that
aren’t, I have a combination in which yes, I suppose you

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Appendix to opinion of Breyer, J.
could call it impulse, but you also have to take the notion
into account that it might be an impulse to do something that
doesn’t make any sense.
“Q. Does this disorder prevent Mr. Thompson from plan
ning his activities?
“A. Sometimes, yes, it does.
“Q. And so the inability to plan, would that be a factor
that would prevent him from conforming his conduct to the
requirements of the law?
“A. If that were in operation at some time. In the history
of the Department of Corrections’ mental health records,
when he’s properly medicated I don’t think that’s true
about him.
“Q. Is it your professional opinion, then, that when he is
medicated he has the ability to plan, but when he is not medi
cated he does not always have the ability to plan?
“A. Those two things are true. It’s also true that if he’s
inadequately medicated or improperly medicated he doesn’t
have the ability to plan anything. I don’t know whether he
has impulses. I think he’s all impulse, so to have impulses
implies that there’s a part of you that’s not impulsive. For
example, when Mr. Chavis and I saw him during my second
interview with him, he could not have planned anything at
all, not beyond the nanosecond in which he was experiencing
the world. But he was receiving psychotropic medications
at the time, so that’s why I have to put that qualifier in
there.”

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OCTOBER TERM, 2004
Syllabus
McCREARY COUNTY, KENTUCKY, et al. v. AMERI-
CAN CIVIL LIBERTIES UNION OF KENTUCKY et al.
certiorari to the united states court of appeals for
the sixth circuit
No. 03–1693. Argued March 2, 2005—Decided June 27, 2005
After petitioners, two Kentucky Counties, each posted large, readily visi
ble copies of the Ten Commandments in their courthouses, respondents,
the American Civil Liberties Union (ACLU) et al., sued under 42
U. S. C. § 1983 to enjoin the displays on the ground that they violated the
First Amendment’s Establishment Clause. The Counties then adopted
nearly identical resolutions calling for a more extensive exhibit meant
to show that the Commandments are Kentucky’s “precedent legal code.”
The resolutions noted several grounds for taking that position, including
the state legislature’s acknowledgment of Christ as the “Prince of Eth
ics.” The displays around the Commandments were modified to include
eight smaller, historical documents containing religious references as
their sole common element, e. g., the Declaration of Independence’s “en
dowed by their Creator” passage. Entering a preliminary injunction,
the District Court followed the Lemon v. Kurtzman, 403 U. S. 602, test
to find, inter alia, that the original display lacked any secular purpose
because the Commandments are a distinctly religious document, and
that the second version lacked such a purpose because the Counties
narrowly tailored their selection of foundational documents to those spe
cifically referring to Christianity. After changing counsel, the Counties
revised the exhibits again. No new resolution authorized the new ex
hibits, nor did the Counties repeal the resolutions that preceded the
second one. The new posting, entitled “The Foundations of American
Law and Government Display,” consists of nine framed documents of
equal size. One sets out the Commandments explicitly identified as the
“King James Version,” quotes them at greater length, and explains that
they have profoundly influenced the formation of Western legal thought
and this Nation. With the Commandments are framed copies of, e. g.,
the Star Spangled Banner’s lyrics and the Declaration of Independence,
accompanied by statements about their historical and legal significance.
On the ACLU’s motion, the District Court included this third display in
the injunction despite the Counties’ professed intent to show that the
Commandments were part of the foundation of American Law and Gov
ernment and to educate county citizens as to the documents. The court
took proclaiming the Commandments’ foundational value as a religious,

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rather than secular, purpose under Stone v. Graham, 449 U. S. 39, and
found that the Counties’ asserted educational goals crumbled upon an
examination of this litigation’s history. Affirming, the Sixth Circuit
stressed that, under Stone, displaying the Commandments bespeaks a
religious object unless they are integrated with a secular message. The
court saw no integration here because of a lack of a demonstrated ana
lytical or historical connection between the Commandments and the
other documents.
Held:
1. A determination of the Counties’ purpose is a sound basis for ruling
on the Establishment Clause complaints. The Counties’ objective may
be dispositive of the constitutional enquiry. Pp. 859–866.
(a) Lemon’s “secular legislative purpose” enquiry, 403 U. S., at 612,
has been a common, albeit seldom dispositive, element of this Court’s
cases, Wallace v. Jaffree, 472 U. S. 38, 75. When the government acts
with the ostensible and predominant purpose of advancing religion, it
violates the central Establishment Clause value of official religious neu
trality, there being no neutrality when the government’s ostensible ob
ject is to take sides. Corporation of Presiding Bishop of Church of
Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 335. A pur
pose to favor one faith over another, or adherence to religion generally,
clashes with the “understanding . . . that liberty and social stability
demand a . . . tolerance that respects the religious views of all citizens.”
Zelman v. Simmons-Harris, 536 U. S. 639, 718. Pp. 859–861.
(b) The Court declines the Counties’ request to abandon Lemon’s
purpose test. Their assertions that true “purpose” is unknowable, and
its search merely an excuse for courts to act selectively and unpredict
ably in picking out evidence of subjective intent, are as seismic as they
are unconvincing. Examination of purpose is a staple of statutory in
terpretation for every American appellate court, e. g., General Dynam
ics Land Systems, Inc. v. Cline, 540 U. S. 581, 600, and governmental
purpose is a key element of a good deal of constitutional doctrine, e. g.,
Washington v. Davis, 426 U. S. 229. Scrutinizing purpose makes prac
tical sense in Establishment Clause analysis, where an understanding of
official objective emerges from readily discoverable fact set forth in a
statute’s text, legislative history, and implementation or comparable of
ficial act. Wallace v. Jaffree, supra, at 73–74. Nor is there any indica
tion that the purpose enquiry is rigged in practice to finding a religious
purpose dominant every time a case is filed. Pp. 861–863.
(c) The Court also avoids the Counties’ alternative tack of trivializ
ing the purpose enquiry. They would read the Court’s cases as if the
enquiry were so naive that any transparent claim to secularity would

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846 McCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Syllabus
satisfy it, and they would cut context out of the enquiry, to the point
of ignoring history, no matter what bearing it actually had on the
significance of current circumstances. There is no precedent for these
arguments, or reason supporting them. Pp. 863–866.
(1) A legislature’s stated reasons will generally warrant the def
erence owed in the first instance to such official claims, but Lemon re
quires the secular purpose to be genuine, not a sham, and not merely
secondary to a religious objective, see, e. g., Santa Fe Independent
School Dist. v. Doe, 530 U. S. 290, 308. In those unusual cases where
the claim was an apparent sham, or the secular purpose secondary, the
unsurprising results have been findings of no adequate secular object,
as against a predominantly religious one. See, e. g., Stone, supra,
at 41. Pp. 864–865.
(2) The Counties’ argument that purpose in a case like this
should be inferred only from the latest in a series of governmental ac
tions, however close they may all be in time and subject, bucks com
mon sense. Reasonable observers have reasonable memories, and the
Court’s precedents sensibly forbid an observer “to turn a blind eye to
the context in which [the] policy arose.” Santa Fe, supra, at 315.
P. 866.
2. Evaluation of the Counties’ claim of secular purpose for the ulti
mate displays may take their evolution into account. The development
of the presentation should be considered in determining its purpose.
Pp. 867–874.
(a) Stone is the Court’s initial benchmark as its only case dealing
with the constitutionality of displaying the Commandments. It recog
nized that the Commandments are an “instrument of religion” and that,
at least on the facts before the Court, their text’s display could presump
tively be understood as meant to advance religion: although state law
specifically required their posting in classrooms, their isolated exhibition
did not allow even for an argument that secular education explained
their being there. 449 U. S., at 41, n. 3. But Stone did not purport to
decide the constitutionality of every possible way the government might
set out the Commandments, and under the Establishment Clause detail
is key, County of Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573, 595. Hence, the Court looks to the
record showing the progression leading up to the Commandments’ third
display, beginning with the first. Pp. 867–868.
(b) There are two obvious similarities between the display Stone
rejected and the first one here: both set out the Commandments’ text
as distinct from any traditionally symbolic representation like blank tab
lets, and each stood alone, not as part of an arguably secular display.
Stone stressed the significance of integrating the Commandments into

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a secular scheme to forestall the broadcast of an otherwise clearly reli
gious message, 449 U. S., at 42, and for good reason, the Commandments
being a central point of reference in the religious and moral history of
Jews and Christians. They proclaim the existence of a monotheistic
god (no other gods), regulate details of religious obligation (no graven
images, sabbath breaking, or vain oath swearing), and unmistakably rest
even the universally accepted prohibitions (as against murder, theft,
etc.) on the sanction of the divinity proclaimed at the text’s beginning.
Displaying that text is thus different from symbolic representation, like
tablets with 10 roman numerals, which could be seen as alluding to a
general notion of law, not a sectarian conception of faith. Where the
text is set out, the insistence of the religious message is hard to avoid
in the absence of a context plausibly suggesting a message going beyond
an excuse to promote the religious point of view. The display in Stone
had no such context, and the Counties’ solo exhibit here did nothing
more to counter the sectarian implication than the Stone postings. The
reasonable observer could only think that the Counties meant to empha
size and celebrate the Commandments’ religious message. Pp. 868–869.
(c) The Counties’ second display, unlike the first, did not hang the
Commandments in isolation, but included the statement of the govern
ment’s purpose expressly set out in the county resolutions, and under
scored it by juxtaposing the Commandments to other documents whose
references to God were highlighted as their sole common element. The
display’s unstinting focus was on religious passages, showing that the
Counties posted the Commandments precisely because of their sectarian
content. That demonstration of the government’s objective was en
hanced by serial religious references and the accompanying resolutions’
claim about the embodiment of ethics in Christ. Together, the display
and resolution presented an indisputable, and undisputed, showing of an
impermissible purpose. Pp. 869–870.
(d) The lower courts’ conclusion that no legitimizing secular pur
pose prompted the Counties’ third display, the “Foundations of Ameri
can Law and Government” exhibit, is amply justified. That display
placed the Commandments in the company of other documents the
Counties deemed especially significant in the historical foundation of
American government. In trying to persuade the District Court to lift
the preliminary injunction, the Counties cited several new purposes for
the third version, including a desire to educate county citizens as to the
significance of the documents displayed. The Counties’ claims, how
ever, persuaded neither that court, which was intimately familiar with
this litigation’s details, nor the Sixth Circuit. Where both lower courts
were unable to discern an arguably valid secular purpose, this Court
normally should hesitate to find one. Edwards v. Aguillard, 482 U. S.

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848 McCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Syllabus
578, 594. The Counties’ new statements of purpose were presented
only as a litigating position, there being no further authorizing resolu
tions by the Counties’ governing boards. And although repeal of the
earlier county authorizations would not have erased them from the rec
ord of evidence bearing on current purpose, the extraordinary resolu
tions for the second displays passed just months earlier were not re
pealed or otherwise repudiated. Indeed, the sectarian spirit of the
resolutions found enhanced expression in the third display, which quoted
more of the Commandments’ purely religious language than the first
two displays had done. No reasonable observer, therefore, could accept
the claim that the Counties had cast off the objective so unmistakable
in the earlier displays. Nor did the selection of posted material suggest
a clear theme that might prevail over evidence of the continuing reli
gious object. For example, it is at least odd in a collection of documents
said to be “foundational” to include a patriotic anthem, but to omit
the Fourteenth Amendment, the most significant structural provision
adopted since the original framing. An observer would probably sus
pect the Counties of reaching for any way to keep a religious document
on the walls of courthouses constitutionally required to embody reli
gious neutrality. Pp. 870–873.
(e) In holding that the preliminary injunction was adequately sup
ported by evidence that the Counties’ purpose had not changed at the
third stage, the Court does not decide that the Counties’ past actions
forever taint any effort on their part to deal with the subject matter.
The Court holds only that purpose is to be taken seriously under the
Establishment Clause and is to be understood in light of context. Dis
trict courts are fully capable of adjusting preliminary relief to take ac
count of genuine changes in constitutionally significant conditions. Nor
does the Court hold that a sacred text can never be integrated constitu
tionally into a governmental display on law or history. Its own court
room frieze depicts Moses holding tablets exhibiting a portion of the
secularly phrased Commandments; in the company of 17 other lawgiv
ers, most of them secular figures, there is no risk that Moses would
strike an observer as evidence that the National Government was vio
lating religious neutrality. Pp. 873–874.
354 F. 3d 438, affirmed.
Souter, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed a
concurring opinion, post, p. 881. Scalia, J., filed a dissenting opinion, in
which Rehnquist, C. J., and Thomas, J., joined, and in which Kennedy,
J., joined as to Parts II and III, post, p. 885.

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Counsel
Mathew D. Staver argued the cause for petitioners. With
him on the briefs were Erik W. Stanley, Rena M. Lindevald
sen, Bruce W. Green, and Mary E. McAlister.
Acting Solicitor General Clement argued the cause for
the United States as amicus curiae urging reversal. With
him on the brief were Assistant Attorney General Keisler,
Deputy Assistant Attorney General Katsas, Patricia A.
Millett, Robert M. Loeb, and Lowell V. Sturgill, Jr.
David A. Friedman argued the cause for respondents.
With him on the brief were Lili R. Lutgens and Steven R.
Shapiro.*
*Briefs of amici curiae urging reversal were filed for the State of Ala
bama et al. by Troy King, Attorney General of Alabama, Kevin C. New
som, Solicitor General, and Charles B. Campbell, Assistant Attorney Gen
eral, and by the Attorneys General for their respective States as follows:
Charles J. Crist, Jr., of Florida, Lawrence G. Wasden of Idaho, Steve Car
ter of Indiana, Phill Kline of Kansas, Gregory D. Stumbo of Kentucky,
Charles C. Foti, Jr., of Louisiana, Jim Hood of Mississippi, Jim Petro of
Ohio, Gerald J. Pappert of Pennsylvania, Henry McMaster of South Caro
lina, Greg Abbott of Texas, Mark L. Shurtleff of Utah, Jerry W. Kilgore
of Virginia, and Patrick J. Crank of Wyoming; for the State of Minnesota
et al. by Mike Hatch, Attorney General of Minnesota, and John S. Garry,
Assistant Attorney General, and by the Attorneys General for their re
spective States as follows: Lisa Madigan of Illinois, Thomas J. Miller of
Iowa, Jeremiah W. (Jay) Nixon of Missouri, Patricia A. Madrid of New
Mexico, W. A. Drew Edmondson of Oklahoma, and Peggy A. Lauten
schlager of Wisconsin; for the American Center for Law and Justice by
Jay Alan Sekulow, Stuart J. Roth, Francis J. Manion, and Walter M.
Weber; for the American Legion by Kelly Shackelford and Philip B. Ond
erdonk, Jr.; for the American Liberties Institute et al. by Frederick H.
Nelson; for the Ashbrook Center for Public Affairs et al. by Steven C.
Seeger; for the Becket Fund for Religious Liberty by Anthony R. Pi
carello, Jr.; for the Conservative Legal Defense and Education Fund et al.
by Herbert W. Titus and William J. Olson; for the Eagle Forum Educa
tion & Legal Defense Fund by Douglas G. Smith and Phyllis Schlafly; for
Faith and Action et al. by Bernard P. Reese, Jr.; for the Family Research
Council, Inc., et al. by Robert P. George; for the Foundation for Moral Law,
Inc., by Benjamin D. DuPre´ and Gregory M. Jones; for Judicial Watch,
Inc., by Paul J. Orfanedes and Meredith L. Cavallo; for the Pacific Justice
Institute by Peter D. Lepiscopo; for the Rutherford Institute by John W.

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850 McCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court
Justice Souter delivered the opinion of the Court.
Executives of two counties posted a version of the Ten
Commandments on the walls of their courthouses. After
suits were filed charging violations of the Establishment
Clause, the legislative body of each county adopted a resolu
tion calling for a more extensive exhibit meant to show that
the Commandments are Kentucky’s “precedent legal code,”
Def. Exh. 1 in Memorandum in Support of Defendants’
Motion to Dismiss in Civ. Action No. 99–507, p. 1 (ED Ky.)
(hereinafter Def. Exh. 1). The result in each instance was a
modified display of the Commandments surrounded by texts
containing religious references as their sole common ele
ment. After changing counsel, the counties revised the ex
hibits again by eliminating some documents, expanding the
text set out in another, and adding some new ones.
The issues are whether a determination of the counties’
purpose is a sound basis for ruling on the Establishment
Clause complaints, and whether evaluation of the counties’
claim of secular purpose for the ultimate displays may take
their evolution into account. We hold that the counties’
manifest objective may be dispositive of the constitutional
Whitehead; for the Thomas More Law Center by Edward L. White III;
and for Wallbuilders, Inc., by Barry C. Hodge.
Briefs of amici curiae urging affirmance were filed for American Athe
ists by Robert J. Bruno; for the American Humanist Association et al. by
Elizabeth L. Hileman; for Americans United for Separation of Church
and State et al. by William M. Hohengarten, Ian Heath Gershengorn,
Ayesha Khan, Richard B. Katskee, and Judith E. Schaeffer; for the Anti-
Defamation League et al. by Jeffrey R. Babbin, Aaron S. Bayer, Kenneth
D. Heath, Frederick M. Lawrence, Daniel S. Alter, and Steven M. Free
man; for the Atheist Law Center et al. by Pamela L. Sumners and Larry
Darby; for the Baptist Joint Committee et al. by Douglas Laycock, Jeffrey
P. Sinensky, K. Hollyn Hollman, and Marc D. Stern; for the Council for
Secular Humanism et al. by Ronald A. Lindsay; for the Freedom from
Religion Foundation by James A. Friedman and James D. Peterson; and
for Legal Historians and Law Scholars by Steven K. Green.
Julie Underwood filed a brief of amici curiae for the National School
Boards Association et al.

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enquiry, and that the development of the presentation should
be considered when determining its purpose.
I
In the summer of 1999, petitioners McCreary County and
Pulaski County, Kentucky (hereinafter Counties), put up in
their respective courthouses large, gold-framed copies of an
abridged text of the King James version of the Ten Com
mandments, including a citation to the Book of Exodus.1 In
McCreary County, the placement of the Commandments re
sponded to an order of the county legislative body requiring
“the display [to] be posted in ‘a very high traffic area’ of
the courthouse.” 96 F. Supp. 2d 679, 684 (ED Ky. 2000). In
Pulaski County, amidst reported controversy over the pro
priety of the display, the Commandments were hung in a
ceremony presided over by the county Judge-Executive, who
called them “good rules to live by” and who recounted the
story of an astronaut who became convinced “there must be
a divine God” after viewing the Earth from the moon. Dod
son, Commonwealth Journal, July 25, 1999, p. A1, col. 2, in
Memorandum in Support of Plaintiffs’ Motion for Prelimi
nary Injunction in Civ. Action No. 99–509 (ED Ky.) (internal
quotation marks omitted). The Judge-Executive was ac
companied by the pastor of his church, who called the Com
mandments “a creed of ethics” and told the press after the
ceremony that displaying the Commandments was “one of
the greatest things the judge could have done to close out
the millennium.” Id., at A2, col. 3 (internal quotation marks
omitted). In both Counties, this was the version of the
Commandments posted:
“Thou shalt have no other gods before me.
1 We do not consider here a display of the Ten Commandments in school
rooms in Harlan County, Kentucky, that was litigated in consolidated pro
ceedings in the District Court and Court of Appeals. That display is the
subject of a separate petition to this Court.

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852 McCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court
“Thou shalt not make unto thee any graven images.
“Thou shalt not take the name of the Lord thy God in
vain.
“Remember the sabbath day, to keep it holy.
“Honor thy father and thy mother.
“Thou shalt not kill.
“Thou shalt not commit adultery.
“Thou shalt not steal.
“Thou shalt not bear false witness.
“Thou shalt not covet.
“Exodus 20:3–17.” 2 Def. Exh. 9 in Memorandum in
Support of Defendants’ Motion to Dismiss in Civ. Action
No. 99–507 (ED Ky.) (hereinafter Def. Exh. 9).
In each County, the hallway display was “readily visible
to . . . county citizens who use the courthouse to conduct
their civic business, to obtain or renew driver’s licenses and
permits, to register cars, to pay local taxes, and to register
to vote.” 96 F. Supp. 2d, at 684; American Civil Liberties
Union of Kentucky v. Pulaski County, 96 F. Supp. 2d 691,
695 (ED Ky. 2000).
In November 1999, respondents American Civil Liberties
Union of Kentucky et al. sued the Counties in Federal Dis
trict Court under Rev. Stat. § 1979, 42 U. S. C. § 1983, and
sought a preliminary injunction against maintaining the dis
plays, which the ACLU charged were violations of the pro
hibition of religious establishment included in the First
Amendment of the Constitution.3 Within a month, and be
2 This text comes from a record exhibit showing the Pulaski County
Commandments that were part of the County’s first and second displays.
The District Court found that the displays in each County were function
ally identical. 96 F. Supp. 2d 679, 682, n. 2 (ED Ky. 2000); 96 F. Supp. 2d
691, 693, n. 2 (ED Ky. 2000).
3 The First Amendment provides that “Congress shall make no law re
specting an establishment of religion, or prohibiting the free exercise
thereof . . . .” This prohibition of establishment applies to “the States

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fore the District Court had responded to the request for in
junction, the legislative body of each County authorized a
second, expanded display, by nearly identical resolutions re
citing that the Ten Commandments are “the precedent legal
code upon which the civil and criminal codes of . . . Kentucky
are founded,” and stating several grounds for taking that
position: that “the Ten Commandments are codified in Ken
tucky’s civil and criminal laws”; that the Kentucky House of
Representatives had in 1993 “voted unanimously . . . to
adjourn . . . ‘in remembrance and honor of Jesus Christ, the
Prince of Ethics’ ”; that the “County Judge and . . . magis
trates agree with the arguments set out by Judge [Roy]
Moore” in defense of his “display [of] the Ten Command
ments in his courtroom”; and that the “Founding Father[s]
[had an] explicit understanding of the duty of elected officials
to publicly acknowledge God as the source of America’s
strength and direction.” Def. Exh. 1, at 1–3, 6.
As directed by the resolutions, the Counties expanded the
displays of the Ten Commandments in their locations, pre
sumably along with copies of the resolution, which instructed
that it, too, be posted, id., at 9. In addition to the first dis
play’s large framed copy of the edited King James version of
the Commandments,4 the second included eight other docu
ments in smaller frames, each either having a religious
and their political subdivisions” through the Fourteenth Amendment.
Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 301 (2000).
4 The District Court noted that there was some confusion as to whether
the Ten Commandments hung independently in the second display, or were
incorporated into the copy of the page from the Congressional Record
declaring 1983 “the Year of the Bible.” 96 F. Supp. 2d, at 684, and n. 4;
96 F. Supp. 2d, at 695–696, and n. 4. The exhibits in the record depict the
Commandments hanging as a separate item, Def. Exh. 9, and that is more
consistent with the Counties’ description of the second display in this
Court. “[After erecting the first display] Petitioners posted additional do
nated documents. . . . This display consisted of the Ten Commandments
along with other historical documents.” Brief for Petitioners 2. Like
the District Court, we find our analysis applies equally to either format.

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854 McCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Opinion of the Court
theme or excerpted to highlight a religious element. The
documents were the “endowed by their Creator” passage
from the Declaration of Independence; the Preamble to the
Constitution of Kentucky; the national motto, “In God We
Trust”; a page from the Congressional Record of February
2, 1983, proclaiming the Year of the Bible and including a
statement of the Ten Commandments; a proclamation by
President Abraham Lincoln designating April 30, 1863, a Na
tional Day of Prayer and Humiliation; an excerpt from Presi
dent Lincoln’s “Reply to Loyal Colored People of Baltimore
upon Presentation of a Bible,” reading that “[t]he Bible is
the best gift God has ever given to man”; a proclamation by
President Reagan marking 1983 the Year of the Bible; and
the Mayflower Compact. 96 F. Supp. 2d, at 684; 96 F. Supp.
2d, at 695–696.
After argument, the District Court entered a preliminary
injunction on May 5, 2000, ordering that the “display . . . be
removed from [each] County Courthouse IMMEDIATELY”
and that no county official “erect or cause to be erected simi
lar displays.” 96 F. Supp. 2d, at 691; 96 F. Supp. 2d, at 702–
703. The court’s analysis of the situation followed the
three-part formulation first stated in Lemon v. Kurtzman,
403 U. S. 602 (1971). As to governmental purpose, it con
cluded that the original display “lack[ed] any secular pur
pose” because the Commandments “are a distinctly religious
document, believed by many Christians and Jews to be the
direct and revealed word of God.” 96 F. Supp. 2d, at 686; 96
F. Supp. 2d, at 698. Although the Counties had maintained
that the original display was meant to be educational, “[t]he
narrow scope of the display—a single religious text unaccom
panied by any interpretation explaining its role as a founda
tional document—can hardly be said to present meaningfully
the story of this country’s religious traditions.” 96 F. Supp.
2d, at 686–687; 96 F. Supp. 2d, at 698. The court found that
the second version also “clearly lack[ed] a secular purpose”
because the “Count[ies] narrowly tailored [their] selection of

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foundational documents to incorporate only those with spe
cific references to Christianity.” 5 96 F. Supp. 2d, at 687; 96
F. Supp. 2d, at 699.
The Counties filed a notice of appeal from the preliminary
injunction but voluntarily dismissed it after hiring new law
yers. They then installed another display in each court
house, the third within a year. No new resolution author
ized this one, nor did the Counties repeal the resolutions that
preceded the second. The posting consists of nine framed
documents of equal size, one of them setting out the Ten
Commandments explicitly identified as the “King James Ver
sion” at Exodus 20:3–17, 145 F. Supp. 2d 845, 847 (ED Ky.
2001), and quoted at greater length than before:
“Thou shalt have no other gods before me.
“Thou shalt not make unto thee any graven image, or
any likeness of any thing that is in heaven above, or that
is in the earth beneath, or that is in the water under
neath the earth: Thou shalt not bow down thyself to
them, nor serve them: for I the LORD thy God am a
jealous God, visiting the iniquity of the fathers upon the
children unto the third and fourth generation of them
that hate me.
“Thou shalt not take the name of the LORD thy God in
vain: for the LORD will not hold him guiltless that
taketh his name in vain.
“Remember the sabbath day, to keep it holy.
“Honour thy father and thy mother: that thy days may
be long upon the land which the LORD thy God giveth
thee.
“Thou shalt not kill.
5 The court also found that the display had the effect of endorsing reli
gion: “Removed from their historical context and placed with other docu
ments with which the only common link is religion, the documents have
the undeniable effect of endorsing religion.” 96 F. Supp. 2d, at 688; 96
F. Supp. 2d, at 699–700.

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“Thou shalt not commit adultery.
“Thou shalt not steal.
“ Thou sha lt not bear fa lse w itness against thy
neighbour.
“Thou shalt not covet thy neighbour’s house, thou shalt
not covet th[y] neighbor’s wife, nor his manservant, nor
his maidservant, nor his ox, nor his ass, nor anything
that is th[y] neighbour’s.” App. to Pet. for Cert. 189a.
Assembled with the Commandments are framed copies of the
Magna Carta, the Declaration of Independence, the Bill of
Rights, the lyrics of the Star Spangled Banner, the May
flower Compact, the National Motto, the Preamble to the
Kentucky Constitution, and a picture of Lady Justice. The
collection is entitled “The Foundations of American Law and
Government Display” and each document comes with a state
ment about its historical and legal significance. The com
ment on the Ten Commandments reads:
“The Ten Commandments have profoundly influenced
the formation of Western legal thought and the forma
tion of our country. That influence is clearly seen in the
Declaration of Independence, which declared that ‘We
hold these truths to be self-evident, that all men are cre
ated equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life,
Liberty, and the pursuit of Happiness.’ The Ten Com
mandments provide the moral background of the Decla
ration of Independence and the foundation of our legal
tradition.” Id., at 180a.
The ACLU moved to supplement the preliminary injunc
tion to enjoin the Counties’ third display,6 and the Counties
responded with several explanations for the new version, in
6 Before the District Court issued the modified injunction, the Counties
removed the label of “King James Version” and the citation to Exodus.
145 F. Supp. 2d 845, 847 (ED Ky. 2001).

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cluding desires “to demonstrate that the Ten Command
ments were part of the foundation of American Law and
Government” and “to educate the citizens of the county re
garding some of the documents that played a significant role
in the foundation of our system of law and government.”
145 F. Supp. 2d, at 848 (internal quotation marks omitted).
The court, however, took the objective of proclaiming the
Commandments’ foundational value as “a religious, rather
than secular, purpose” under Stone v. Graham, 449 U. S. 39
(1980) (per curiam), 145 F. Supp. 2d, at 849, and found that
the assertion that the Counties’ broader educational goals
are secular “crumble[s] . . . upon an examination of the his
tory of this litigation,” ibid. In light of the Counties’ deci
sion to post the Commandments by themselves in the first
instance, contrary to Stone, and later to “accentuat[e]” the
religious objective by surrounding the Commandments with
“specific references to Christianity,” the District Court un
derstood the Counties’ “clear” purpose as being to post the
Commandments, not to educate.7 145 F. Supp. 2d, at 849–
850 (internal quotation marks omitted).
As requested, the trial court supplemented the injunction,
and a divided panel of the Court of Appeals for the Sixth
Circuit affirmed. The Circuit majority stressed that under
Stone, displaying the Commandments bespeaks a religious
object unless they are integrated with other material so as
to carry “a secular message,” 354 F. 3d 438, 449 (2003). The
majority judges saw no integration here because of a “lack
of a demonstrated analytical or historical connection [be
7 The court also found that the effect of the third display was to endorse
religion because the “reasonable observer will see one religious code
placed alongside eight political or patriotic documents, and will understand
that the counties promote that one religious code as being on a par with
our nation’s most cherished secular symbols and documents” and because
the “reasonable observer [would know] something of the controversy sur
rounding these displays, which has focused on only one of the nine framed
documents: the Ten Commandments.” Id., at 851, 852.

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tween the Commandments and] the other documents.” Id.,
at 451. They noted in particular that the Counties offered
no support for their claim that the Ten Commandments “pro
vide[d] the moral backdrop” to the Declaration of Independ
ence or otherwise “profoundly influenced” it. Ibid. (internal
quotation marks omitted). The majority found that the
Counties’ purpose was religious, not educational, given the
nature of the Commandments as “an active symbol of reli
gion [stating] ‘the religious duties of believers.’ ” Id., at 455.
The judges in the majority understood the identical displays
to emphasize “a single religious influence, with no mention
of any other religious or secular influences,” id., at 454, and
they took the very history of the litigation as evidence of the
Counties’ religious objective, id., at 457.
Judge Ryan dissented on the basis of wide recognition that
religion, and the Ten Commandments in particular, have
played a foundational part in the evolution of American law
and government; he saw no reason to gainsay the Counties’
claim of secular purposes. Id., at 472–473. The dissent de
nied that the prior displays should have any bearing on the
constitutionality of the current one: a “history of unconstitu
tional displays can[not] be used as a sword to strike down an
otherwise constitutional display.” 8 Id., at 478.
We granted certiorari, 543 U. S. 924 (2004), and now affirm.
8 The Sixth Circuit did not decide whether the display had the impermis
sible effect of advancing religion because one judge, having found the dis
play motivated by a religious purpose, did not reach that issue. 354 F. 3d,
at 462 (Gibbons, J., concurring). The other judge in the majority con
cluded that a reasonable observer would find that the display had the
effect of endorsing religion given the lack of analytical connection between
the Commandments and the other documents in the display, the court
house location of the display, and the history of the displays. Id., at 458–
459. The dissent found no effect of endorsement because it concluded
that a reasonable observer would only see that the County had merely
acknowledged the foundational role of the Ten Commandments rather than
endorsed their religious content. Id., at 479–480.

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II
Twenty-five years ago in a case prompted by posting the
Ten Commandments in Kentucky’s public schools, this Court
recognized that the Commandments “are undeniably a sa
cred text in the Jewish and Christian faiths” and held that
their display in public classrooms violated the First Amend
ment’s bar against establishment of religion. Stone, 449
U. S., at 41. Stone found a predominantly religious purpose
in the government’s posting of the Commandments, given
their prominence as “ ‘an instrument of religion,’ ” id., at 41,
n. 3 (quoting School Dist. of Abington Township v. Schempp,
374 U. S. 203, 224 (1963)). The Counties ask for a different
approach here by arguing that official purpose is unknowable
and the search for it inherently vain. In the alternative,
the Counties would avoid the District Court’s conclusion by
having us limit the scope of the purpose enquiry so severely
that any trivial rationalization would suffice, under a stand
ard oblivious to the history of religious government action
like the progression of exhibits in this case.
A
Ever since Lemon v. Kurtzman summarized the three fa
miliar considerations for evaluating Establishment Clause
claims, looking to whether government action has “a secular
legislative purpose” has been a common, albeit seldom dis
positive, element of our cases. 403 U. S., at 612. Though
we have found government action motivated by an illegiti
mate purpose only four times since Lemon,9 and “the secular
purpose requirement alone may rarely be determinative . . . ,
it nevertheless serves an important function.” 10 Wallace v.
9 Stone v. Graham, 449 U. S. 39, 41 (1980) (per curiam); Wallace v. Jaf
free, 472 U. S. 38, 56–61 (1985); Edwards v. Aguillard, 482 U. S. 578, 586–
593 (1987); Santa Fe, 530 U. S., at 308–309.
10 At least since Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), it
has been clear that Establishment Clause doctrine lacks the comfort of
categorical absolutes. In special instances we have found good reason to

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Jaffree, 472 U. S. 38, 75 (1985) (O’Connor, J., concurring in
judgment).
The touchstone for our analysis is the principle that the
“First Amendment mandates governmental neutrality be
tween religion and religion, and between religion and nonre
ligion.” Epperson v. Arkansas, 393 U. S. 97, 104 (1968); Ev
erson v. Board of Ed. of Ewing, 330 U. S. 1, 15–16 (1947);
Wallace, supra, at 53. 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 gov
ernment’s ostensible object is to take sides. Corporation of
Presiding Bishop of Church of Jesus Christ of Latter-day
Saints v. Amos, 483 U. S. 327, 335 (1987) (“Lemon’s ‘purpose’
requirement aims at preventing [government] from abandon
ing neutrality and acting with the intent of promoting a par
ticular point of view in religious matters”). Manifesting a
purpose to favor one faith over another, or adherence to reli
gion generally, clashes with the “understanding, reached . . .
after decades of religious war, that liberty and social stabil
ity 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 accompany
ing message to adherents that they are insiders, favored
members . . . .’ ” Santa Fe Independent School Dist. v. Doe,
530 U. S. 290, 309–310 (2000) (quoting Lynch v. Donnelly, 465
U. S. 668, 688 (1984) (O’Connor, J., concurring)).
Indeed, the purpose apparent from government action can
have an impact more significant than the result expressly
hold governmental action legitimate even where its manifest purpose was
presumably religious. See, e. g., Marsh v. Chambers, 463 U. S. 783 (1983)
(upholding legislative prayer despite its religious nature). No such rea
sons present themselves here.

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decreed: when the government maintains Sunday closing
laws, it advances religion only minimally because many
working people would take the day as one of rest regardless,
but if the government justified its decision with a stated de
sire for all Americans to honor Christ, the divisive thrust of
the official action would be inescapable. This is the teaching
of McGowan v. Maryland, 366 U. S. 420 (1961), which upheld
Sunday closing statutes on practical, secular grounds after
finding that the government had forsaken the religious
purposes behind centuries-old predecessor laws. Id., at
449–451.
B
Despite the intuitive importance of official purpose to the
realization of Establishment Clause values, the Counties ask
us to abandon Lemon’s purpose test, or at least to truncate
any enquiry into purpose here. Their first argument is that
the very consideration of purpose is deceptive: according to
them, true “purpose” is unknowable, and its search merely
an excuse for courts to act selectively and unpredictably in
picking out evidence of subjective intent. The assertions
are as seismic as they are unconvincing.
Examination of purpose is a staple of statutory interpreta
tion that makes up the daily fare of every appellate court in
the country, e. g., General Dynamics Land Systems, Inc. v.
Cline, 540 U. S. 581, 600 (2004) (interpreting statute in light
of its “text, structure, purpose, and history”), and govern
mental purpose is a key element of a good deal of constitu
tional doctrine, e. g., Washington v. Davis, 426 U. S. 229
(1976) (discriminatory purpose required for Equal Protection
violation); Hunt v. Washington State Apple Advertising
Comm’n, 432 U. S. 333, 352–353 (1977) (discriminatory pur
pose relevant to dormant Commerce Clause claim); Church
of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993)
(discriminatory purpose raises level of scrutiny required by
free exercise claim). With enquiries into purpose this com
mon, if they were nothing but hunts for mares’ nests deflect

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ing attention from bare judicial will, the whole notion of pur
pose in law would have dropped into disrepute long ago.
But scrutinizing purpose does make practical sense, as in
Establishment Clause analysis, where an understanding of
official objective emerges from readily discoverable fact,
without any judicial psychoanalysis of a drafter’s heart of
hearts. Wallace, 472 U. S., at 74 (O’Connor, J., concurring
in judgment). The eyes that look to purpose belong to an
“ ‘objective observer,’ ” one who takes account of the tradi
tional external signs that show up in the “ ‘text, legislative
history, and implementation of the statute,’ ” or compara
ble official act. Santa Fe, supra, at 308 (quoting Wallace,
supra, at 76 (O’Connor, J., concurring in judgment)); see
also Edwards v. Aguillard, 482 U. S. 578, 594–595 (1987) (en
quiry looks to “plain meaning of the statute’s words, enlight
ened by their context and the contemporaneous legislative
history [and] the historical context of the statute, . . . and
the specific sequence of events leading to [its] passage”).
There is, then, nothing hinting at an unpredictable or disin
genuous exercise when a court enquires into purpose after a
claim is raised under the Establishment Clause.
The cases with findings of a predominantly religious pur
pose point to the straightforward nature of the test. In
Wallace, for example, we inferred purpose from a change of
wording from an earlier statute to a later one, each dealing
with prayer in schools. 472 U. S., at 58–60. And in Ed
wards, we relied on a statute’s text and the detailed public
comments of its sponsor, when we sought the purpose of a
state law requiring creationism to be taught alongside evolu
tion. 482 U. S., at 586–588. In other cases, the government
action itself bespoke the purpose, as in Abington, where the
object of required Bible study in public schools was patently
religious, 374 U. S., at 223–224; in Stone, the Court held that
the “[p]osting of religious texts on the wall serve[d] no . . .
educational function,” and found that if “the posted copies of
the Ten Commandments [were] to have any effect at all, it

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[would] be to induce the schoolchildren to read, meditate
upon, perhaps to venerate and obey, the Commandments.”
449 U. S., at 42. In each case, the government’s action was
held unconstitutional only because openly available data sup
ported a commonsense conclusion that a religious objective
permeated the government’s action.
Nor is there any indication that the enquiry is rigged in
practice to finding a religious purpose dominant every time
a case is filed. In the past, the test has not been fatal very
often, presumably because government does not generally
act unconstitutionally, with the predominant purpose of ad
vancing religion. That said, one consequence of the corol
lary that Establishment Clause analysis does not look to the
veiled psyche of government officers could be that in some
of the cases in which establishment complaints failed, savvy
officials had disguised their religious intent so cleverly that
the objective observer just missed it. But that is no reason
for great constitutional concern. If someone in the govern
ment hides religious motive so well that the “ ‘objective ob
server, acquainted with the text, legislative history, and im
plementation of the statute,’ ” Santa Fe, 530 U. S., at 308
(quoting Wallace, supra, at 76 (O’Connor, J., concurring in
judgment)), cannot see it, then without something more the
government does not make a divisive announcement that in
itself amounts to taking religious sides. A secret motive
stirs up no strife and does nothing to make outsiders of non
adherents, and it suffices to wait and see whether such gov
ernment action turns out to have (as it may even be likely
to have) the illegitimate effect of advancing religion.
C
After declining the invitation to abandon concern with
purpose wholesale, we also have to avoid the Counties’ alter
native tack of trivializing the enquiry into it. The Counties
would read the cases as if the purpose enquiry were so naive
that any transparent claim to secularity would satisfy it, and

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they would cut context out of the enquiry, to the point of
ignoring history, no matter what bearing it actually had on
the significance of current circumstances. There is no prec
edent for the Counties’ arguments, or reason supporting
them.
1
Lemon said that government action must have “a sec
ular . . . purpose,” 403 U. S., at 612, and after a host of
cases it is fair to add that although a legislature’s stated rea
sons will generally get deference, the secular purpose re
quired has to be genuine, not a sham, and not merely second
ary to a religious objective. See, e. g., Santa Fe, supra, at
308 (“When a governmental entity professes a secular pur
pose for an arguably religious policy, the government’s char
acterization is, of course, entitled to some deference. But it
is nonetheless the duty of the courts to ‘distinguis[h] a sham
secular purpose from a sincere one’ ”); Edwards, 482 U. S., at
586–587 (“While the Court is normally deferential to a
State’s articulation of a secular purpose, it is required that
the statement of such purpose be sincere and not a sham”);
id., at 590, 594 (referring to enquiry as one into “preeminent”
or “primary” purpose); Stone, supra, at 41 (looking to the
“pre-eminent purpose” of government action).
Even the Counties’ own cited authority confirms that we
have not made the purpose test a pushover for any secular
claim. True, Wallace said government action is tainted by
its object “if it is entirely motivated by a purpose to advance
religion,” 472 U. S., at 56, a remark that suggests, in isola
tion, a fairly complaisant attitude. But in that very case the
Court declined to credit Alabama’s stated secular rationale
of “accommodation” for legislation authorizing a period of
silence in school for meditation or voluntary prayer, given
the implausibility of that explanation in light of another stat
ute already accommodating children wishing to pray. Id., at
57, n. 45 (internal quotation marks omitted). And it would

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be just as much a mistake to infer that a timid standard
underlies the statement in Lynch v. Donnelly that the pur
pose enquiry looks to whether government “activity was mo
tivated wholly by religious considerations,” 465 U. S., at 680;
for two cases cited for that proposition had examined and
rejected claims of secular purposes that turned out to be
implausible or inadequate: 11 Stone, supra, at 41; Abington,
374 U. S., at 223–224.12 See also Bowen v. Kendrick, 487
U. S. 589, 602 (1988) (using the “motivated wholly by an im
permissible purpose” language, but citing Lynch and Stone).
As we said, the Court often does accept governmental state
ments of purpose, in keeping with the respect owed in the
first instance to such official claims. But in those unusual
cases where the claim was an apparent sham, or the secular
purpose secondary, the unsurprising results have been find
ings of no adequate secular object, as against a predomi
nantly religious one.13
11 Moreover, Justice O’Connor provided the fifth vote for the Lynch
majority and her concurrence emphasized the point made implicitly in the
majority opinion that a secular purpose must be serious to be sufficient.
465 U. S., at 691 (The purpose inquiry “is not satisfied . . . by the mere
existence of some secular purpose, however dominated by religious
purposes”).
12 Stone found the sacred character of the Ten Commandments preemi
nent despite an avowed secular purpose to show their “adoption as the
fundamental legal code of Western Civilization and the Common Law . . . .”
449 U. S., at 39–40, n. 1 (internal quotation marks omitted). And the Ab
ington Court was unconvinced that music education or the teaching of
literature were actual secular objects behind laws requiring public school
teachers to lead recitations from the Lord’s Prayer and readings from the
Bible. 374 U. S., at 273.
13 The dissent nonetheless maintains that the purpose test is satisfied so
long as any secular purpose for the government action is apparent. Post,
at 901–902 (opinion of Scalia, J.). Leaving aside the fact that this posi
tion is inconsistent with the language of the cases just discussed, it would
leave the purpose test with no real bite, given the ease of finding some
secular purpose for almost any government action. While heightened
deference to legislatures is appropriate for the review of economic legisla

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2
The Counties’ second proffered limitation can be dis
patched quickly. They argue that purpose in a case like this
one should be inferred, if at all, only from the latest news
about the last in a series of governmental actions, however
close they may all be in time and subject. But the world is
not made brand new every morning, and the Counties are
simply asking us to ignore perfectly probative evidence; they
want an absentminded objective observer, not one presumed
to be familiar with the history of the government’s actions
and competent to learn what history has to show, Santa Fe,
530 U. S., at 308 (objective observer is familiar with “ ‘imple
mentation of ’ ” government action (quoting Wallace, supra,
at 76 (O’Connor, J., concurring in judgment))); Edwards,
supra, at 595 (enquiry looks to “the historical context of the
statute . . . and the specific sequence of events leading to
[its] passage”); Capitol Square Review and Advisory Bd. v.
Pinette, 515 U. S. 753, 780 (1995) (O’Connor, J., concurring
in part and concurring in judgment) (“[T]he reasonable ob
server in the endorsement inquiry must be deemed aware of
the history and context of the community and forum in which
the religious display appears”). The Counties’ position just
bucks common sense: reasonable observers have reasonable
memories, and our precedents sensibly forbid an observer
“to turn a blind eye to the context in which [the] policy
arose.” 14 Santa Fe, supra, at 315.
tion, an approach that credits any valid purpose, no matter how trivial,
has not been the way the Court has approached government action that
implicates establishment.
14 One consequence of taking account of the purpose underlying past
actions is that the same government action may be constitutional if taken
in the first instance and unconstitutional if it has a sectarian heritage.
This presents no incongruity, however, because purpose matters. Just as
Holmes’s dog could tell the difference between being kicked and being
stumbled over, it will matter to objective observers whether posting the
Commandments follows on the heels of displays motivated by sectarian
ism, or whether it lacks a history demonstrating that purpose. The dis

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III
This case comes to us on appeal from a preliminary injunc
tion. We accordingly review the District Court’s legal rul
ings de novo, and its ultimate conclusion for abuse of discre
tion.15 Ashcroft v. American Civil Liberties Union, 542
U. S. 656 (2004).
We take Stone as the initial legal benchmark, our only case
dealing with the constitutionality of displaying the Com
mandments. Stone recognized that the Commandments are
an “instrument of religion” and that, at least on the facts
before it, the display of their text could presumptively be
understood as meant to advance religion: although state law
specifically required their posting in public school class
rooms, their isolated exhibition did not leave room even for
an argument that secular education explained their being
there. 449 U. S., at 41, n. 3 (internal quotation marks omit
ted). But Stone did not purport to decide the constitutional
ity of every possible way the Commandments might be set
out by the government, and under the Establishment Clause
detail is key. County of Allegheny v. American Civil Liber
ties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 595
sent, apparently not giving the reasonable observer as much credit as
Holmes’s dog, contends that in practice it will be “absur[d]” to rely upon
differences in purpose in assessing government action. Post, at 907. As
an initial matter, it will be the rare case in which one of two identical
displays violates the purpose prong. In general, like displays tend to
show like objectives and will be treated accordingly. But where one dis
play has a history manifesting sectarian purpose that the other lacks, it is
appropriate that they be treated differently, for the one display will be
properly understood as demonstrating a preference for one group of reli
gious believers as against another. See supra, at 860–861. While post
ing the Commandments may not have the effect of causing greater adher
ence to them, an ostensible indication of a purpose to promote a particular
faith certainly will have the effect of causing viewers to understand the
government is taking sides.
15 We note that the only factor in the preliminary injunction analysis
that is at issue here is the likelihood of the ACLU’s success on the merits.

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(1989) (opinion of Blackmun, J.) (“[T]he question is what
viewers may fairly understand to be the purpose of the dis
play. That inquiry, of necessity, turns upon the context in
which the contested object appears” (internal quotation
marks and citation omitted)). Hence, we look to the record
of evidence showing the progression leading up to the third
display of the Commandments.
A
The display rejected in Stone had two obvious similarities
to the first one in the sequence here: both set out a text of
the Commandments as distinct from any traditionally sym
bolic representation, and each stood alone, not part of an
arguably secular display. Stone stressed the significance of
integrating the Commandments into a secular scheme to
forestall the broadcast of an otherwise clearly religious mes
sage, 449 U. S., at 42, and for good reason, the Command
ments being a central point of reference in the religious and
moral history of Jews and Christians. They proclaim the
existence of a monotheistic god (no other gods). They regu
late details of religious obligation (no graven images, no sab
bath breaking, no vain oath swearing). And they unmistak
ably rest even the universally accepted prohibitions (as
against murder, theft, and the like) on the sanction of the
divinity proclaimed at the beginning of the text. Displaying
that text is thus different from a symbolic depiction, like tab
lets with 10 roman numerals, which could be seen as alluding
to a general notion of law, not a sectarian conception of faith.
Where the text is set out, the insistence of the religious mes
sage is hard to avoid in the absence of a context plausibly
suggesting a message going beyond an excuse to promote
the religious point of view. The display in Stone had no con
text that might have indicated an object beyond the religious
character of the text, and the Counties’ solo exhibit here did
nothing more to counter the sectarian implication than the

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postings at issue in Stone.16 See also County of Allegheny,
supra, at 598 (“Here, unlike in Lynch [v. Donnelly], nothing
in the context of the display detracts from the cre` che’s re
ligious message”). Actually, the posting by the Counties
lacked even the Stone display’s implausible disclaimer that
the Commandments were set out to show their effect on the
civil law.17 What is more, at the ceremony for posting the
framed Commandments in Pulaski County, the county execu
tive was accompanied by his pastor, who testified to the cer
tainty of the existence of God. The reasonable observer
could only think that the Counties meant to emphasize and
celebrate the Commandments’ religious message.
This is not to deny that the Commandments have had in
fluence on civil or secular law; a major text of a majority
religion is bound to be felt. The point is simply that the
original text viewed in its entirety is an unmistakably reli
gious statement dealing with religious obligations and with
morality subject to religious sanction. When the govern
ment initiates an effort to place this statement alone in pub
lic view, a religious object is unmistakable.
B
Once the Counties were sued, they modified the exhibits
and invited additional insight into their purpose in a display
that hung for about six months. This new one was the prod
uct of forthright and nearly identical Pulaski and McCreary
County resolutions listing a series of American historical
documents with theistic and Christian references, which
16 Although the Counties point out that the courthouses contained other
displays besides the Ten Commandments, there is no suggestion that the
Commandments display was integrated to form a secular display.
17 In Stone, the Commandments were accompanied by a small disclaimer:
“The secular application of the Ten Commandments is clearly seen in its
adoption as the fundamental legal code of Western Civilization and the
Common Law of the United States.” 449 U. S., at 39–40, n. 1 (internal
quotation marks omitted).

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were to be posted in order to furnish a setting for displaying
the Ten Commandments and any “other Kentucky and
American historical documen[t]” without raising concern
about “any Christian or religious references” in them. Def.
Exh. 1, at 1. As mentioned, the resolutions expressed sup
port for an Alabama judge who posted the Commandments
in his courtroom, and cited the fact the Kentucky Legislature
once adjourned a session in honor of “Jesus Christ, the
Prince of Ethics.” Id., at 2–3.
In this second display, unlike the first, the Commandments
were not hung in isolation, merely leaving the Counties’ pur
pose to emerge from the pervasively religious text of the
Commandments themselves. Instead, the second version
was required to include the statement of the government’s
purpose expressly set out in the county resolutions, and
underscored it by juxtaposing the Commandments to other
documents with highlighted references to God as their sole
common element. The display’s unstinting focus was on
religious passages, showing that the Counties were posting
the Commandments precisely because of their sectarian con
tent. That demonstration of the government’s objective
was enhanced by serial religious references and the accom
panying resolution’s claim about the embodiment of ethics in
Christ. Together, the display and resolution presented an
indisputable, and undisputed, showing of an impermissible
purpose.
Today, the Counties make no attempt to defend their unde
niable objective, but instead hopefully describe version two
as “dead and buried.” Reply Brief for Petitioners 15.
Their refusal to defend the second display is understandable,
but the reasonable observer could not forget it.
C
1
After the Counties changed lawyers, they mounted a third
display, without a new resolution or repeal of the old one.
The result was the “Foundations of American Law and Gov

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ernment” exhibit, which placed the Commandments in the
company of other documents the Counties thought especially
significant in the historical foundation of American govern
ment. In trying to persuade the District Court to lift the
preliminary injunction, the Counties cited several new pur
poses for the third version, including a desire “to educate
the citizens of the county regarding some of the documents
that played a significant role in the foundation of our system
of law and government.” 18 145 F. Supp. 2d, at 848 (internal
quotation marks omitted). The Counties’ claims did not,
however, persuade the court, intimately familiar with the de
tails of this litigation, or the Court of Appeals, neither of
which found a legitimizing secular purpose in this third ver
sion of the display. “ ‘When both courts [that have already
passed on the case] are unable to discern an arguably valid
secular purpose, this Court normally should hesitate to find
one.’ ” Edwards, 482 U. S., at 594, n. 15 (quoting Wallace,
472 U. S., at 66 (Powell, J., concurring)). The conclusions of
the two courts preceding us in this case are well warranted.
These new statements of purpose were presented only as
a litigating position, there being no further authorizing ac
tion by the Counties’ governing boards. And although re
peal of the earlier county authorizations would not have
erased them from the record of evidence bearing on current
purpose,19 the extraordinary resolutions for the second dis
play passed just months earlier were not repealed or other
18 The Counties’ other purposes were:
“to erect a display containing the Ten Commandments that is consti
tutional; . . . to demonstrate that the Ten Commandments were part of
the foundation of American Law and Government; . . . [to include the
Ten Commandments] as part of the display for their significance in provid
ing ‘the moral background of the Declaration of Independence and the
foundation of our legal tradition.’ ” 145 F. Supp. 2d, at 848 (some internal
quotation marks omitted).
19 Following argument in this case, in which the resolutions were dis
cussed, the McCreary and Pulaski County Boards did repeal the resolu
tions, acts of obviously minimal significance in the evolution of the
evidence.

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wise repudiated.20 Indeed, the sectarian spirit of the com
mon resolution found enhanced expression in the third
display, which quoted more of the purely religious language
of the Commandments than the first two displays had done;
for additions, see App. to Pet. for Cert. 189a (“I the LORD
thy God am a jealous God”) (text of Second Commandment
in third display); (“the LORD will not hold him guiltless that
taketh his name in vain”) (text of Third Commandment); and
(“that thy days may be long upon the land which the LORD
thy God giveth thee”) (text of Fifth Commandment). No
reasonable observer could swallow the claim that the Coun
ties had cast off the objective so unmistakable in the earlier
displays.
Nor did the selection of posted material suggest a clear
theme that might prevail over evidence of the continuing
religious object. In a collection of documents said to be
“foundational” to American government, it is at least odd
to include a patriotic anthem, but to omit the Fourteenth
Amendment, the most significant structural provision
adopted since the original Framing. And it is no less baf
fling to leave out the original Constitution of 1787 while
quoting the 1215 Magna Carta even to the point of its decla
ration that “fish-weirs shall be removed from the Thames.”
Id., at 205a, ¶ 33. If an observer found these choices and
omissions perplexing in isolation, he would be puzzled for a
20 The Counties argue that the objective observer would not continue to
believe that the resolution was in effect after the third display went up
because the resolution authorized only the second display. But the resolu
tion on its face is not limited to any particular display. On the contrary,
it encourages the creation of a display with the Ten Commandments that
also includes such documents as “the National anthem . . . the National
Motto . . . the preamble to the Kentucky Constitution[,] the Declaration of
Independence [and] the Mayflower Compact . . . without censorship be
cause of any Christian or religious references.” Def. Exh. 1, at 1. The
third display contains all of these documents, suggesting that it fell within
the resolutions as well. The record does not indicate whether the resolu
tions were posted with the third display.

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different reason when he read the Declaration of Independ
ence seeking confirmation for the Counties’ posted explana
tion that the Ten Commandments’ “influence is clearly seen
in the Declaration,” id., at 180a; in fact the observer would
find that the Commandments are sanctioned as divine imper
atives, while the Declaration of Independence holds that the
authority of government to enforce the law derives “from
the consent of the governed,” id., at 190a.21 If the observer
had not thrown up his hands, he would probably suspect that
the Counties were simply reaching for any way to keep a
religious document on the walls of courthouses constitution
ally required to embody religious neutrality.22
2
In holding the preliminary injunction adequately sup
ported by evidence that the Counties’ purpose had not
changed at the third stage, we do not decide that the Coun
21 The Counties have now backed away from their broad assertion that
the Commandments provide “the” moral background of the Declaration of
Independence, and now merely claim that many of the Commandments
“regarding murder, property, theft, coveting, marriage, rest from labor
and honoring parents are compatible with the rights to life, liberty and
happiness.” Brief for Petitioners 10, n. 7.
22 The Counties grasp at McGowan v. Maryland, 366 U. S. 420 (1961),
but it bears little resemblance to this case. As noted supra, at 861,
McGowan held that religious purposes behind centuries-old predecessors
of Maryland’s Sunday laws were not dispositive of the purposes of modern
Sunday laws, where the legislature had removed much of the religious
reference in the laws and stated secular and pragmatic justifications for
them. 366 U. S., at 446–452. But a conclusion that centuries-old pur
poses may no longer be operative says nothing about the relevance of
recent evidence of purpose, and this case is far more like Santa Fe, with
its evolution of a school football game prayer policy over the course of a
single lawsuit. Like that case, “[t]his [one] comes to us as the latest step
in developing litigation brought as a challenge to institutional practices
that unquestionably violated the Establishment Clause.” 530 U. S., at 315
(describing the evolution of the school district’s football prayer policy).
Thus, as in Santa Fe, it makes sense to examine the Counties’ latest action
“in light of [their] history of ” unconstitutional practices. Id., at 309.

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ties’ past actions forever taint any effort on their part to deal
with the subject matter. We hold only that purpose needs
to be taken seriously under the Establishment Clause and
needs to be understood in light of context; an implausible
claim that governmental purpose has changed should not
carry the day in a court of law any more than in a head with
common sense. It is enough to say here that district courts
are fully capable of adjusting preliminary relief to take ac
count of genuine changes in constitutionally significant condi
tions. See Ashcroft v. American Civil Liberties Union, 542
U. S. 656 (2004).
Nor do we have occasion here to hold that a sacred text
can never be integrated constitutionally into a governmental
display on the subject of law, or American history. We do
not forget, and in this litigation have frequently been re
minded, that our own courtroom frieze was deliberately de
signed in the exercise of governmental authority so as to
include the figure of Moses holding tablets exhibiting a por
tion of the Hebrew text of the later, secularly phrased Com
mandments; in the company of 17 other lawgivers, most of
them secular figures, there is no risk that Moses would strike
an observer as evidence that the National Government was
violating neutrality in religion.23
IV
The importance of neutrality as an interpretive guide is
no less true now than it was when the Court broached the
principle in Everson v. Board of Ed. of Ewing, 330 U. S. 1
(1947), and a word needs to be said about the different view
taken in today’s dissent. We all agree, of course, on the
need for some interpretative help. The First Amendment
contains no textual definition of “establishment,” and the
23 The dissent notes that another depiction of Moses and the Command
ments adorns this Court’s east pediment. Post, at 906. But as with the
courtroom frieze, Moses is found in the company of other figures, not only
great but secular.

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term is certainly not self-defining. No one contends that the
prohibition of establishment stops at a designation of a na
tional (or with Fourteenth Amendment incorporation, Cant
well v. Connecticut, 310 U. S. 296, 303 (1940), a state) church,
but nothing in the text says just how much more it covers.
There is no simple answer, for more than one reason.
The prohibition on establishment covers a variety of issues
from prayer in widely varying government settings, to fi
nancial aid for religious individuals and institutions, to com
ment on religious questions. In these varied settings, issues
of interpreting inexact Establishment Clause language, like
difficult interpretative issues generally, arise from the ten
sion of competing values, each constitutionally respectable,
but none open to realization to the logical limit.
The First Amendment has not one but two clauses tied to
“religion,” the second forbidding any prohibition on “the free
exercise thereof,” and sometimes, the two clauses compete:
spending government money on the clergy looks like estab
lishing religion, but if the government cannot pay for mili
tary chaplains a good many soldiers and sailors would be
kept from the opportunity to exercise their chosen religions.
See Cutter v. Wilkinson, 544 U. S. 709, 719 (2005). At other
times, limits on governmental action that might make sense
as a way to avoid establishment could arguably limit freedom
of speech when the speaking is done under government aus
pices. Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U. S. 819 (1995). The dissent, then, is wrong to read
cases like Walz v. Tax Comm’n of City of New York, 397
U. S. 664 (1970), as a rejection of neutrality on its own terms,
post, at 891–892, for tradeoffs are inevitable, and an elegant
interpretative rule to draw the line in all the multifarious
situations is not to be had.
Given the variety of interpretative problems, the principle
of neutrality has provided a good sense of direction: the gov
ernment may not favor one religion over another, or religion
over irreligion, religious choice being the prerogative of indi

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viduals under the Free Exercise Clause. The principle has
been helpful simply because it responds to one of the major
concerns that prompted adoption of the Religion Clauses.
The Framers and the citizens of their time intended not only
to protect the integrity of individual conscience in religious
matters, Wallace, 472 U. S., at 52–54, and n. 38, but to guard
against the civic divisiveness that follows when the govern
ment weighs in on one side of religious debate; nothing does
a better job of roiling society, a point that needed no expla
nation to the descendants of English Puritans and Cavaliers
(or Massachusetts Puritans and Baptists). E. g., Everson,
supra, at 8 (“A large proportion of the early settlers of this
country came here from Europe to escape [religious persecu
tion]”). A sense of the past thus points to governmental
neutrality as an objective of the Establishment Clause, and
a sensible standard for applying it. To be sure, given its
generality as a principle, an appeal to neutrality alone cannot
possibly lay every issue to rest, or tell us what issues on the
margins are substantial enough for constitutional signifi
cance, a point that has been clear from the founding era to
modern times. E. g., Letter from J. Madison to R. Adams
(1832), in 5 The Founders’ Constitution 107 (P. Kurland & R.
Lerner eds. 1987) (“[In calling for separation] I must admit
moreover that it may not be easy, in every possible case, to
trace the line of separation between the rights of religion
and the Civil authority with such distinctness as to avoid
collisions & doubts on unessential points”); Sherbert v.
Verner, 374 U. S. 398, 422 (1963) (Harlan, J., dissenting) (“The
constitutional obligation of ‘neutrality’ . . . is not so narrow
a channel that the slightest deviation from an absolutely
straight course leads to condemnation”). But invoking neu
trality is a prudent way of keeping sight of something the
Framers of the First Amendment thought important.
The dissent, however, puts forward a limitation on the ap
plication of the neutrality principle, with citations to histori
cal evidence said to show that the Framers understood the

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ban on establishment of religion as sufficiently narrow to
allow the government to espouse submission to the divine
will. The dissent identifies God as the God of monotheism,
all of whose three principal strains (Jewish, Christian, and
Muslim) acknowledge the religious importance of the Ten
Commandments. Post, at 893–894. On the dissent’s view,
it apparently follows that even rigorous espousal of a com
mon element of this common monotheism is consistent with
the establishment ban.
But the dissent’s argument for the original understanding
is flawed from the outset by its failure to consider the full
range of evidence showing what the Framers believed. The
dissent is certainly correct in putting forward evidence that
some of the Framers thought some endorsement of religion
was compatible with the establishment ban; the dissent
quotes the first President as stating that “[n]ational morality
[cannot] prevail in exclusion of religious principle,” for exam
ple, post, at 887 (internal quotation marks omitted), and it
cites his first Thanksgiving proclamation giving thanks to
God, post, at 886–887. Surely if expressions like these from
Washington and his contemporaries were all we had to go
on, there would be a good case that the neutrality principle
has the effect of broadening the ban on establishment beyond
the Framers’ understanding of it (although there would, of
course, still be the question of whether the historical case
could overcome some 60 years of precedent taking neutrality
as its guiding principle).24
24 The dissent also maintains that our precedents show that a solo dis
play of the Commandments is a mere acknowledgment of religion “on par
with the inclusion of a cre` che or a menorah” in a holiday display, or an
official’s speech or prayer, post, at 905. Whether or not our views would
differ about the significance of those practices if we were considering them
as original matters, they manifest no objective of subjecting individual
lives to religious influence comparable to the apparent and openly acknowl
edged purpose behind posting the Commandments. Cre` ches placed with
holiday symbols and prayers by legislators do not insistently call for reli
gious action on the part of citizens; the history of posting the Command

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But the fact is that we do have more to go on, for there is
also evidence supporting the proposition that the Framers
intended the Establishment Clause to require governmental
neutrality in matters of religion, including neutrality in
statements acknowledging religion. The very language of
the Establishment Clause represented a significant depar
ture from early drafts that merely prohibited a single na
tional religion, and the final language instead “extended [the]
prohibition to state support for ‘religion’ in general.” See
Lee v. Weisman, 505 U. S. 577, 614–615 (1992) (Souter, J.,
concurring) (tracing development of language).
The historical record, moreover, is complicated beyond the
dissent’s account by the writings and practices of figures no
less influential than Thomas Jefferson and James Madison.
Jefferson, for example, refused to issue Thanksgiving Procla
mations because he believed that they violated the Constitu
tion. See Letter to S. Miller (Jan. 23, 1808), in 5 The Found
ers’ Constitution, supra, at 98. And Madison, whom the
dissent claims as supporting its thesis, post, at 888, criticized
Virginia’s general assessment tax not just because it re
quired people to donate “three pence” to religion, but be
cause “it is itself a signal of persecution. It degrades from
the equal rank of Citizens all those whose opinions in Reli
gion do not bend to those of the Legislative authority.” 505
U. S., at 622 (internal quotation marks omitted); see also Let
ter from J. Madison to E. Livingston (July 10, 1822), in 5 The
Founders’ Constitution, supra, at 106 (“[R]eligion & Govt.
will both exist in greater purity, the less they are mixed
together”); Letter from J. Madison to J. Adams (Sept. 1833),
in Religion and Politics in the Early Republic 120 (D. Dresi
bach ed. 1996) (stating that with respect to religion and gov
ernment the “tendency to a usurpation on one side, or the
other, or to a corrupting coalition or alliance between them,
will be best guarded against by an entire abstinence of the
ments expressed a purpose to urge citizens to act in prescribed ways as a
personal response to divine authority.

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Government from interference”); Van Orden v. Perry, ante,
at 724–725 (Stevens, J., dissenting).25
The fair inference is that there was no common under
standing about the limits of the establishment prohibition,
and the dissent’s conclusion that its narrower view was the
original understanding, post, at 886–888, stretches the evi
dence beyond tensile capacity. What the evidence does
show is a group of statesmen, like others before and after
them, who proposed a guarantee with contours not wholly
worked out, leaving the Establishment Clause with edges
still to be determined. And none the worse for that. Inde
terminate edges are the kind to have in a constitution meant
to endure, and to meet “exigencies which, if foreseen at all,
must have been seen dimly, and which can be best provided
for as they occur.” McCulloch v. Maryland, 4 Wheat. 316,
415 (1819).
While the dissent fails to show a consistent original under
standing from which to argue that the neutrality principle
should be rejected, it does manage to deliver a surprise. As
mentioned, the dissent says that the deity the Framers had
in mind was the God of monotheism, with the consequence
that government may espouse a tenet of traditional monothe
ism. This is truly a remarkable view. Other Members of
the Court have dissented on the ground that the Establish
ment Clause bars nothing more than governmental prefer
ence for one religion over another, e. g., Wallace, 472 U. S.,
at 98–99 (Rehnquist, J., dissenting), but at least religion has
previously been treated inclusively. Today’s dissent, how
25 The dissent cites material suggesting that separationists like Jefferson
and Madison were not absolutely consistent in abstaining from official reli
gious acknowledgment. Post, at 888. But, a record of inconsistent his
torical practice is too weak a lever to upset decades of precedent adhering
to the neutrality principle. And it is worth noting that Jefferson thought
his actions were consistent with nonendorsement of religion and Madison
regretted any backsliding he may have done. Lee v. Weisman, 505 U. S.
577, 622–625 (1992) (Souter, J., concurring). “Homer nodded.” Id., at
624, n. 5 (corrected in erratum at 535 U. S. ii).

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ever, apparently means that government should be free to
approve the core beliefs of a favored religion over the tenets
of others, a view that should trouble anyone who prizes reli
gious liberty. Certainly history cannot justify it; on the con
trary, history shows that the religion of concern to the Fram
ers was not that of the monotheistic faiths generally, but
Christianity in particular, a fact that no Member of this
Court takes as a premise for construing the Religion
Clauses. Justice Story probably reflected the thinking of
the framing generation when he wrote in his Commentaries
that the purpose of the Clause was “not to countenance,
much less to advance, Mahometanism, or Judaism, or infidel
ity, by prostrating Christianity; but to exclude all rivalry
among Christian sects.” R. Cord, Separation of Church and
State: Historical Fact and Current Fiction 13 (1988) (empha
sis deleted). The Framers would, therefore, almost cer
tainly object to the dissent’s unstated reasoning that because
Christianity was a monotheistic “religion,” monotheism with
Mosaic antecedents should be a touchstone of establishment
interpretation.26 Even on originalist critiques of existing
precedent there is, it seems, no escape from interpretative
consequences that would surprise the Framers. Thus, it ap
pears to be common ground in the interpretation of a Consti
tution “intended to endure for ages to come,” McCulloch v.
26 There might, indeed, even have been some reservations about mono
theism as the paradigm example. It is worth noting that the canonical
biography of George Washington, the dissent’s primary exemplar of the
monotheistic tradition, calls him a deist. J. Flexner, George Washington:
Anguish and Farewell (1793–1799), p. 490 (1972) (“Washington’s religious
belief was that of the enlightenment: deism”). It would have been odd
for the First Congress to propose an Amendment with Religion Clauses
that took no account of the President’s religion. As with other historical
matters pertinent here, however, there are conflicting conclusions. R.
Brookhiser, Founding Father: Rediscovering George Washington 146
(1996) (“Washington’s God was no watchmaker”). History writ small does
not give clear and certain answers to questions about the limits of “reli
gion” or “establishment.”

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Maryland, supra, at 415, that applications unanticipated by
the Framers are inevitable.
Historical evidence thus supports no solid argument for
changing course (whatever force the argument might have
when directed at the existing precedent), whereas public dis
course at the present time certainly raises no doubt about
the value of the interpretative approach invoked for 60 years
now. We are centuries away from the St. Bartholomew’s
Day massacre and the treatment of heretics in early Massa
chusetts, but the divisiveness of religion in current public
life is inescapable. This is no time to deny the prudence
of understanding the Establishment Clause to require the
government to stay neutral on religious belief, which is re
served for the conscience of the individual.
V
Given the ample support for the District Court’s finding of
a predominantly religious purpose behind the Counties’ third
display, we affirm the Sixth Circuit in upholding the prelimi
nary injunction.
It is so ordered.
Justice O’Connor, concurring.
I join in the Court’s opinion. The First Amendment ex
presses our Nation’s fundamental commitment to religious
liberty by means of two provisions—one protecting the free
exercise of religion, the other barring establishment of reli
gion. They were written by the descendents of people who
had come to this land precisely so that they could practice
their religion freely. Together with the other First Amend
ment guarantees—of free speech, a free press, and the rights
to assemble and petition—the Religion Clauses were de
signed to safeguard the freedom of conscience and belief that
those immigrants had sought. They embody an idea that
was once considered radical: Free people are entitled to free

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and diverse thoughts, which government ought neither to
constrain nor to direct.
Reasonable minds can disagree about how to apply the Re
ligion Clauses in a given case. But the goal of the Clauses is
clear: to carry out the Founders’ plan of preserving religious
liberty to the fullest extent possible in a pluralistic society.
By enforcing the Clauses, we have kept religion a matter for
the individual conscience, not for the prosecutor or bureau
crat. At a time when we see around the world the violent
consequences of the assumption of religious authority by
government, Americans may count themselves fortunate:
Our regard for constitutional boundaries has protected us
from similar travails, while allowing private religious exer
cise to flourish. The well-known statement that “[w]e are a
religious people,” Zorach v. Clauson, 343 U. S. 306, 313
(1952), has proved true. Americans attend their places of
worship more often than do citizens of other developed na
tions, R. Fowler, A. Hertzke, & L. Olson, Religion and Poli
tics in America 28–29 (2d ed. 1999), and describe religion as
playing an especially important role in their lives, Pew
Global Attitudes Project, Among Wealthy Nations . . . U. S.
Stands Alone in its Embrace of Religion (Dec. 19, 2002).
Those who would renegotiate the boundaries between church
and state must therefore answer a difficult question: Why
would we trade a system that has served us so well for one
that has served others so poorly?
Our guiding principle has been James Madison’s—that
“[t]he Religion . . . of every man must be left to the conviction
and conscience of every man.” Memorial and Remonstrance
Against Religious Assessments, 2 Writings of James Madi
son 183, 184 (G. Hunt ed. 1901) (hereinafter Memorial). To
that end, we have held that the guarantees of religious free
dom protect citizens from religious incursions by the States
as well as by the Federal Government. Everson v. Board
of Ed. of Ewing, 330 U. S. 1, 16 (1947); Cantwell v. Connecti
cut, 310 U. S. 296 (1940). Government may not coerce a per

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son into worshiping against her will, nor prohibit her from
worshiping according to it. It may not prefer one religion
over another or promote religion over nonbelief. Everson,
supra, at 15–16. It may not entangle itself with religion.
Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 674
(1970). And government may not, by “endorsing religion or
a religious practice,” “mak[e] adherence to religion relevant
to a person’s standing in the political community.” Wallace
v. Jaffree, 472 U. S. 38, 69 (1985) (O’Connor, J., concurring
in judgment).
When we enforce these restrictions, we do so for the same
reason that guided the Framers—respect for religion’s spe
cial role in society. Our Founders conceived of a Republic
receptive to voluntary religious expression, and provided for
the possibility of judicial intervention when government ac
tion threatens or impedes such expression. Voluntary reli
gious belief and expression may be as threatened when gov
ernment takes the mantle of religion upon itself as when
government directly interferes with private religious prac
tices. When the government associates one set of religious
beliefs with the state and identifies nonadherents as out
siders, it encroaches upon the individual’s decision about
whether and how to worship. In the marketplace of ideas,
the government has vast resources and special status. Gov
ernment religious expression therefore risks crowding out
private observance and distorting the natural interplay be
tween competing beliefs. Allowing government to be a po
tential mouthpiece for competing religious ideas risks the
sort of division that might easily spill over into suppression
of rival beliefs. Tying secular and religious authority to
gether poses risks to both.
Given the history of this particular display of the Ten
Commandments, the Court correctly finds an Establishment
Clause violation. See ante, at 867–873. The purpose be
hind the counties’ display is relevant because it conveys an
unmistakable message of endorsement to the reasonable ob

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O’Connor, J., concurring
server. See Lynch v. Donnelly, 465 U. S. 668, 690 (1984)
(O’Connor, J., concurring).
It is true that many Americans find the Commandments
in accord with their personal beliefs. But we do not count
heads before enforcing the First Amendment. See West
Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943)
(“The very purpose of a Bill of Rights was to withdraw cer
tain subjects from the vicissitudes of political controversy,
to place them beyond the reach of majorities and officials
and to establish them as legal principles to be applied by
the courts”). Nor can we accept the theory that Americans
who do not accept the Commandments’ validity are outside
the First Amendment’s protections. There is no list of
approved and disapproved beliefs appended to the First
Amendment—and the Amendment’s broad terms (“free ex
ercise,” “establishment,” “religion”) do not admit of such a
cramped reading. It is true that the Framers lived at a time
when our national religious diversity was neither as robust
nor as well recognized as it is now. They may not have fore
seen the variety of religions for which this Nation would
eventually provide a home. They surely could not have pre
dicted new religions, some of them born in this country.
But they did know that line-drawing between religions is an
enterprise that, once begun, has no logical stopping point.
They worried that “the same authority which can establish
Christianity, in exclusion of all other Religions, may estab
lish with the same ease any particular sect of Christians, in
exclusion of all other Sects.” Memorial 186. The Religion
Clauses, as a result, protect adherents of all religions, as well
as those who believe in no religion at all.
* * *
We owe our First Amendment to a generation with a pro
found commitment to religion and a profound commitment
to religious liberty—visionaries who held their faith “with
enough confidence to believe that what should be rendered

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to God does not need to be decided and collected by Caesar.”
Zorach, 343 U. S., at 324–325 (Jackson, J., dissenting). In
my opinion, the display at issue was an establishment of reli
gion in violation of our Constitution. For the reasons given
above, I join in the Court’s opinion.
Justice Scalia, with whom The Chief Justice and Jus
tice Thomas join, and with whom Justice Kennedy joins
as to Parts II and III, dissenting.
I would uphold McCreary County and Pulaski County,
Kentucky’s (hereinafter Counties) displays of the Ten Com
mandments. I shall discuss, first, why the Court’s oft re
peated assertion that the government cannot favor religious
practice is false; second, why today’s opinion extends the
scope of that falsehood even beyond prior cases; and third,
why even on the basis of the Court’s false assumptions the
judgment here is wrong.
I
A
On September 11, 2001, I was attending in Rome, Italy, an
international conference of judges and lawyers, principally
from Europe and the United States. That night and the
next morning virtually all of the participants watched, in
their hotel rooms, the address to the Nation by the President
of the United States concerning the murderous attacks upon
the Twin Towers and the Pentagon, in which thousands of
Americans had been killed. The address ended, as Presi
dential addresses often do, with the prayer “God bless
America.” The next afternoon I was approached by one of
the judges from a European country, who, after extending
his profound condolences for my country’s loss, sadly ob
served: “How I wish that the Head of State of my country,
at a similar time of national tragedy and distress, could con
clude his address ‘God bless .’ It is of course abso
lutely forbidden.”

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That is one model of the relationship between church and
state—a model spread across Europe by the armies of Napo
leon, and reflected in the Constitution of France, which be
gins, “France is [a] . . . secular . . . Republic.” France Const.,
Art. 1, in 7 Constitutions of the Countries of the World, p. 1
(G. Flanz ed. 2000). Religion is to be strictly excluded from
the public forum. This is not, and never was, the model
adopted by America. George Washington added to the form
of Presidential oath prescribed by Art. II, § 1, cl. 8, of the
Constitution, the concluding words “so help me God.” See
Blomquist, The Presidential Oath, the American National In
terest and a Call for Presiprudence, 73 UMKC L. Rev. 1, 34
(2004). The Supreme Court under John Marshall opened its
sessions with the prayer, “God save the United States and
this Honorable Court.” 1 C. Warren, The Supreme Court in
United States History 469 (rev. ed. 1926) (internal quotation
marks omitted). The First Congress instituted the practice
of beginning its legislative sessions with a prayer. Marsh
v. Chambers, 463 U. S. 783, 787–788 (1983). The same week
that Congress submitted the Establishment Clause as part
of the Bill of Rights for ratification by the States, it enacted
legislation providing for paid chaplains in the House and Sen
ate. Id., at 788. The day after the First Amendment was
proposed, the same Congress that had proposed it requested
the President to proclaim “a day of public thanksgiving and
prayer, to be observed, by acknowledging, with grateful
hearts, the many signal favours of Almighty God.” H. R.
Jour., 1st Cong., 1st Sess., 123 (1826 ed.); see also Sen. Jour.,
1st Sess., 88 (1820 ed.). President Washington offered the
first Thanksgiving Proclamation shortly thereafter, devoting
November 26, 1789, on behalf of the American people “ ‘to
the service of that great and glorious Being who is the be
neficent author of all the good that was, that is, or that will
be,’ ” Van Orden v. Perry, ante, at 687 (plurality opinion)
(quoting President Washington’s first Thanksgiving Procla
mation), thus beginning a tradition of offering gratitude to

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God that continues today. See Wallace v. Jaffree, 472 U. S.
38, 100–103 (1985) (Rehnquist, J., dissenting).1 The same
Congress also reenacted the Northwest Territory Ordinance
of 1787, 1 Stat. 50, Article III of which provided: “Religion,
morality, and knowledge, being necessary to good govern
ment and the happiness of mankind, schools and the means
of education shall forever be encouraged.” Id., at 52, n. (a).
And of course the First Amendment itself accords reli
gion (and no other manner of belief) special constitutional
protection.
These actions of our First President and Congress and the
Marshall Court were not idiosyncratic; they reflected the be
liefs of the period. Those who wrote the Constitution be
lieved that morality was essential to the well-being of society
and that encouragement of religion was the best way to fos
ter morality. The “fact that the Founding Fathers believed
devotedly that there was a God and that the unalienable
rights of man were rooted in Him is clearly evidenced in
their writings, from the Mayflower Compact to the Constitu
tion itself.” School Dist. of Abington Township v. Schempp,
374 U. S. 203, 213 (1963). See Underkuffler-Freund, The
Separation of the Religious and the Secular: A Foundational
Challenge to First-Amendment Theory, 36 Wm. & Mary
L. Rev. 837, 896–918 (1995). President Washington opened
his Presidency with a prayer, see Inaugural Addresses of the
Presidents of the United States 1, 2 (1989), and reminded
his fellow citizens at the conclusion of it that “reason and
experience both forbid us to expect that National morality
can prevail in exclusion of religious principle,” Farewell
Address (1796), reprinted in 35 Writings of George Washing
ton 229 (J. Fitzpatrick ed. 1940). President John Adams
wrote to the Massachusetts Militia, “we have no government
1 See, e. g., President’s Thanksgiving Day 2004 Proclamation (Nov. 23,
2004), available at http://www.whitehouse.gov/news/releases/2004/11/
20041123-4.html (all Internet materials as visited June 24, 2005, and avail
able in Clerk of Court’s case file).

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armed with power capable of contending with human pas
sions unbridled by morality and religion. . . . Our Constitu
tion was made only for a moral and religious people. It is
wholly inadequate to the government of any other.” Letter
(Oct. 11, 1798), reprinted in 9 Works of John Adams 229 (C.
Adams ed. 1971). Thomas Jefferson concluded his second in
augural address by inviting his audience to pray:
“I shall need, too, the favor of that Being in whose hands
we are, who led our fathers, as Israel of old, from their
native land and planted them in a country flowing with
all the necessaries and comforts of life; who has covered
our infancy with His providence and our riper years
with His wisdom and power and to whose goodness I
ask you to join in supplications with me that He will so
enlighten the minds of your servants, guide their coun
cils, and prosper their measures that whatsoever they
do shall result in your good, and shall secure to you
the peace, friendship, and approbation of all nations.”
Inaugural Addresses of the Presidents of the United
States, at 18, 22–23.
James Madison, in his first inaugural address, likewise placed
his confidence “in the guardianship and guidance of that Al
mighty Being whose power regulates the destiny of nations,
whose blessings have been so conspicuously dispensed to this
rising Republic, and to whom we are bound to address
our devout gratitude for the past, as well as our fervent
supplications and best hopes for the future.” Id., at 25, 28.
Nor have the views of our people on this matter signifi
cantly changed. Presidents continue to conclude the Presi
dential oath with the words “so help me God.” Our legisla
tures, state and national, continue to open their sessions with
prayer led by official chaplains. The sessions of this Court
continue to open with the prayer “God save the United
States and this Honorable Court.” Invocation of the Al
mighty by our public figures, at all levels of government,

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remains commonplace. Our coinage bears the motto, “IN
GOD WE TRUST.” And our Pledge of Allegiance contains
the acknowledgment that we are a Nation “under God.” As
one of our Supreme Court opinions rightly observed, “We are
a religious people whose institutions presuppose a Supreme
Being.” Zorach v. Clauson, 343 U. S. 306, 313 (1952), re
peated with approval in Lynch v. Donnelly, 465 U. S. 668,
675 (1984); Marsh, 463 U. S., at 792; Abington Township,
supra, at 213.
With all of this reality (and much more) staring it in the
face, how can the Court possibly assert that the “ ‘First
Amendment mandates governmental neutrality between . . .
religion and nonreligion,’ ” ante, at 860, and that “[m]ani
festing a purpose to favor . . . adherence to religion gener
ally,” ibid., is unconstitutional? Who says so? Surely not
the words of the Constitution. Surely not the history and
traditions that reflect our society’s constant understanding
of those words. Surely not even the current sense of our
society, recently reflected in an Act of Congress adopted
unanimously by the Senate and with only five nays in the
House of Representatives, see 148 Cong. Rec. 12041 (June
28, 2002); id., at 19518 (Oct. 8, 2002), criticizing a Court of
Appeals opinion that had held “under God” in the Pledge
of Allegiance unconstitutional. See Act of Nov. 13, 2002,
§§ 1(9), 2(a), 3(a), 116 Stat. 2057, 2058, 2060–2061 (reaffirming
the Pledge of Allegiance and the National Motto (“In God We
Trust”) and stating that the Pledge of Allegiance is “clearly
consistent with the text and intent of the Constitution”).
Nothing stands behind the Court’s assertion that govern
mental affirmation of the society’s belief in God is unconstitu
tional except the Court’s own say-so, citing as support only
the unsubstantiated say-so of earlier Courts going back no
further than the mid-20th century. See ante, at 860, citing
Corporation of Presiding Bishop of Church of Jesus Christ
of Latter-day Saints v. Amos, 483 U. S. 327, 335 (1987), in
turn citing Lemon v. Kurtzman, 403 U. S. 602, 612 (1971), in

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turn citing Board of Ed. of Central School Dist. No. 1 v.
Allen, 392 U. S. 236, 243 (1968), in turn quoting Abington
Township, 374 U. S., at 222, in turn citing Everson v. Board
of Ed. of Ewing, 330 U. S. 1, 15 (1947).2 And it is, moreover,
a thoroughly discredited say-so. It is discredited, to begin
with, because a majority of the Justices on the current Court
(including at least one Member of today’s majority) have, in
separate opinions, repudiated the brain-spun “Lemon test”
that embodies the supposed principle of neutrality between
religion and irreligion. See Lamb’s Chapel v. Center Mori
ches Union Free School Dist., 508 U. S. 384, 398–399 (1993)
(Scalia, J., concurring in judgment) (collecting criticism of
Lemon); Van Orden, ante, at 692–693, 697 (Thomas, J., con
curring); Board of Ed. of Kiryas Joel Village School Dist. v.
Grumet, 512 U. S. 687, 720 (1994) (O’Connor, J., concurring
in part and concurring in judgment); County of Allegheny v.
American Civil Liberties Union, Greater Pittsburgh Chap
ter, 492 U. S. 573, 655–656, 672–673 (1989) (Kennedy, J., con
curring in judgment in part and dissenting in part); Wallace,
472 U. S., at 112 (Rehnquist, J., dissenting); see also Com
mittee for Public Ed. and Religious Liberty v. Regan, 444
U. S. 646, 671 (1980) (Stevens, J., dissenting) (disparaging
“the sisyphean task of trying to patch together the ‘blurred,
indistinct, and variable barrier’ described in Lemon”). And
it is discredited because the Court has not had the cour
age (or the foolhardiness) to apply the neutrality principle
consistently.
What distinguishes the rule of law from the dictatorship
of a shifting Supreme Court majority is the absolutely indis
2 The fountainhead of this jurisprudence, Everson v. Board of Ed. of
Ewing, based its dictum that “[n]either a state nor the Federal
Government . . . can pass laws which . . . aid all religions,” 330 U. S., at
15, on a review of historical evidence that focused on the debate leading
up to the passage of the Virginia Bill for Religious Liberty, see id., at
11–13. A prominent commentator of the time remarked (after a thorough
review of the evidence himself) that it appeared the Court had been
“sold . . . a bill of goods.” Corwin, The Supreme Court as National School
Board, 14 Law & Contemp. Prob. 3, 16 (1949).

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pensable requirement that judicial opinions be grounded in
consistently applied principle. That is what prevents judges
from ruling now this way, now that—thumbs up or thumbs
down—as their personal preferences dictate. Today’s opin
ion forthrightly (or actually, somewhat less than forthrightly)
admits that it does not rest upon consistently applied princi
ple. In a revealing footnote, ante, at 859–860, n. 10, the
Court acknowledges that the “Establishment Clause doc
trine” it purports to be applying “lacks the comfort of cate
gorical absolutes.” What the Court means by this lovely
euphemism is that sometimes the Court chooses to decide
cases on the principle that government cannot favor religion,
and sometimes it does not. The footnote goes on to say that
“[i]n special instances we have found good reason” to dis
pense with the principle, but “[n]o such reasons present
themselves here.” Ibid. It does not identify all of those
“special instances,” much less identify the “good reason” for
their existence.
I have cataloged elsewhere the variety of circumstances in
which this Court—even after its embrace of Lemon’s stated
prohibition of such behavior—has approved government ac
tion “undertaken with the specific intention of improving the
position of religion,” Edwards v. Aguillard, 482 U. S. 578,
616 (1987) (Scalia, J., dissenting). See id., at 616–618.
Suffice it to say here that when the government relieves
churches from the obligation to pay property taxes, when it
allows students to absent themselves from public school to
take religious classes, and when it exempts religious organi
zations from generally applicable prohibitions of religious
discrimination, it surely means to bestow a benefit on reli
gious practice—but we have approved it. See Amos, supra,
at 338 (exemption from federal prohibition of religious dis
crimination by employers); Walz v. Tax Comm’n of City of
New York, 397 U. S. 664, 673 (1970) (property tax exemption
for church property); Zorach, supra, at 308, 315 (law per
mitting students to leave public school for the purpose of

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receiving religious education). Indeed, we have even ap
proved (post-Lemon) government-led prayer to God. In
Marsh v. Chambers, the Court upheld the Nebraska State
Legislature’s practice of paying a chaplain to lead it in prayer
at the opening of legislative sessions. The Court explained
that “[t]o invoke Divine guidance on a public body entrusted
with making the laws is not . . . an ‘establishment’ of religion
or a step toward establishment; it is simply a tolerable ac
knowledgment of beliefs widely held among the people of
this country.” 463 U. S., at 792. (Why, one wonders, is not
respect for the Ten Commandments a tolerable acknowl
edgment of beliefs widely held among the people of this
country?)
The only “good reason” for ignoring the neutrality princi
ple set forth in any of these cases was the antiquity of the
practice at issue. See id., at 786–792, 794; Walz, supra, at
676–680. That would be a good reason for finding the neu
trality principle a mistaken interpretation of the Constitu
tion, but it is hardly a good reason for letting an unconstitu
tional practice continue. We did not hide behind that reason
in Reynolds v. Sims, 377 U. S. 533 (1964), which found un
constitutional bicameral state legislatures of a sort that had
existed since the beginning of the Republic. And almost
monthly, it seems, the Court has not shrunk from invalidat
ing aspects of criminal procedure and penology of similar
vintage. See, e. g., Deck v. Missouri, 544 U. S. 622, 633
(2005) (invalidating practice of shackling defendants absent
“special circumstances”); id., at 641–645 (Thomas, J., dissent
ing); Roper v. Simmons, 543 U. S. 551, 568 (2005) (invalidat
ing practice of executing under-18-year-old offenders); id.,
at 611, n. 2 (Scalia, J., dissenting). What, then, could be
the genuine “good reason” for occasionally ignoring the neu
trality principle? I suggest it is the instinct for self
preservation, and the recognition that the Court, which “has
no influence over either the sword or the purse,” The Feder
alist No. 78, p. 412 (J. Pole ed. 2005) (A. Hamilton), cannot go

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too far down the road of an enforced neutrality that contra
dicts both historical fact and current practice without losing
all that sustains it: the willingness of the people to accept its
interpretation of the Constitution as definitive, in preference
to the contrary interpretation of the democratically elected
branches.
Besides appealing to the demonstrably false principle that
the government cannot favor religion over irreligion, today’s
opinion suggests that the posting of the Ten Commandments
violates the principle that the government cannot favor one
religion over another. See ante, at 868; see also Van Orden,
ante, at 717–718 (Stevens, J., dissenting). That is indeed a
valid principle where public aid or assistance to religion is
concerned, see Zelman v. Simmons-Harris, 536 U. S. 639,
652 (2002), or where the free exercise of religion is at issue,
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S.
520, 532–533 (1993); id., at 557–558 (Scalia, J., concurring in
part and concurring in judgment), but it necessarily applies
in a more limited sense to public acknowledgment of the Cre
ator. If religion in the public forum had to be entirely non
denominational, there could be no religion in the public
forum at all. One cannot say the word “God,” or “the Al
mighty,” one cannot offer public supplication or thanksgiv
ing, without contradicting the beliefs of some people that
there are many gods, or that God or the gods pay no atten
tion to human affairs. With respect to public acknowledg
ment of religious belief, it is entirely clear from our Nation’s
historical practices that the Establishment Clause permits
this disregard of polytheists and believers in unconcerned
deities, just as it permits the disregard of devout atheists.
The Thanksgiving Proclamation issued by George Washing
ton at the instance of the First Congress was scrupulously
nondenominational—but it was monotheistic.3 In Marsh v.
3 The Court thinks it “surpris[ing]” and “truly . . . remarkable” to be
lieve that “the deity the Framers had in mind” (presumably in all the
instances of invocation of the deity I have cited) “was the God of monothe

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Chambers, supra, we said that the fact the particular pray
ers offered in the Nebraska Legislature were “in the Judeo-
Christian tradition,” id., at 793, posed no additional problem,
because “there is no indication that the prayer opportunity
has been exploited to proselytize or advance any one, or to
disparage any other, faith or belief,” id., at 794–795.
Historical practices thus demonstrate that there is a dis
tance between the acknowledgment of a single Creator and
the establishment of a religion. The former is, as Marsh v.
Chambers put it, “a tolerable acknowledgment of beliefs
widely held among the people of this country.” Id., at 792.
The three most popular religions in the United States, Chris
tianity, Judaism, and Islam—which combined account for
97.7% of all believers—are monotheistic. See U. S. Dept. of
Commerce, Bureau of Census, Statistical Abstract of the
United States: 2004–2005, p. 55 (124th ed. 2004) (Table
No. 67). All of them, moreover (Islam included), believe that
the Ten Commandments were given by God to Moses, and
are divine prescriptions for a virtuous life. See 13 Encyclo
pedia of Religion 9074 (2d ed. 2005); The Qur’an 104 (M. Ha
leem transl. 2004). Publicly honoring the Ten Command
ments is thus indistinguishable, insofar as discriminating
against other religions is concerned, from publicly honoring
God. Both practices are recognized across such a broad and
diverse range of the population—from Christians to Mus
lims—that they cannot be reasonably understood as a gov
ernment endorsement of a particular religious viewpoint.4
ism.” Ante, at 879. This reaction would be more comprehensible if the
Court could suggest what other God (in the singular, and with a capital
G) there is, other than “the God of monotheism.” This is not necessarily
the Christian God (though if it were, one would expect Christ regularly to
be invoked, which He is not); but it is inescapably the God of monotheism.
4 This is not to say that a display of the Ten Commandments could never
constitute an impermissible endorsement of a particular religious view.
The Establishment Clause would prohibit, for example, governmental en
dorsement of a particular version of the Decalogue as authoritative. Here
the display of the Ten Commandments alongside eight secular documents,

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B
A few remarks are necessary in response to the criticism
of this dissent by the Court, as well as Justice Stevens’
criticism in the related case of Van Orden v. Perry, ante,
p. 707. Justice Stevens’ writing is largely devoted to an
attack upon a straw man. “[R]eliance on early religious
proclamations and statements made by the Founders is . . .
problematic,” he says, “because those views were not es
poused at the Constitutional Convention in 1787 nor en
shrined in the Constitution’s text.” Van Orden, ante, at 724
(dissenting opinion) (footnote omitted). But I have not re
lied upon (as he and the Court in this case do) mere “procla
mations and statements” of the Founders. I have relied pri
marily upon official acts and official proclamations of the
United States or of the component branches of its Govern
ment, including the First Congress’s beginning of the tradi
tion of legislative prayer to God, its appointment of congres
sional chaplains, its legislative proposal of a Thanksgiving
Proclamation, and its reenactment of the Northwest Terri
tory Ordinance; our first President’s issuance of a Thanksgiv
ing Proclamation; and invocation of God at the opening of
sessions of the Supreme Court. The only mere “proclama
tions and statements” of the Founders I have relied upon
were statements of Founders who occupied federal office, and
spoke in at least a quasi-official capacity—Washington’s
prayer at the opening of his Presidency and his Farewell
Address, President John Adams’ letter to the Massachusetts
Militia, and Jefferson’s and Madison’s inaugural addresses.
The Court and Justice Stevens, by contrast, appeal to no
official or even quasi-official action in support of their view
of the Establishment Clause—only James Madison’s Memo
rial and Remonstrance Against Religious Assessments, writ
ten before the Federal Constitution had even been proposed,
and the plaque’s explanation for their inclusion, make clear that they were
not posted to take sides in a theological dispute.

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two letters written by Madison long after he was President,
and the quasi-official inaction of Thomas Jefferson in refus
ing to issue a Thanksgiving Proclamation. See ante, at 878–
879; Van Orden, ante, at 724–725 (Stevens, J., dissenting).
The Madison Memorial and Remonstrance, dealing as it does
with enforced contribution to religion rather than public ac
knowledgment of God, is irrelevant; one of the letters is ut
terly ambiguous as to the point at issue here, and should
not be read to contradict Madison’s statements in his first
inaugural address, quoted earlier; even the other letter does
not disapprove public acknowledgment of God, unless one
posits (what Madison’s own actions as President would con
tradict) that reference to God contradicts “the equality of all
religious sects.” See Letter from James Madison to Ed
ward Livingston (July 10, 1822), in 5 The Founders’ Constitu
tion 105–106 (P. Kurland & R. Lerner eds. 1987). And as to
Jefferson: The notoriously self-contradicting Jefferson did
not choose to have his nonauthorship of a Thanksgiving Proc
lamation inscribed on his tombstone. What he did have in
scribed was his authorship of the Virginia Statute for Reli
gious Freedom, a governmental act which begins “Whereas,
Almighty God hath created the mind free . . . .” Va. Code
Ann. § 57–1 (Lexis 2003).
It is no answer for Justice Stevens to say that the un
derstanding that these official and quasi-official actions re
flect was not “enshrined in the Constitution’s text.” Van
Orden, ante, at 724 (dissenting opinion). The Establishment
Clause, upon which Justice Stevens would rely, was en
shrined in the Constitution’s text, and these official actions
show what it meant. There were doubtless some who
thought it should have a broader meaning, but those views
were plainly rejected. Justice Stevens says that reliance
on these actions is “bound to paint a misleading picture,”
ibid., but it is hard to see why. What is more probative of
the meaning of the Establishment Clause than the actions of

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the very Congress that proposed it, and of the first President
charged with observing it?
Justice Stevens also appeals to the undoubted fact that
some in the founding generation thought that the Religion
Clauses of the First Amendment should have a narrower
meaning, protecting only the Christian religion or perhaps
only Protestantism. See Van Orden, ante, at 725–728.
I am at a loss to see how this helps his case, except by pro
viding a cloud of obfuscating smoke. (Since most thought
the Clause permitted government invocation of monotheism,
and some others thought it permitted government invocation
of Christianity, he proposes that it be construed not to per
mit any government invocation of religion at all.) At any
rate, those narrower views of the Establishment Clause were
as clearly rejected as the more expansive ones. Washing
ton’s First Thanksgiving Proclamation is merely an example.
All of the actions of Washington and the First Congress upon
which I have relied, virtually all Thanksgiving Proclama
tions throughout our history,5 and all the other examples of
our Government’s favoring religion that I have cited, have
invoked God, but not Jesus Christ.6 Rather than relying
5 The two exceptions are the March 23, 1798, proclamation of John
Adams, which asks God “freely to remit all our offenses” “through the
Redeemer of the World,” http://www.pilgrimhall.org/ThanxProc1789.htm,
and the November 17, 1972, proclamation of Richard Nixon, which stated,
“From Moses at the Red Sea to Jesus preparing to feed the multitudes,
the Scriptures summon us to words and deeds of gratitude, even before
divine blessings are fully perceived,” Presidential Proclamation No. 4170,
37 Fed. Reg. 24647 (1972).
6 Justice Stevens finds that Presidential inaugural and farewell
speeches (which are the only speeches upon which I have relied) do not
violate the Establishment Clause only because everyone knows that they
express the personal religious views of the speaker, and not government
policy. See Van Orden v. Perry, ante, at 723 (dissenting opinion). This
is a peculiar stance for one who has voted that a student-led invocation at
a high school football game and a rabbi-led invocation at a high school
graduation did constitute the sort of governmental endorsement of reli
gion that the Establishment Clause forbids. See Santa Fe Independent

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upon Justice Stevens’ assurance that “[t]he original under
standing of the type of ‘religion’ that qualified for constitu
tional protection under the Establishment Clause likely did
not include . . . followers of Judaism and Islam,” Van Orden,
ante, at 728; see also ante, at 880, I would prefer to take the
word of George Washington, who, in his famous Letter to
the Hebrew Congregation of Newport, Rhode Island, wrote:
“All possess alike liberty of conscience and immunities
of citizenship. It is now no more that toleration is spo
ken of, as if it was by the indulgence of one class of
people, that another enjoyed the exercise of their inher
ent natural rights.” 6 The Papers of George Washing
ton, Presidential Series 285 (D. Twohig ed. 1996).
The letter concluded, by the way, with an invocation of the
one God:
“May the father of all mercies scatter light and not
darkness in our paths, and make us all in our several
vocations useful here, and in his own due time and way
everlastingly happy.” Ibid.
Justice Stevens says that if one is serious about follow
ing the original understanding of the Establishment Clause,
he must repudiate its incorporation into the Fourteenth
Amendment, and hold that it does not apply against the
States. See Van Orden, ante, at 729–731 (dissenting opin
ion). This is more smoke. Justice Stevens did not feel
that way last Term, when he joined an opinion insisting upon
the original meaning of the Confrontation Clause, but none
theless applying it against the State of Washington. See
Crawford v. Washington, 541 U. S. 36 (2004). The notion
that incorporation empties the incorporated provisions of
their original meaning has no support in either reason or
precedent.
School Dist. v. Doe, 530 U. S. 290 (2000); Lee v. Weisman, 505 U. S. 577
(1992).

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Justice Stevens argues that original meaning should not
be the touchstone anyway, but that we should rather “ex
poun[d] the meaning of constitutional provisions with one
eye toward our Nation’s history and the other fixed on its
democratic aspirations.” Van Orden, ante, at 732 (dis
senting opinion). This is not the place to debate the merits
of the “living Constitution,” though I must observe that Jus
tice Stevens’ quotation from McCulloch v. Maryland, 4
Wheat. 316, 407 (1819), refutes rather than supports that ap
proach.7 Even assuming, however, that the meaning of the
Constitution ought to change according to “democratic aspi
rations,” why are those aspirations to be found in Justices’
notions of what the Establishment Clause ought to mean,
rather than in the democratically adopted dispositions of our
current society? As I have observed above, numerous pro
visions of our laws and numerous continuing practices of our
people demonstrate that the government’s invocation of God
(and hence the government’s invocation of the Ten Com
mandments) is unobjectionable—including a statute enacted
by Congress almost unanimously less than three years ago,
stating that “under God” in the Pledge of Allegiance is con
stitutional, see 116 Stat. 2058. To ignore all this is not to
give effect to “democratic aspirations” but to frustrate them.
Finally, I must respond to Justice Stevens’ assertion
that I would “marginaliz[e] the belief systems of more than
7 million Americans” who adhere to religions that are not
monotheistic. Van Orden, ante, at 719, n. 18 (dissenting
opinion). Surely that is a gross exaggeration. The beliefs
of those citizens are entirely protected by the Free Exercise
Clause, and by those aspects of the Establishment Clause
that do not relate to government acknowledgment of the
Creator. Invocation of God despite their beliefs is per
mitted not because nonmonotheistic religions cease to be
religions recognized by the Religion Clauses of the First
7 See Scalia, Originalism: The Lesser Evil, 57 Cincinnati L. Rev. 849,
852–853 (1989).

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Amendment, but because governmental invocation of God is
not an establishment. Justice Stevens fails to recognize
that in the context of public acknowledgments of God there
are legitimate competing interests: On the one hand, the in
terest of that minority in not feeling “excluded”; but on the
other, the interest of the overwhelming majority of religious
believers in being able to give God thanks and supplication
as a people, and with respect to our national endeavors.
Our national tradition has resolved that conflict in favor of
the majority.8 It is not for this Court to change a disposition
that accounts, many Americans think, for the phenomenon
remarked upon in a quotation attributed to various authors,
including Bismarck, but which I prefer to associate with
Charles de Gaulle: “God watches over little children, drunk
ards, and the United States of America.”
II
As bad as the Lemon test is, it is worse for the fact that,
since its inception, its seemingly simple mandates have been
manipulated to fit whatever result the Court aimed to
achieve. Today’s opinion is no different. In two respects it
modifies Lemon to ratchet up the Court’s hostility to reli
gion. First, the Court justifies inquiry into legislative pur
pose, not as an end itself, but as a means to ascertain the
appearance of the government action to an “ ‘objective ob
server.’ ” Ante, at 862. Because in the Court’s view the
true danger to be guarded against is that the objective ob
server would feel like an “ ‘outside[r]’ ” or “ ‘not [a] full mem
be[r] of the political community,’ ” its inquiry focuses not on
8 Nothing so clearly demonstrates the utter inconsistency of our Estab
lishment Clause jurisprudence as Justice O’Connor’s stirring concur
rence in the present case. “[W]e do not,” she says, “count heads before
enforcing the First Amendment.” Ante, at 884. But Justice O’Connor
joined the opinion of the Court in Marsh v. Chambers, 463 U. S. 783 (1983),
which held legislative prayer to be “a tolerable acknowledgment of beliefs
widely held among the people of this country.” Id., at 792.

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the actual purpose of government action, but the “purpose
apparent from government action.” Ante, at 860. Under
this approach, even if a government could show that its ac
tual purpose was not to advance religion, it would presum
ably violate the Constitution as long as the Court’s objective
observer would think otherwise. See Capitol Square Re
view and Advisory Bd. v. Pinette, 515 U. S. 753, 776–777
(1995) (O’Connor, J., concurring in part and concurring in
judgment) (stating that “when the reasonable observer
would view a government practice as endorsing religion, . . .
it is our duty to hold the practice invalid,” even if the law at
issue was neutral and the benefit conferred on the religious
entity was incidental).
I have remarked before that it is an odd jurisprudence that
bases the unconstitutionality of a government practice that
does not actually advance religion on the hopes of the gov
ernment that it would do so. See Edwards, 482 U. S., at
639. But that oddity pales in comparison to the one invited
by today’s analysis: the legitimacy of a government action
with a wholly secular effect would turn on the misperception
of an imaginary observer that the government officials be
hind the action had the intent to advance religion.
Second, the Court replaces Lemon’s requirement that the
government have “a secular . . . purpose,” 403 U. S., at 612
(emphasis added), with the heightened requirement that the
secular purpose “predominate” over any purpose to advance
religion. Ante, at 864–865. The Court treats this exten
sion as a natural outgrowth of the longstanding requirement
that the government’s secular purpose not be a sham, but
simple logic shows the two to be unrelated. If the govern
ment’s proffered secular purpose is not genuine, then the
government has no secular purpose at all. The new demand
that secular purpose predominate contradicts Lemon’s more
limited requirement, and finds no support in our cases. In
all but one of the five cases in which this Court has invali
dated a government practice on the basis of its purpose to

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benefit religion, it has first declared that the statute was mo
tivated entirely by the desire to advance religion. See
Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 308–
309 (2000) (dismissing the school district’s proffered secular
purposes as shams); Wallace, 472 U. S., at 56 (finding “no
secular purpose” (emphasis in original)); Stone v. Graham,
449 U. S. 39, 41 (1980) (per curiam) (finding that “Kentucky’s
statute requiring the posting of the Ten Commandments in
public school rooms has no secular legislative purpose” (em
phasis added)); Epperson v. Arkansas, 393 U. S. 97, 107–109
(1968). In Edwards, supra, the Court did say that the state
action was invalid because its “primary” or “preeminent”
purpose was to advance a particular religious belief, 482
U. S., at 590, 593, 594, but that statement was unnecessary to
the result, since the Court rejected the State’s only proffered
secular purpose as a sham. See id., at 589.
I have urged that Lemon’s purpose prong be abandoned,
because (as I have discussed in Part I) even an exclusive
purpose to foster or assist religious practice is not necessar
ily invalidating. But today’s extension makes things even
worse. By shifting the focus of Lemon’s purpose prong
from the search for a genuine, secular motivation to the hunt
for a predominantly religious purpose, the Court converts
what has in the past been a fairly limited inquiry into a rigor
ous review of the full record.9 Those responsible for the
9 The Court’s reflexive skepticism of the government’s asserted secular
purposes is flatly inconsistent with the deferential approach taken by our
previous Establishment Clause cases. We have repeated many times
that, where a court undertakes the sensitive task of reviewing a govern
ment’s asserted purpose, it must take the government at its word absent
compelling evidence to the contrary. See, e. g., Edwards v. Aguillard, 482
U. S. 578, 586 (1987) (stating that “the Court is . . . deferential to a State’s
articulation of a secular purpose,” unless that purpose is insincere or a
sham); Mueller v. Allen, 463 U. S. 388, 394–395 (1983) (ascribing the
Court’s disinclination to invalidate government practices under Lemon’s
purpose prong to its “reluctance to attribute unconstitutional motives to
the States, particularly when a plausible secular purpose for the State’s

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adoption of the Religion Clauses would surely regard it as a
bitter irony that the religious values they designed those
Clauses to protect have now become so distasteful to this
Court that if they constitute anything more than a subor
dinate motive for government action they will invalidate it.
III
Even accepting the Court’s Lemon-based premises, the
displays at issue here were constitutional.
A
To any person who happened to walk down the hallway
of the McCreary or Pulaski County Courthouse during the
roughly nine months when the Foundations Displays were
exhibited, the displays must have seemed unremarkable—if
indeed they were noticed at all. The walls of both court
houses were already lined with historical documents and
other assorted portraits; each Foundations Display was ex
hibited in the same format as these other displays and noth
ing in the record suggests that either County took steps to
give it greater prominence.
Entitled “The Foundations of American Law and Govern
ment Display,” each display consisted of nine equally sized
documents: the original version of the Magna Carta, the Dec
laration of Independence, the Bill of Rights, the Star Span
gled Banner, the Mayflower Compact of 1620, a picture of
Lady Justice, the National Motto of the United States (“In
God We Trust”), the Preamble to the Kentucky Constitution,
and the Ten Commandments. The displays did not empha
size any of the nine documents in any way: The frame holding
the Ten Commandments was of the same size and had the
program may be discerned from the face of the statute”); see also Wallace
v. Jaffree, 472 U. S. 38, 74 (1985) (O’Connor, J., concurring in judgment)
(“[T]he inquiry into the purpose of the legislature . . . should be deferential
and limited”).

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same appearance as that which held each of the other docu
ments. See 354 F. 3d 438, 443 (CA6 2003).
Posted with the documents was a plaque, identifying the
display, and explaining that it “ ‘contains documents that
played a significant role in the foundation of our system of
law and government.’ ” Ibid. The explanation related to
the Ten Commandments was third in the list of nine and did
not serve to distinguish it from the other documents. It
stated:
“ ‘The Ten Commandments have profoundly influenced
the formation of Western legal thought and the forma
tion of our country. That influence is clearly seen in the
Declaration of Independence, which declared that, “We
hold these truths to be self-evident, that all men are cre
ated equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life,
Liberty, and the pursuit of Happiness.” The Ten Com
mandments provide the moral background of the Decla
ration of Independence and the foundation of our legal
tradition.’ ” Ibid.
B
On its face, the Foundations Displays manifested the
purely secular purpose that the Counties asserted before the
District Court: “to display documents that played a signifi
cant role in the foundation of our system of law and govern
ment.” Affidavit of Judge Jimmie Green in Support of De
fendants’ Opposition to Plaintiffs’ Motion for Contempt or, in
the Alternative, for Supplemental Preliminary Injunction in
Civ. Action No. 99–507 (ED Ky.), p. 2, ¶4, App. 57. That the
displays included the Ten Commandments did not transform
their apparent secular purpose into one of impermissible ad
vocacy for Judeo-Christian beliefs. Even an isolated display
of the Decalogue conveys, at worst, “an equivocal message,
perhaps of respect for Judaism, for religion in general, or
for law.” Allegheny County, 492 U. S., at 652 (Stevens, J.,

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concurring in part and dissenting in part). But when the
Ten Commandments appear alongside other documents of
secular significance in a display devoted to the foundations
of American law and government, the context communicates
that the Ten Commandments are included, not to teach their
binding nature as a religious text, but to show their unique
contribution to the development of the legal system. See
id., at 652–653. This is doubly true when the display is in
troduced by a document that informs passersby that it “ ‘con
tains documents that played a significant role in the founda
tion of our system of law and government.’ ” 354 F. 3d, at
443.
The same result follows if the Ten Commandments display
is viewed in light of the government practices that this Court
has countenanced in the past. The acknowledgment of the
contribution that religion in general, and the Ten Command
ments in particular, have made to our Nation’s legal and gov
ernmental heritage is surely no more of a step toward estab
lishment of religion than was the practice of legislative
prayer we approved in Marsh v. Chambers, 463 U. S. 783
(1983), and it seems to be on par with the inclusion of a
cre` che or a menorah in a “Holiday” display that incorporates
other secular symbols, see Lynch v. Donnelly, 465 U. S., at
679–680; Allegheny County, supra, at 621 (Blackmun, J., con
curring in part and dissenting in part). The parallels be
tween this case and Marsh and Lynch are sufficiently com
pelling that they ought to decide this case, even under the
Court’s misguided Establishment Clause jurisprudence.10
10 The Court’s only response is that the inclusion of the Ten Command
ments in a display about the foundations of American law reflects
“a purpose to [call on] citizens to act in prescribed ways as a personal
response to divine authority,” in a way that legislative prayer and the
inclusion of a cre` che in a holiday display do not. See ante, at 878, n. 24.
That might be true if the Commandments were displayed by themselves
in a church, or even in someone’s home. It seems to me patently untrue—
given the Decalogue’s “undeniable historical meaning” as a symbol of the
religious foundations of law, see Van Orden, ante, at 690 (plurality opin

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Acknowledgment of the contribution that religion has
made to our Nation’s legal and governmental heritage par
takes of a centuries-old tradition. Members of this Court
have themselves often detailed the degree to which religious
belief pervaded the National Government during the found
ing era. See Lynch, supra, at 674–678; Marsh, supra, at
786–788; Lee v. Weisman, 505 U. S. 577, 633–636 (1992)
(Scalia, J., dissenting); Wallace, 472 U. S., at 100–106
(Rehnquist, J., dissenting); Engel v. Vitale, 370 U. S. 421,
446–450, and n. 3 (1962) (Stewart, J., dissenting). Display of
the Ten Commandments is well within the mainstream of
this practice of acknowledgment. Federal, state, and local
governments across the Nation have engaged in such dis
play.11 The Supreme Court Building itself includes depic
tions of Moses with the Ten Commandments in the Court
room and on the east pediment of the building, and symbols
of the Ten Commandments “adorn the metal gates lining the
north and south sides of the Courtroom as well as the doors
leading into the Courtroom.” Van Orden, ante, at 688 (plu
rality opinion). Similar depictions of the Decalogue appear
ion)—when they are posted in a courthouse display of historical docu
ments. The observer would no more think himself “called upon to act” in
conformance with the Commandments than he would think himself called
upon to think and act like William Bradford because of the courthouse
posting of the Mayflower Compact—especially when he is told that the
exhibit consists of documents that contributed to American law and
government.
11 The significant number of cases involving Ten Commandments dis
plays in the last two years suggests the breadth of their appearance. See,
e. g., Books v. Elkhart County, 401 F. 3d 857, 858–859 (CA7 2005) (Ten
Commandments included in a display identical to the Foundations Dis
play); Mercier v. Fraternal Order of Eagles, 395 F. 3d 693, 696 (CA7 2005)
(Ten Commandments monument in city park since 1965); Modrovich v.
Allegheny County, 385 F. 3d 397, 399 (CA3 2004) (Ten Commandments
plaque, donated in 1918, on wall of Allegheny County Courthouse); Free
thought Soc. of Greater Philadelphia v. Chester County, 334 F. 3d 247, 249
(CA3 2003) (Ten Commandments plaque, donated in 1920, on wall of Ches
ter County Courthouse); King v. Richmond County, 331 F. 3d 1271, 1273–
1274 (CA11 2003) (Ten Commandments depicted in county seal since 1872).

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on public buildings and monuments throughout our Nation’s
Capital. Ante, at 689. The frequency of these displays tes
tifies to the popular understanding that the Ten Command
ments are a foundation of the rule of law, and a symbol of
the role that religion played, and continues to play, in our
system of government.
Perhaps in recognition of the centrality of the Ten Com
mandments as a widely recognized symbol of religion in pub
lic life, the Court is at pains to dispel the impression that
its decision will require governments across the country to
sandblast the Ten Commandments from the public square.
See ante, at 874. The constitutional problem, the Court
says, is with the Counties’ purpose in erecting the Founda
tions Displays, not the displays themselves. The Court adds
in a footnote: “One consequence of taking account of the pur
pose underlying past actions is that the same government
action may be constitutional if taken in the first instance and
unconstitutional if it has a sectarian heritage.” Ante, at
866, n. 14.
This inconsistency may be explicable in theory, but I sus
pect that the “objective observer” with whom the Court is
so concerned will recognize its absurdity in practice. By
virtue of details familiar only to the parties to litigation and
their lawyers, McCreary and Pulaski Counties, Kentucky,
and Rutherford County, Tennessee, have been ordered to re
move the same display that appears in courthouses from
Mercer County, Kentucky, to Elkhart County, Indiana.
Compare American Civil Liberties Union of Tenn. v. Ruth
erford County, 209 F. Supp. 2d 799, 808–809 (MD Tenn. 2002)
(holding Foundations Display to be unconstitutional based on
prior actions of county commission), with Books v. Elkhart
County, 401 F. 3d 857, 869 (CA7 2005) (sustaining Founda
tions Display as “secular . . . in its purpose and effect”);
American Civil Liberties Union of Ky. v. Mercer County,
219 F. Supp. 2d 777, 787–789 (ED Ky. 2002) (rejecting Estab
lishment Clause challenge to an identical Foundations Dis
play and distinguishing McCreary County on the ground

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that the County’s purpose had not been “tainted with any
prior history”). Displays erected in silence (and under the
direction of good legal advice) are permissible, while those
hung after discussion and debate are deemed unconstitu
tional. Reduction of the Establishment Clause to such mi
nutiae trivializes the Clause’s protection against religious es
tablishment; indeed, it may inflame religious passions by
making the passing comments of every government official
the subject of endless litigation.
C
In any event, the Court’s conclusion that the Counties ex
hibited the Foundations Displays with the purpose of pro
moting religion is doubtful. In the Court’s view, the imper
missible motive was apparent from the initial displays of the
Ten Commandments all by themselves: When that occurs,
the Court says, “a religious object is unmistakable.” Ante,
at 869. Surely that cannot be. If, as discussed above, the
Commandments have a proper place in our civic history, even
placing them by themselves can be civically motivated—es
pecially when they are placed, not in a school (as they were
in the Stone case upon which the Court places such reliance),
but in a courthouse. Cf. Van Orden, ante, at 701 (Breyer,
J., concurring in judgment) (“The circumstances surrounding
the display’s placement on the capitol grounds and its physi
cal setting suggest that the State itself intended the . . .
nonreligious aspects of the tablets’ message to predomi
nate”). And the fact that at the posting of the exhibit a
clergyman was present is unremarkable (clergymen taking
particular pride in the role of the Ten Commandments in our
civic history); and even more unremarkable the fact that the
clergyman “testified to the certainty of the existence of
God,” ante, at 869.
The Court has in the past prohibited government actions
that “proselytize or advance any one, or . . . disparage any
other, faith or belief,” Marsh, 463 U. S., at 794–795, or that
apply some level of coercion (though I and others have dis

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agreed about the form that coercion must take), see, e. g., Lee
v. Weisman, 505 U. S., at 592 (prayer at high-school gradua
tion invalid because of “subtle coercive pressure”); id., at 642
(Scalia, J., dissenting). The passive display of the Ten
Commandments, even standing alone, does not begin to do
either. What Justice Kennedy said of the cre` che in Alle
gheny County is equally true of the Counties’ original Ten
Commandments displays:
“No one was compelled to observe or participate in any
religious ceremony or activity. [T]he count[ies] [did
not] contribut[e] significant amounts of tax money to
serve the cause of one religious faith. [The Ten Com
mandments] are purely passive symbols of [the religious
foundation for many of our laws and governmental insti
tutions]. Passersby who disagree with the message
conveyed by th[e] displays are free to ignore them, or
even to turn their backs, just as they are free to do when
they disagree with any other form of government
speech.” 492 U. S., at 664 (opinion concurring in judg
ment in part and dissenting in part).
Nor is it the case that a solo display of the Ten Command
ments advances any one faith. They are assuredly a reli
gious symbol, but they are not so closely associated with a
single religious belief that their display can reasonably be
understood as preferring one religious sect over another.
The Ten Commandments are recognized by Judaism, Chris
tianity, and Islam alike as divinely given. See 13 Encyclope
dia of Religion 9074 (2d ed. 2005).12
12 Because there are interpretational differences between faiths and
within faiths concerning the meaning and perhaps even the text of the
Commandments, Justice Stevens maintains that any display of the text
of the Ten Commandments is impermissible because it “invariably places
the [government] at the center of a serious sectarian dispute.” Van
Orden, ante, at 718–719 (dissenting opinion). I think not. The sectarian
dispute regarding text, if serious, is not widely known. I doubt that most
religious adherents are even aware that there are competing versions with
doctrinal consequences (I certainly was not). In any event, the context

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910 McCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Scalia, J., dissenting
The Court also points to the Counties’ second displays,
which featured a number of statements in historical docu
ments reflecting a religious influence, and the resolutions
that accompanied their erection, as evidence of an impermis
sible religious purpose.13 In the Court’s view, “[t]he [second]
display’s unstinting focus . . . on religious passages, show[s]
that the Counties were posting the Commandments precisely
because of their sectarian content.” Ante, at 870. No, all
it necessarily shows is that the exhibit was meant to focus
upon the historic role of religious belief in our national life—
which is entirely permissible. And the same can be said of
the resolution. To forbid any government focus upon this
aspect of our history is to display what Justice Goldberg
called “untutored devotion to the concept of neutrality,” Ab
ington Township, 374 U. S., at 306 (concurring opinion), that
would commit the Court (and the Nation) to a revisionist
agenda of secularization.
of the display here could not conceivably cause the viewer to believe that
the government was taking sides in a doctrinal controversy.
13 Posted less than a month after respondents filed suit, the second dis
plays included an excerpt from the Declaration of Independence, the Pre
amble to the Kentucky Constitution, a page from the Congressional Rec
ord declaring 1983 to be the Year of the Bible and the proclamation of
President Reagan stating the same, a proclamation of President Lincoln
designating April 30, 1863, as a National Day of Prayer and Humiliation,
an excerpt from Lincoln’s “Reply to Loyal Colored People of Baltimore
upon Presentation of a Bible” stating that “[t]he Bible is the best gift God
has ever given to man,” and the Mayflower Compact. 96 F. Supp. 2d
679, 684 (ED Ky. 2000) (internal quotation marks omitted). The Counties
erected the displays in accordance with a resolution passed by their legis
lative bodies, authorizing the County-Judge Executives “to read or post
the Ten Commandments as the precedent legal code upon which the civil
and criminal codes of the Commonwealth of Kentucky are founded,” and
to display alongside the Ten Commandments copies of the documents
listed above “without censorship because of any Christian or religious ref
erences in these writings, documents, and historical records.” Def. Exh.
1 in Memorandum in Support of Defendants’ Motion to Dismiss in Civ.
Action No. 99–507, p. 1 (ED Ky.) (hereinafter Def. Exh. 1).

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Cite as: 545 U. S. 844 (2005)
Scalia, J., dissenting
Turning at last to the displays actually at issue in this case,
the Court faults the Counties for not repealing the resolution
expressing what the Court believes to be an impermissible
intent. Under these circumstances, the Court says, “[n]o
reasonable observer could swallow the claim that the Coun
ties had cast off the objective so unmistakable in the earlier
displays.” Ante, at 872. Even were I to accept all that the
Court has said before, I would not agree with that assess
ment. To begin with, of course, it is unlikely that a reason
able observer would even have been aware of the resolutions,
so there would be nothing to “cast off.” The Court implies
that the Counties may have been able to remedy the “taint”
from the old resolutions by enacting a new one. See ante,
at 871–872. But that action would have been wholly unnec
essary in light of the explanation that the Counties included
with the displays themselves: A plaque next to the docu
ments informed all who passed by that each display “contains
documents that played a significant role in the foundation of
our system of law and government.” Additionally, there
was no reason for the Counties to repeal or repudiate the
resolutions adopted with the hanging of the second displays,
since they related only to the second displays. After com
plying with the District Court’s order to remove the second
displays “immediately,” and erecting new displays that in
content and by express assertion reflected a different pur
pose from that identified in the resolutions, the Counties had
no reason to believe that their previous resolutions would be
deemed to be the basis for their actions.14 After the Coun
14 Contrary to the Court’s suggestion, see ante, at 872, n. 20, it is clear
that the resolutions were closely tied to the second displays, but not to
the third. Each of the documents included in the second displays was
authorized by the resolutions, and those displays, consistent with the reso
lutions’ direction to “post the Ten Commandments as the precedent legal
code upon which the civil and criminal codes of the Commonwealth of
Kentucky are founded,” Def. Exh. 1, supra, n. 13, at 1, consisted of a large
copy of the Ten Commandments alongside much smaller framed copies
of other historical, religious documents. The third displays, in contrast,

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912 McCREARY COUNTY v. AMERICAN CIVIL LIBERTIES
UNION OF KY.
Scalia, J., dissenting
ties discovered that the sentiments expressed in the resolu
tions could be attributed to their most recent displays (in
oral argument before this Court), they repudiated them
immediately.
In sum: The first displays did not necessarily evidence an
intent to further religious practice; nor did the second dis
plays, or the resolutions authorizing them; and there is in
any event no basis for attributing whatever intent motivated
the first and second displays to the third. Given the pre
sumption of regularity that always accompanies our review
of official action, see n. 9, supra, the Court has identified no
evidence of a purpose to advance religion in a way that is
inconsistent with our cases. The Court may well be correct
in identifying the third displays as the fruit of a desire to
display the Ten Commandments, ante, at 872, but neither our
cases nor our history support its assertion that such a desire
renders the fruit poisonous.
* * *
For the foregoing reasons, I would reverse the judgment
of the Court of Appeals.
included documents not mentioned in the resolutions (the Magna Carta
and a picture of Lady Justice) and did not include documents authorized
by the resolutions (correspondence and proclamations of Abraham Lincoln
and the Resolution of Congress declaring 1983 to be the Year of the Bible).
The resolutions also provided that they were to be posted beside the
displays that they authorized. Id., at 9. Yet respondents have never
suggested the resolutions were posted next to the third displays, and the
record before the Court indicates that they were not. The photos in
cluded in the Appendix show that the third displays included 10 frames—
the nine historical documents and the prefatory statement explaining the
relevance of each of the documents. See App. to Pet. for Cert. 177a (Mc-
Creary County), 178a (Pulaski County).

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OCTOBER TERM, 2004
Syllabus
METRO-GOLDWYN-MAYER STUDIOS INC. et al. v.
GROKSTER, LTD., et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 04–480. Argued March 29, 2005—Decided June 27, 2005
Respondent companies distribute free software that allows computer
users to share electronic files through peer-to-peer networks, so called
because the computers communicate directly with each other, not
through central servers. Although such networks can be used to share
any type of digital file, recipients of respondents’ software have mostly
used them to share copyrighted music and video files without authoriza
tion. Seeking damages and an injunction, a group of movie studios and
other copyright holders (hereinafter MGM) sued respondents for their
users’ copyright infringements, alleging that respondents knowingly
and intentionally distributed their software to enable users to infringe
copyrighted works in violation of the Copyright Act.
Discovery revealed that billions of files are shared across peer-to-peer
networks each month. Respondents are aware that users employ their
software primarily to download copyrighted files, although the decen
tralized networks do not reveal which files are copied, and when. Re
spondents have sometimes learned about the infringement directly
when users have e-mailed questions regarding copyrighted works, and
respondents have replied with guidance. Respondents are not merely
passive recipients of information about infringement. The record is re
plete with evidence that when they began to distribute their free soft
ware, each of them clearly voiced the objective that recipients use the
software to download copyrighted works and took active steps to en
courage infringement. After the notorious file-sharing service, Nap
ster, was sued by copyright holders for facilitating copyright infringe
ment, both respondents promoted and marketed themselves as Napster
alternatives. They receive no revenue from users, but, instead, gener
ate income by selling advertising space, then streaming the advertising
to their users. As the number of users increases, advertising opportu
nities are worth more. There is no evidence that either respondent
made an effort to filter copyrighted material from users’ downloads or
otherwise to impede the sharing of copyrighted files.
While acknowledging that respondents’ users had directly infringed
MGM’s copyrights, the District Court nonetheless granted respondents
summary judgment as to liability arising from distribution of their soft

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METRO-GOLDWYN-MAYER STUDIOS INC. v.
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Syllabus
ware. The Ninth Circuit affirmed. It read Sony Corp. of America v.
Universal City Studios, Inc., 464 U. S. 417, as holding that the distribu
tion of a commercial product capable of substantial noninfringing uses
could not give rise to contributory liability for infringement unless the
distributor had actual knowledge of specific instances of infringement
and failed to act on that knowledge. Because the appeals court found
respondents’ software to be capable of substantial noninfringing uses
and because respondents had no actual knowledge of infringement
owing to the software’s decentralized architecture, the court held that
they were not liable. It also held that they did not materially contrib
ute to their users’ infringement because the users themselves searched
for, retrieved, and stored the infringing files, with no involvement by
respondents beyond providing the software in the first place. Finally,
the court held that respondents could not be held liable under a vicari
ous infringement theory because they did not monitor or control the
software’s use, had no agreed-upon right or current ability to supervise
its use, and had no independent duty to police infringement.
Held: One who distributes a device with the object of promoting its use
to infringe copyright, as shown by clear expression or other affirmative
steps taken to foster infringement, going beyond mere distribution with
knowledge of third-party action, is liable for the resulting acts of in
fringement by third parties using the device, regardless of the device’s
lawful uses. Pp. 928–941.
(a) The tension between the competing values of supporting creativ
ity through copyright protection and promoting technological innovation
by limiting infringement liability is the subject of this case. Despite
offsetting considerations, the argument for imposing indirect liability
here is powerful, given the number of infringing downloads that occur
daily using respondents’ software. When a widely shared product is
used to commit infringement, it may be impossible to enforce rights in
the protected work effectively against all direct infringers, so that the
only practical alternative is to go against the device’s distributor for
secondary liability on a theory of contributory or vicarious infringement.
One infringes contributorily by intentionally inducing or encouraging
direct infringement, and infringes vicariously by profiting from direct
infringement while declining to exercise the right to stop or limit it.
Although “[t]he Copyright Act does not expressly render anyone liable
for [another’s] infringement,” Sony, 464 U. S., at 434, these secondary
liability doctrines emerged from common law principles and are well
established in the law, e. g., id., at 486. Pp. 928–931.
(b) Sony addressed a claim that secondary liability for infringement
can arise from the very distribution of a commercial product. There,

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Cite as: 545 U. S. 913 (2005)
Syllabus
copyright holders sued Sony, the manufacturer of videocassette record
ers, claiming that it was contributorily liable for the infringement that
occurred when VCR owners taped copyrighted programs. The evi
dence showed that the VCR’s principal use was “time-shifting,” i. e.,
taping a program for later viewing at a more convenient time, which
the Court found to be a fair, noninfringing use. 464 U. S., at 423–424.
Moreover, there was no evidence that Sony had desired to bring about
taping in violation of copyright or taken active steps to increase its
profits from unlawful taping. Id., at 438. On those facts, the only con
ceivable basis for liability was on a theory of contributory infringement
through distribution of a product. Id., at 439. Because the VCR was
“capable of commercially significant noninfringing uses,” the Court held
that Sony was not liable. Id., at 442. This theory reflected patent
law’s traditional staple article of commerce doctrine that distribution of
a component of a patented device will not violate the patent if it is
suitable for use in other ways. 35 U. S. C. § 271(c). The doctrine ab
solves the equivocal conduct of selling an item with lawful and unlawful
uses and limits liability to instances of more acute fault. In this case,
the Ninth Circuit misread Sony to mean that when a product is capable
of substantial lawful use, the producer cannot be held contributorily lia
ble for third parties’ infringing use of it, even when an actual purpose
to cause infringing use is shown, unless the distributors had specific
knowledge of infringement at a time when they contributed to the in
fringement and failed to act upon that information. Sony did not dis
place other secondary liability theories. Pp. 931–934.
(c) Nothing in Sony requires courts to ignore evidence of intent to
promote infringement if such evidence exists. It was never meant to
foreclose rules of fault-based liability derived from the common law.
464 U. S., at 439. Where evidence goes beyond a product’s characteris
tics or the knowledge that it may be put to infringing uses, and shows
statements or actions directed to promoting infringement, Sony’s
staple-article rule will not preclude liability. At common law a copy
right or patent defendant who “not only expected but invoked [infring
ing use] by advertisement” was liable for infringement. Kalem Co. v.
Harper Brothers, 222 U. S. 55, 62–63. The rule on inducement of in
fringement as developed in the early cases is no different today. Evi
dence of active steps taken to encourage direct infringement, such as
advertising an infringing use or instructing how to engage in an infring
ing use, shows an affirmative intent that the product be used to infringe,
and overcomes the law’s reluctance to find liability when a defendant
merely sells a commercial product suitable for some lawful use. A rule
that premises liability on purposeful, culpable expression and conduct

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METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
Syllabus
does nothing to compromise legitimate commerce or discourage innova
tion having a lawful promise. Pp. 934–937.
(d) On the record presented, respondents’ unlawful objective is un
mistakable. The classic instance of inducement is by advertisement or
solicitation that broadcasts a message designed to stimulate others to
commit violations. MGM argues persuasively that such a message is
shown here. Three features of the evidence of intent are particularly
notable. First, each of the respondents showed itself to be aiming to
satisfy a known source of demand for copyright infringement, the mar
ket comprising former Napster users. Respondents’ efforts to supply
services to former Napster users indicate a principal, if not exclusive,
intent to bring about infringement. Second, neither respondent at
tempted to develop filtering tools or other mechanisms to diminish the
infringing activity using their software. While the Ninth Circuit
treated that failure as irrelevant because respondents lacked an inde
pendent duty to monitor their users’ activity, this evidence underscores
their intentional facilitation of their users’ infringement. Third, re
spondents make money by selling advertising space, then by directing
ads to the screens of computers employing their software. The more
their software is used, the more ads are sent out and the greater the
advertising revenue. Since the extent of the software’s use determines
the gain to the distributors, the commercial sense of their enterprise
turns on high-volume use, which the record shows is infringing. This
evidence alone would not justify an inference of unlawful intent, but its
import is clear in the entire record’s context. Pp. 937–940.
(e) In addition to intent to bring about infringement and distribution
of a device suitable for infringing use, the inducement theory requires
evidence of actual infringement by recipients of the device, the software
in this case. There is evidence of such infringement on a gigantic scale.
Because substantial evidence supports MGM on all elements, summary
judgment for respondents was error. On remand, reconsideration of
MGM’s summary judgment motion will be in order. Pp. 940–941.
380 F. 3d 1154, vacated and remanded.
Souter, J., delivered the opinion for a unanimous Court. Ginsburg,
J., filed a concurring opinion, in which Rehnquist, C. J., and Kennedy, J.,
joined, post, p. 942. Breyer, J., filed a concurring opinion, in which Ste
vens and O’Connor, JJ., joined, post, p. 949.
Donald B. Verrilli, Jr., argued the cause for petitioners.
With him on the briefs for the motion picture studio and
recording company petitioners were Ian Heath Gershengorn,

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Cite as: 545 U. S. 913 (2005)
Counsel
William M. Hohengarten, Steven B. Fabrizio, Thomas J.
Perrelli, Matthew J. Oppenheim, David E. Kendall, Thomas
G. Hentoff, Kenneth W. Starr, Russell J. Frackman, George
M. Borkowski, Robert M. Schwartz, Gregory P. Goeckner,
Dean C. Garfield, Elaine J. Goldenberg, Matthew Hersh, Ste
ven M. Marks, and Stanley Pierre-Louis. Carey R. Ramos,
Peter L. Felcher, Aidan Synnott, Theodore K. Cheng, Kelli
L. Sager, Andrew J. Thomas, Jeffrey H. Blum, and Jeffrey
L. Fisher filed briefs for the songwriter and music pub
lisher petitioners.
Acting Solicitor General Clement argued the cause for
the United States as amicus curiae urging reversal. With
him on the brief were Assistant Attorney General Keisler,
Deputy Solicitor General Hungar, Douglas H. Hallward-
Driemeier, Anthony A. Yang, David O. Carson, and John
M. Whealan.
Richard G. Taranto argued the cause for respondents.
With him on the brief were H. Bartow Farr III, Cindy A.
Cohn, Fred Von Lohmann, Michael H. Page, Mark A. Lem
ley, Charles S. Baker, and Matthew A. Neco.*
*Briefs of amici curiae urging reversal were filed for the State of Utah
et al. by Mark Shurtleff, Attorney General of Utah, and by the Attorneys
General for their respective jurisdictions as follows: Troy King of Ala
bama, Gregg Renkes of Alaska, Terry Goddard of Arizona, Mike Beebe of
Arkansas, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida,
Thurbert E. Baker of Georgia, Douglas B. Moylan of Guam, Mark J. Ben
nett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois,
Steve Carter of Indiana, Phill Kline of Kansas, Gregory D. Stumbo of
Kentucky, Charles C. Foti, Jr., of Louisiana, Thomas F. Reilly of Massa
chusetts, Michael A. Cox of Michigan, Mike Hatch of Minnesota, Jim Hood
of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of
Montana, Jon Bruning of Nebraska, Brian Sandoval of Nevada, Peter C.
Harvey of New Jersey, Patricia A. Madrid of New Mexico, Roy Cooper
of North Carolina, Wayne Stenehjem of North Dakota, Jim Petro of Ohio,
W. A. Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsyl
vania, Patrick Lynch of Rhode Island, Henry McMaster of South Carolina,
Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Greg
Abbott of Texas, William H. Sorrell of Vermont, Jerry Kilgore of Virginia,

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METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
Opinion of the Court
Justice Souter delivered the opinion of the Court.
The question is under what circumstances the distributor
of a product capable of both lawful and unlawful use is liable
Darrell V. McGraw, Jr., of West Virginia, and Peg Lautenschlager of Wis
consin; for the American Federation of Musicians of the United States and
Canada et al. by George H. Cohen, Patricia Polach, and Laurence Gold;
for the American Society of Composers, Authors and Publishers et al. by
I. Fred Koenigsberg, Michael E. Salzman, and Marvin L. Berenson; for
Americans for Tax Reform by Carter G. Phillips, Alan Charles Raul, Jay
T. Jorgensen, and Eric A. Shumsky; for the Commissioner of Baseball
et al. by Robert Alan Garrett and Hadrian R. Katz; for Defenders of
Property Rights by Theodore B. Olson, Thomas H. Dupree, Jr., Matthew
D. McGill, Nancie G. Marzulla, and Roger Marzulla; for International
Rights Owners by Christopher Wolf; for Kids First Coalition et al. by
Viet D. Dinh; for Law Professors et al. by James Gibson; for Macrovision
Corp. by Geoffrey L. Beauchamp, Kelly G. Huller, and James H. Salter;
for Napster, LLC, et al. by Barry I. Slotnick; for the National Academy
of Recording Arts & Sciences, Inc., et al. by Jon A. Baumgarten and Jay
L. Cooper; for the National Association of Broadcasters by Marsha J. Mac-
Bride, Jane E. Mago, Benjamin F. P. Ivins, and Jerianne Timmerman;
for the National Association of Recording Merchandisers by Alan R. Ma
lasky and Melanie Martin-Jones; for the Progress & Freedom Foundation
by James V. DeLong; for the Video Software Dealers Association by John
T. Mitchell; and for Professor Peter S. Menell et al. by Mr. Menell, pro se.
Briefs of amici curiae urging affirmance were filed for Altnet, Inc., by
Roderick G. Dorman; for the American Civil Liberties Union et al. by
Christopher A. Hansen, Steven R. Shapiro, Sharon M. McGowan, Ann
Brick, and Jordan C. Budd; for the American Conservative Union et al.
by David Post; for the Cellular Telecommunications & Internet Associa
tion et al. by Andrew G. McBride, Joshua S. Turner, Michael Altschul,
James W. Olson, Frank L. Politano, Laura Kaster, Jeffrey A. Rackow,
Grier C. Raclin, Michael Standard, John Thorne, Sarah B. Deutsch, and
Paul J. Larkin, Jr.; for the Consumer Electronics Association et al. by
Bruce G. Joseph and Scott E. Bain; for the Consumer Federation of
America et al. by Peter Jaszi; for the Distributed Computing Industry
Association by Mr. Dorman; for the Eagle Forum Education & Legal De
fense Fund by Andrew L. Schlafly and Karen B. Tripp; for the Free Soft
ware Foundation et al. by Eben Moglen; for Intel Corp. by James M.
Burger and Jonathan D. Hart; for Internet Law Faculty by William W.
Fisher III and Jonathan Zittrain; for Law Professors by J. Glynn Lun
ney, Jr.; for the National Association of Shareholder and Consumer Attor

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Opinion of the Court
for acts of copyright infringement by third parties using the
product. We hold that one who distributes a device with the
object of promoting its use to infringe copyright, as shown by
clear expression or other affirmative steps taken to foster
infringement, is liable for the resulting acts of infringement
by third parties.
I
A
Respondents, Grokster, Ltd., and StreamCast Networks,
Inc., defendants in the trial court, distribute free software
products that allow computer users to share electronic files
through peer-to-peer networks, so called because users’ com
puters communicate directly with each other, not through
neys by Kevin P. Roddy and Matthew E. Van Tine; for Sixty Intellectual
Property and Technology Law Professors et al. by Deirdre K. Mulligan
and Pamela Samuelson; for Sovereign Artists et al. by James R.
Wheaton; for Computer Science Professor Harold Abelson et al. by James
S. Tyre; for Professor Edward Lee et al. by Mr. Lee, pro se; for Charles
Nesson by Mr. Nesson, pro se; and for Malla Pollack et al. by Ms. Pollack,
pro se.
Briefs of amici curiae were filed for the American Intellectual Property
Law Association by Rick D. Nydegger and Melvin C. Garner; for Audible
Magic Corp. et al. by Bruce V. Spiva and Jeremy H. Stern; for Bridgemar
Services, Ltd. d/ b/a iMesh.com by Jeffrey A. Kimmel; for the Business
Software Alliance by E. Edward Bruce and Robert A. Long, Jr.; for Cre
ative Commons by Lawrence Lessig; for the Digital Media Association
et al. by Lawrence Robbins, Alan Untereiner, Markham C. Erickson, and
Jerry Berman; for Emerging Technology Companies by Michael Traynor
and Matthew D. Brown; for IEEE-USA by Matthew J. Conigliaro, An
drew C. Greenberg, Joseph H. Lang, Jr., and Daniel E. Fisher; for Innova
tion Scholars and Economists by Laurence F. Pulgram; for the Intellectual
Property Owners Association by James H. Pooley; for Media Studies Pro
fessors by Roy I. Liebman; for the National Venture Capital Association
by Michael K. Kellogg, Mark L. Evans, and David L. Schwarz; for Shar
man Networks Limited by Mr. Dorman; for SNOCAP, Inc., by Joel W.
Nomkin; for Kenneth J. Arrow et al. by David A. Strauss; for Lee A.
Hollaar by Lloyd W. Sadler; for U. S. Senator Patrick Leahy et al. by
Mr. Leahy, pro se, and Senator Orrin G. Hatch, pro se; and for Felix
Oberholzer-Gee et al. by Carl H. Settlemyer III and Arnold P. Lutzker.

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METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
Opinion of the Court
central servers. The advantage of peer-to-peer networks
over information networks of other types shows up in their
substantial and growing popularity. Because they need no
central computer server to mediate the exchange of informa
tion or files among users, the high-bandwidth communica
tions capacity for a server may be dispensed with, and the
need for costly server storage space is eliminated. Since
copies of a file (particularly a popular one) are available on
many users’ computers, file requests and retrievals may be
faster than on other types of networks, and since file ex
changes do not travel through a server, communications can
take place between any computers that remain connected to
the network without risk that a glitch in the server will dis
able the network in its entirety. Given these benefits in se
curity, cost, and efficiency, peer-to-peer networks are em
ployed to store and distribute electronic files by universities,
government agencies, corporations, and libraries, among
others.1
Other users of peer-to-peer networks include individual re
cipients of Grokster’s and StreamCast’s software, and al
though the networks that they enjoy through using the soft
ware can be used to share any type of digital file, they have
prominently employed those networks in sharing copy
righted music and video files without authorization. A
group of copyright holders (MGM for short, but including
motion picture studios, recording companies, songwriters,
and music publishers) sued Grokster and StreamCast for
their users’ copyright infringements, alleging that they
1 Peer-to-peer networks have disadvantages as well. Searches on
peer-to-peer networks may not reach and uncover all available files be
cause search requests may not be transmitted to every computer on the
network. There may be redundant copies of popular files. The creator
of the software has no incentive to minimize storage or bandwidth con
sumption, the costs of which are borne by every user of the network.
Most relevant here, it is more difficult to control the content of files avail
able for retrieval and the behavior of users.

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knowingly and intentionally distributed their software to en
able users to reproduce and distribute the copyrighted works
in violation of the Copyright Act, 17 U. S. C. § 101 et seq.
(2000 ed. and Supp. II).2 MGM sought damages and an
injunction.
Discovery during the litigation revealed the way the soft
ware worked, the business aims of each defendant company,
and the predilections of the users. Grokster’s eponymous
software employs what is known as FastTrack technology,
a protocol developed by others and licensed to Grokster.
StreamCast distributes a very similar product except that
its software, called Morpheus, relies on what is known as
Gnutella technology.3 A user who downloads and installs
either software possesses the protocol to send requests for
files directly to the computers of others using software com
patible with FastTrack or Gnutella. On the FastTrack net
work opened by the Grokster software, the user’s request
goes to a computer given an indexing capacity by the soft
ware and designated a supernode, or to some other computer
with comparable power and capacity to collect temporary
indexes of the files available on the computers of users
connected to it. The supernode (or indexing computer)
searches its own index and may communicate the search re
quest to other supernodes. If the file is found, the super
node discloses its location to the computer requesting it, and
the requesting user can download the file directly from the
computer located. The copied file is placed in a designated
sharing folder on the requesting user’s computer, where it is
available for other users to download in turn, along with any
other file in that folder.
2 The studios and recording companies and the songwriters and music
publishers filed separate suits against the defendants that were consoli
dated by the District Court.
3 Subsequent versions of Morpheus, released after the record was made
in this case, apparently rely not on Gnutella but on a technology called
Neonet. These developments are not before us.

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In the Gnutella network made available by Morpheus, the
process is mostly the same, except that in some versions of
the Gnutella protocol there are no supernodes. In these
versions, peer computers using the protocol communicate di
rectly with each other. When a user enters a search request
into the Morpheus software, it sends the request to comput
ers connected with it, which in turn pass the request along
to other connected peers. The search results are communi
cated to the requesting computer, and the user can download
desired files directly from peers’ computers. As this de
scription indicates, Grokster and StreamCast use no servers
to intercept the content of the search requests or to mediate
the file transfers conducted by users of the software, there
being no central point through which the substance of the
communications passes in either direction.4
Although Grokster and StreamCast do not therefore know
when particular files are copied, a few searches using their
software would show what is available on the networks the
software reaches. MGM commissioned a statistician to con
duct a systematic search, and his study showed that nearly
90% of the files available for download on the FastTrack sys
tem were copyrighted works.5 Grokster and StreamCast
dispute this figure, raising methodological problems and ar
guing that free copying even of copyrighted works may be
authorized by the rightholders. They also argue that poten
tial noninfringing uses of their software are significant in
kind, even if infrequent in practice. Some musical perform
ers, for example, have gained new audiences by distributing
4 There is some evidence that both Grokster and StreamCast previously
operated supernodes, which compiled indexes of files available on all of
the nodes connected to them. This evidence, pertaining to previous ver
sions of the defendants’ software, is not before us and would not affect our
conclusions in any event.
5 By comparison, evidence introduced by the plaintiffs in A&M Records,
Inc. v. Napster, Inc., 239 F. 3d 1004 (CA9 2001), showed that 87% of files
available on the Napster file-sharing network were copyrighted, id., at
1013.

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their copyrighted works for free across peer-to-peer net
works, and some distributors of unprotected content have
used peer-to-peer networks to disseminate files, Shakespeare
being an example. Indeed, StreamCast has given Morpheus
users the opportunity to download the briefs in this very
case, though their popularity has not been quantified.
As for quantification, the parties’ anecdotal and statistical
evidence entered thus far to show the content available on
the FastTrack and Gnutella networks does not say much
about which files are actually downloaded by users, and no
one can say how often the software is used to obtain copies
of unprotected material. But MGM’s evidence gives reason
to think that the vast majority of users’ downloads are acts
of infringement, and because well over 100 million copies of
the software in question are known to have been down
loaded, and billions of files are shared across the FastTrack
and Gnutella networks each month, the probable scope of
copyright infringement is staggering.
Grokster and StreamCast concede the infringement in
most downloads, Brief for Respondents 10, n. 6, and it is un
contested that they are aware that users employ their soft
ware primarily to download copyrighted files, even if the de
centralized FastTrack and Gnutella networks fail to reveal
which files are being copied, and when. From time to time,
moreover, the companies have learned about their users’ in
fringement directly, as from users who have sent e-mail to
each company with questions about playing copyrighted
movies they had downloaded, to whom the companies have
responded with guidance.6 App. 559–563, 808–816, 939–954.
And MGM notified the companies of 8 million copyrighted
files that could be obtained using their software.
Grokster and StreamCast are not, however, merely pas
sive recipients of information about infringing use. The rec
ord is replete with evidence that from the moment Grokster
6 The Grokster founder contends that in answering these e-mails he
often did not read them fully. App. 77, 769.

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and StreamCast began to distribute their free software, each
one clearly voiced the objective that recipients use it to
download copyrighted works, and each took active steps to
encourage infringement.
After the notorious file-sharing service, Napster, was sued
by copyright holders for facilitation of copyright infringe
ment, A&M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d
896 (ND Cal. 2000), aff ’d in part, rev’d in part, 239 F. 3d 1004
(CA9 2001), StreamCast gave away a software program of a
kind known as OpenNap, designed as compatible with the
Napster program and open to Napster users for downloading
files from other Napster and OpenNap users’ computers.
Evidence indicates that “[i]t was always [StreamCast’s] in
tent to use [its OpenNap network] to be able to capture email
addresses of [its] initial target market so that [it] could pro
mote [its] StreamCast Morpheus interface to them,” App.
861; indeed, the OpenNap program was engineered “ ‘to le
verage Napster’s 50 million user base,’ ” id., at 746.
StreamCast monitored both the number of users down
loading its OpenNap program and the number of music files
they downloaded. Id., at 859, 863, 866. It also used the re
sulting OpenNap network to distribute copies of the Mor
pheus software and to encourage users to adopt it. Id., at
861, 867, 1039. Internal company documents indicate that
StreamCast hoped to attract large numbers of former Nap
ster users if that company was shut down by court order or
otherwise, and that StreamCast planned to be the next Nap
ster. Id., at 861. A kit developed by StreamCast to be de
livered to advertisers, for example, contained press articles
about StreamCast’s potential to capture former Napster
users, id., at 568–572, and it introduced itself to some poten
tial advertisers as a company “which is similar to what Nap
ster was,” id., at 884. It broadcast banner advertisements
to users of other Napster-compatible software, urging them
to adopt its OpenNap. Id., at 586. An internal e-mail from
a company executive stated: “ ‘We have put this network in

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place so that when Napster pulls the plug on their free
service . . . or if the Court orders them shut down prior to
that . . . we will be positioned to capture the flood of their 32
million users that will be actively looking for an alterna
tive.’ ” Id., at 588–589, 861.
Thus, StreamCast developed promotional materials to
market its service as the best Napster alternative. One
proposed advertisement read: “Napster Inc. has announced
that it will soon begin charging you a fee. That’s if the
courts don’t order it shut down first. What will you do to
get around it?” Id., at 897. Another proposed ad touted
StreamCast’s software as the “#1 alternative to Napster”
and asked “[w]hen the lights went off at Napster . . .
where did the users go?” Id., at 836 (ellipsis in original).7
StreamCast even planned to flaunt the illegal uses of its soft
ware; when it launched the OpenNap network, the chief tech
nology officer of the company averred that “[t]he goal is to
get in trouble with the law and get sued. It’s the best way
to get in the new[s].” Id., at 916.
The evidence that Grokster sought to capture the market
of former Napster users is sparser but revealing, for Grok
ster launched its own OpenNap system called Swaptor and
inserted digital codes into its Web site so that computer
users using Web search engines to look for “Napster” or
“[f]ree file sharing” would be directed to the Grokster Web
site, where they could download the Grokster software. Id.,
at 992–993. And Grokster’s name is an apparent derivative
of Napster.
StreamCast’s executives monitored the number of songs
by certain commercial artists available on their networks,
and an internal communication indicates they aimed to have
a larger number of copyrighted songs available on their net
7 The record makes clear that StreamCast developed these promotional
materials but not whether it released them to the public. Even if these
advertisements were not released to the public and do not show encour
agement to infringe, they illuminate StreamCast’s purposes.

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works than other file-sharing networks. Id., at 868. The
point, of course, would be to attract users of a mind to in
fringe, just as it would be with their promotional materials
developed showing copyrighted songs as examples of the
kinds of files available through Morpheus. Id., at 848.
Morpheus in fact allowed users to search specifically for “Top
40” songs, id., at 735, which were inevitably copyrighted.
Similarly, Grokster sent users a newsletter promoting its
ability to provide particular, popular copyrighted materials.
Brief for Motion Picture Studio and Recording Company
Petitioners 7–8.
In addition to this evidence of express promotion, market
ing, and intent to promote further, the business models
employed by Grokster and StreamCast confirm that their
principal object was use of their software to download copy
righted works. Grokster and StreamCast receive no reve
nue from users, who obtain the software itself for nothing.
Instead, both companies generate income by selling advertis
ing space, and they stream the advertising to Grokster and
Morpheus users while they are employing the programs.
As the number of users of each program increases, advertis
ing opportunities become worth more. Cf. App. 539, 804.
While there is doubtless some demand for free Shakespeare,
the evidence shows that substantive volume is a function of
free access to copyrighted work. Users seeking Top 40
songs, for example, or the latest release by Modest Mouse,
are certain to be far more numerous than those seeking a
free Decameron, and Grokster and StreamCast translated
that demand into dollars.
Finally, there is no evidence that either company made an
effort to filter copyrighted material from users’ downloads
or otherwise impede the sharing of copyrighted files. Al
though Grokster appears to have sent e-mails warning users
about infringing content when it received threatening notice
from the copyright holders, it never blocked anyone from
continuing to use its software to share copyrighted files.

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Id., at 75–76. StreamCast not only rejected another com
pany’s offer of help to monitor infringement, id., at 928–929,
but blocked the Internet Protocol addresses of entities it be
lieved were trying to engage in such monitoring on its net
works, id., at 917–922.
B
After discovery, the parties on each side of the case cross
moved for summary judgment. The District Court limited
its consideration to the asserted liability of Grokster and
StreamCast for distributing the current versions of their
software, leaving aside whether either was liable “for dam
ages arising from past versions of their software, or from
other past activities.” 259 F. Supp. 2d 1029, 1033 (CD Cal.
2003). The District Court held that those who used the
Grokster and Morpheus software to download copyrighted
media files directly infringed MGM’s copyrights, a conclusion
not contested on appeal, but the court nonetheless granted
summary judgment in favor of Grokster and StreamCast as
to any liability arising from distribution of the then-current
versions of their software. Distributing that software gave
rise to no liability in the court’s view, because its use did not
provide the distributors with actual knowledge of specific
acts of infringement. Case No. CV 01 08541 SVW (PJWx)
(CD Cal., June 18, 2003), App. 1213.
The Court of Appeals affirmed. 380 F. 3d 1154 (CA9
2004). In the court’s analysis, a defendant was liable as a
contributory infringer when it had knowledge of direct in
fringement and materially contributed to the infringement.
But the court read Sony Corp. of America v. Universal City
Studios, Inc., 464 U. S. 417 (1984), as holding that distribu
tion of a commercial product capable of substantial nonin
fringing uses could not give rise to contributory liability for
infringement unless the distributor had actual knowledge of
specific instances of infringement and failed to act on that
knowledge. The fact that the software was capable of sub
stantial noninfringing uses in the Ninth Circuit’s view meant

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that Grokster and StreamCast were not liable, because they
had no such actual knowledge, owing to the decentralized
architecture of their software. The court also held that
Grokster and StreamCast did not materially contribute to
their users’ infringement because it was the users them
selves who searched for, retrieved, and stored the infringing
files, with no involvement by the defendants beyond provid
ing the software in the first place.
The Ninth Circuit also considered whether Grokster and
StreamCast could be liable under a theory of vicarious in
fringement. The court held against liability because the de
fendants did not monitor or control the use of the software,
had no agreed-upon right or current ability to supervise its
use, and had no independent duty to police infringement.
We granted certiorari. 543 U. S. 1032 (2004).
II
A
MGM and many of the amici fault the Court of Appeals’s
holding for upsetting a sound balance between the respective
values of supporting creative pursuits through copyright
protection and promoting innovation in new communication
technologies by limiting the incidence of liability for copy
right infringement. The more artistic protection is favored,
the more technological innovation may be discouraged; the
administration of copyright law is an exercise in managing
the tradeoff. See Sony Corp. v. Universal City Studios,
supra, at 442; see generally Ginsburg, Copyright and Control
Over New Technologies of Dissemination, 101 Colum. L. Rev.
1613 (2001); Lichtman & Landes, Indirect Liability for Copy
right Infringement: An Economic Perspective, 16 Harv. J.
L. & Tech. 395 (2003).
The tension between the two values is the subject of this
case, with its claim that digital distribution of copyrighted
material threatens copyright holders as never before, be
cause every copy is identical to the original, copying is easy,

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and many people (especially the young) use file-sharing soft
ware to download copyrighted works. This very breadth of
the software’s use may well draw the public directly into the
debate over copyright policy, Peters, Brace Memorial Lec
ture: Copyright Enters the Public Domain, 51 J. Copyright
Soc. 701, 705–717 (2004) (address by Register of Copyrights),
and the indications are that the ease of copying songs or
movies using software like Grokster’s and Napster’s is fos
tering disdain for copyright protection, Wu, When Code Isn’t
Law, 89 Va. L. Rev. 679, 724–726 (2003). As the case has
been presented to us, these fears are said to be offset by the
different concern that imposing liability, not only on in
fringers but on distributors of software based on its potential
for unlawful use, could limit further development of benefi
cial technologies. See, e. g., Lemley & Reese, Reducing Dig
ital Copyright Infringement Without Restricting Innovation,
56 Stan. L. Rev. 1345, 1386–1390 (2004); Brief for Innovation
Scholars and Economists as Amici Curiae 15–20; Brief for
Emerging Technology Companies as Amici Curiae 19–25;
Brief for Intel Corporation as Amicus Curiae 20–22.8
The argument for imposing indirect liability in this case
is, however, a powerful one, given the number of infringing
downloads that occur every day using StreamCast’s and
Grokster’s software. When a widely shared service or prod
uct is used to commit infringement, it may be impossible to
8 The mutual exclusivity of these values should not be overstated, how
ever. On the one hand technological innovators, including those writing
file-sharing computer programs, may wish for effective copyright protec
tions for their work. See, e. g., Wu, When Code Isn’t Law, 89 Va. L. Rev.
679, 750 (2003). (StreamCast itself was urged by an associate to “get [its]
technology written down and [its intellectual property] protected.” App.
866.) On the other hand the widespread distribution of creative works
through improved technologies may enable the synthesis of new works or
generate audiences for emerging artists. See Eldred v. Ashcroft, 537
U. S. 186, 223–226 (2003) (Stevens, J., dissenting); Van Houweling, Dis
tributive Values in Copyright, 83 Texas L. Rev. 1535, 1539–1540, 1562–1564
(2005); Brief for Sovereign Artists et al. as Amici Curiae 11.

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enforce rights in the protected work effectively against all
direct infringers, the only practical alternative being to go
against the distributor of the copying device for secondary
liability on a theory of contributory or vicarious infringe
ment. See In re Aimster Copyright Litigation, 334 F. 3d
643, 645–646 (CA7 2003).
One infringes contributorily by intentionally inducing or
encouraging direct infringement, see Gershwin Pub. Corp. v.
Columbia Artists Management, Inc., 443 F. 2d 1159, 1162
(CA2 1971), and infringes vicariously by profiting from direct
infringement while declining to exercise a right to stop or
limit it, Shapiro, Bernstein & Co. v. H. L. Green Co., 316
F. 2d 304, 307 (CA2 1963).9 Although “[t]he Copyright Act
does not expressly render anyone liable for infringement
committed by another,” Sony Corp. v. Universal City Stu
dios, 464 U. S., at 434, these doctrines of secondary liability
emerged from common law principles and are well estab
lished in the law, id., at 486 (Blackmun, J., dissenting);
Kalem Co. v. Harper Brothers, 222 U. S. 55, 62–63 (1911);
Gershwin Pub. Corp. v. Columbia Artists Management,
9 We stated in Sony Corp. of America v. Universal City Studios, Inc.,
464 U. S. 417 (1984), that “ ‘the lines between direct infringement, contrib
utory infringement and vicarious liability are not clearly drawn’ . . . .
[R]easoned analysis of [the Sony plaintiffs’ contributory infringement
claim] necessarily entails consideration of arguments and case law which
may also be forwarded under the other labels, and indeed the parties . . .
rely upon such arguments and authority in support of their respective
positions on the issue of contributory infringement,” id., at 435, n. 17 (quot
ing Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp.
429, 457–458 (CD Cal. 1979)). In the present case MGM has argued a
vicarious liability theory, which allows imposition of liability when the de
fendant profits directly from the infringement and has a right and ability
to supervise the direct infringer, even if the defendant initially lacks
knowledge of the infringement. See, e. g., Shapiro, Bernstein & Co. v.
H. L. Green Co., 316 F. 2d 304, 308 (CA2 1963); Dreamland Ball Room,
Inc. v. Shapiro, Bernstein & Co., 36 F. 2d 354, 355 (CA7 1929). Because
we resolve the case based on an inducement theory, there is no need to
analyze separately MGM’s vicarious liability theory.

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supra, at 1162; 3 M. Nimmer & D. Nimmer, Copyright
§ 12.04[A] (2005).
B
Despite the currency of these principles of secondary lia
bility, this Court has dealt with secondary copyright in
fringement in only one recent case, and because MGM has
tailored its principal claim to our opinion there, a look at our
earlier holding is in order. In Sony Corp. v. Universal City
Studios, supra, this Court addressed a claim that secondary
liability for infringement can arise from the very distribution
of a commercial product. There, the product, novel at the
time, was what we know today as the videocassette recorder
or VCR. Copyright holders sued Sony as the manufacturer,
claiming it was contributorily liable for infringement that oc
curred when VCR owners taped copyrighted programs be
cause it supplied the means used to infringe, and it had con
structive knowledge that infringement would occur. At the
trial on the merits, the evidence showed that the principal
use of the VCR was for “ ‘time-shifting,’ ” or taping a pro
gram for later viewing at a more convenient time, which the
Court found to be a fair, not an infringing, use. Id., at 423–
424. There was no evidence that Sony had expressed an
object of bringing about taping in violation of copyright or
had taken active steps to increase its profits from unlawful
taping. Id., at 438. Although Sony’s advertisements urged
consumers to buy the VCR to “ ‘record favorite shows’ ” or
“ ‘build a library’ ” of recorded programs, id., at 459 (Black
mun, J., dissenting), neither of these uses was necessarily
infringing, id., at 424, 454–455.
On those facts, with no evidence of stated or indicated in
tent to promote infringing uses, the only conceivable basis
for imposing liability was on a theory of contributory in
fringement arising from its sale of VCRs to consumers with
knowledge that some would use them to infringe. Id., at
439. But because the VCR was “capable of commercially
significant noninfringing uses,” we held the manufacturer

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could not be faulted solely on the basis of its distribution.
Id., at 442.
This analysis reflected patent law’s traditional staple arti
cle of commerce doctrine, now codified, that distribution of a
component of a patented device will not violate the patent if
it is suitable for use in other ways. 35 U. S. C. § 271(c); Aro
Mfg. Co. v. Convertible Top Replacement Co., 377 U. S. 476,
485 (1964) (noting codification of cases); id., at 486, n. 6
(same). The doctrine was devised to identify instances in
which it may be presumed from distribution of an article in
commerce that the distributor intended the article to be used
to infringe another’s patent, and so may justly be held liable
for that infringement. “One who makes and sells articles
which are only adapted to be used in a patented combination
will be presumed to intend the natural consequences of his
acts; he will be presumed to intend that they shall be used
in the combination of the patent.” New York Scaffolding
Co. v. Whitney, 224 F. 452, 459 (CA8 1915); see also James
Heekin Co. v. Baker, 138 F. 63, 66 (CA8 1905); Canda v. Mich
igan Malleable Iron Co., 124 F. 486, 489 (CA6 1903);
Thomson-Houston Electric Co. v. Ohio Brass Co., 80 F. 712,
720–721 (CA6 1897); Red Jacket Mfg. Co. v. Davis, 82 F. 432,
439 (CA7 1897); Holly v. Vergennes Machine Co., 4 F. 74,
82 (CC Vt. 1880); Renwick v. Pond, 20 F. Cas. 536, 541
(No. 11,702) (CC SDNY 1872).
In sum, where an article is “good for nothing else” but
infringement, Canda v. Michigan Malleable Iron Co., supra,
at 489, there is no legitimate public interest in its unlicensed
availability, and there is no injustice in presuming or imput
ing an intent to infringe, see Henry v. A. B. Dick Co., 224
U. S. 1, 48 (1912), overruled on other grounds, Motion Pic
ture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502
(1917). Conversely, the doctrine absolves the equivocal con
duct of selling an item with substantial lawful as well as un
lawful uses, and limits liability to instances of more acute

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fault than the mere understanding that some of one’s prod
ucts will be misused. It leaves breathing room for innova
tion and a vigorous commerce. See Sony Corp. v. Universal
City Studios, 464 U. S., at 442; Dawson Chemical Co. v.
Rohm & Haas Co., 448 U. S. 176, 221 (1980); Henry v. A. B.
Dick Co., supra, at 48.
The parties and many of the amici in this case think the
key to resolving it is the Sony rule and, in particular, what
it means for a product to be “capable of commercially signifi
cant noninfringing uses.” Sony Corp. v. Universal City
Studios, supra, at 442. MGM advances the argument that
granting summary judgment to Grokster and StreamCast as
to their current activities gave too much weight to the value
of innovative technology, and too little to the copyrights in
fringed by users of their software, given that 90% of works
available on one of the networks was shown to be copy
righted. Assuming the remaining 10% to be its noninfring
ing use, MGM says this should not qualify as “substantial,”
and the Court should quantify Sony to the extent of holding
that a product used “principally” for infringement does not
qualify. See Brief for Motion Picture Studio and Recording
Company Petitioners 31. As mentioned before, Grokster
and StreamCast reply by citing evidence that their software
can be used to reproduce public domain works, and they
point to copyright holders who actually encourage copying.
Even if infringement is the principal practice with their soft
ware today, they argue, the noninfringing uses are signifi
cant and will grow.
We agree with MGM that the Court of Appeals misapplied
Sony, which it read as limiting secondary liability quite be
yond the circumstances to which the case applied. Sony
barred secondary liability based on presuming or imputing
intent to cause infringement solely from the design or distri
bution of a product capable of substantial lawful use, which
the distributor knows is in fact used for infringement. The

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Ninth Circuit has read Sony’s limitation to mean that when
ever a product is capable of substantial lawful use, the pro
ducer can never be held contributorily liable for third par
ties’ infringing use of it; it read the rule as being this broad,
even when an actual purpose to cause infringing use is shown
by evidence independent of design and distribution of the
product, unless the distributors had “specific knowledge of
infringement at a time at which they contributed to the in
fringement, and failed to act upon that information.” 380
F. 3d, at 1162 (internal quotation marks and brackets omit
ted). Because the Circuit found the StreamCast and Grok
ster software capable of substantial lawful use, it concluded
on the basis of its reading of Sony that neither company
could be held liable, since there was no showing that their
software, being without any central server, afforded them
knowledge of specific unlawful uses.
This view of Sony, however, was error, converting the case
from one about liability resting on imputed intent to one
about liability on any theory. Because Sony did not displace
other theories of secondary liability, and because we find
below that it was error to grant summary judgment to the
companies on MGM’s inducement claim, we do not revisit
Sony further, as MGM requests, to add a more quantified
description of the point of balance between protection and
commerce when liability rests solely on distribution with
knowledge that unlawful use will occur. It is enough to note
that the Ninth Circuit’s judgment rested on an erroneous
understanding of Sony and to leave further consideration of
the Sony rule for a day when that may be required.
C
Sony’s rule limits imputing culpable intent as a matter of
law from the characteristics or uses of a distributed product.
But nothing in Sony requires courts to ignore evidence of
intent if there is such evidence, and the case was never
meant to foreclose rules of fault-based liability derived from

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the common law.10 Sony Corp. v. Universal City Studios,
supra, at 439 (“If vicarious liability is to be imposed on Sony
in this case, it must rest on the fact that it has sold equip
ment with constructive knowledge” of the potential for in
fringement). Thus, where evidence goes beyond a product’s
characteristics or the knowledge that it may be put to in
fringing uses, and shows statements or actions directed to
promoting infringement, Sony’s staple-article rule will not
preclude liability.
The classic case of direct evidence of unlawful purpose
occurs when one induces commission of infringement by
another, or “entic[es] or persuad[es] another” to infringe,
Black’s Law Dictionary 790 (8th ed. 2004), as by advertising.
Thus at common law a copyright or patent defendant who
“not only expected but invoked [infringing use] by advertise
ment” was liable for infringement “on principles recognized
in every part of the law.” Kalem Co. v. Harper Broth
ers, 222 U. S., at 62–63 (copyright infringement). See also
Henry v. A. B. Dick Co., 224 U. S., at 48–49 (contributory
liability for patent infringement may be found where a good’s
“most conspicuous use is one which will coo¨ perate in an in
fringement when sale to such user is invoked by advertise
ment” of the infringing use); Thomson-Houston Electric Co.
v. Kelsey Electric R. Specialty Co., 75 F. 1005, 1007–1008
(CA2 1896) (relying on advertisements and displays to find
defendant’s “willingness . . . to aid other persons in any at
tempts which they may be disposed to make towards [patent]
infringement”); Rumford Chemical Works v. Hecker, 20 F.
Cas. 1342, 1346 (No. 12,133) (CC NJ 1876) (demonstrations of
infringing activity along with “avowals of the [infringing]
purpose and use for which it was made” supported liability
for patent infringement).
10 Nor does the Patent Act’s exemption from liability for those who dis
tribute a staple article of commerce, 35 U. S. C. § 271(c), extend to those
who induce patent infringement, § 271(b).

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The rule on inducement of infringement as developed in
the early cases is no different today.11 Evidence of “active
steps . . . taken to encourage direct infringement,” Oak In
dustries, Inc. v. Zenith Electronics Corp., 697 F. Supp. 988,
992 (ND Ill. 1988), such as advertising an infringing use or
instructing how to engage in an infringing use, show an af
firmative intent that the product be used to infringe, and a
showing that infringement was encouraged overcomes the
law’s reluctance to find liability when a defendant merely
sells a commercial product suitable for some lawful use, see,
e. g., Water Technologies Corp. v. Calco, Ltd., 850 F. 2d 660,
668 (CA Fed. 1988) (liability for inducement where one “ac
tively and knowingly aid[s] and abet[s] another’s direct in
fringement” (emphasis deleted)); Fromberg, Inc. v. Thorn
hill, 315 F. 2d 407, 412–413 (CA5 1963) (demonstrations by
sales staff of infringing uses supported liability for induce
ment); Haworth Inc. v. Herman Miller Inc., 37 USPQ 2d
1080, 1090 (WD Mich. 1994) (evidence that defendant “dem
onstrate[d] and recommend[ed] infringing configurations” of
its product could support inducement liability); Sims v. Mack
Trucks, Inc., 459 F. Supp. 1198, 1215 (ED Pa. 1978) (finding
inducement where the use “depicted by the defendant in its
promotional film and brochures infringes the . . . patent”),
overruled on other grounds, 608 F. 2d 87 (CA3 1979). Cf. W.
Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Kee
ton on Law of Torts 37 (5th ed. 1984) (“There is a definite
tendency to impose greater responsibility upon a defendant
whose conduct was intended to do harm, or was morally
wrong”).
For the same reasons that Sony took the staple-article doc
trine of patent law as a model for its copyright safe-harbor
rule, the inducement rule, too, is a sensible one for copyright.
We adopt it here, holding that one who distributes a device
with the object of promoting its use to infringe copyright, as
11 Inducement has been codified in patent law. Ibid.

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shown by clear expression or other affirmative steps taken
to foster infringement, is liable for the resulting acts of in
fringement by third parties. We are, of course, mindful of
the need to keep from trenching on regular commerce or
discouraging the development of technologies with lawful
and unlawful potential. Accordingly, just as Sony did not
find intentional inducement despite the knowledge of the
VCR manufacturer that its device could be used to infringe,
464 U. S., at 439, n. 19, mere knowledge of infringing poten
tial or of actual infringing uses would not be enough here to
subject a distributor to liability. Nor would ordinary acts
incident to product distribution, such as offering customers
technical support or product updates, support liability in
themselves. The inducement rule, instead, premises liabil
ity on purposeful, culpable expression and conduct, and thus
does nothing to compromise legitimate commerce or discour
age innovation having a lawful promise.
III
A
The only apparent question about treating MGM’s evi
dence as sufficient to withstand summary judgment under
the theory of inducement goes to the need on MGM’s part to
adduce evidence that StreamCast and Grokster communi
cated an inducing message to their software users. The
classic instance of inducement is by advertisement or solici
tation that broadcasts a message designed to stimulate oth
ers to commit violations. MGM claims that such a message
is shown here. It is undisputed that StreamCast beamed
onto the computer screens of users of Napster-compatible
programs ads urging the adoption of its OpenNap program,
which was designed, as its name implied, to invite the cus
tom of patrons of Napster, then under attack in the courts
for facilitating massive infringement. Those who accepted
StreamCast’s OpenNap program were offered software to
perform the same services, which a factfinder could conclude

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would readily have been understood in the Napster market
as the ability to download copyrighted music files. Grokster
distributed an electronic newsletter containing links to arti
cles promoting its software’s ability to access popular copy
righted music. And anyone whose Napster or free file
sharing searches turned up a link to Grokster would have
understood Grokster to be offering the same file-sharing
ability as Napster, and to the same people who probably used
Napster for infringing downloads; that would also have been
the understanding of anyone offered Grokster’s suggestively
named Swaptor software, its version of OpenNap. And both
companies communicated a clear message by responding af
firmatively to requests for help in locating and playing copy
righted materials.
In StreamCast’s case, of course, the evidence just de
scribed was supplemented by other unequivocal indications
of unlawful purpose in the internal communications and ad
vertising designs aimed at Napster users (“When the lights
went off at Napster . . . where did the users go?” App. 836
(ellipsis in original)). Whether the messages were commu
nicated is not to the point on this record. The function of
the message in the theory of inducement is to prove by a
defendant’s own statements that his unlawful purpose dis
qualifies him from claiming protection (and incidentally to
point to actual violators likely to be found among those who
hear or read the message). See supra, at 935–937. Prov
ing that a message was sent out, then, is the preeminent but
not exclusive way of showing that active steps were taken
with the purpose of bringing about infringing acts, and of
showing that infringing acts took place by using the device
distributed. Here, the summary judgment record is replete
with other evidence that Grokster and StreamCast, unlike
the manufacturer and distributor in Sony, acted with a pur
pose to cause copyright violations by use of software suitable
for illegal use. See supra, at 924–927.

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Three features of this evidence of intent are particularly
notable. First, each company showed itself to be aiming to
satisfy a known source of demand for copyright infringe
ment, the market comprising former Napster users.
StreamCast’s internal documents made constant reference
to Napster, it initially distributed its Morpheus software
through an OpenNap program compatible with Napster, it
advertised its OpenNap program to Napster users, and its
Morpheus software functions as Napster did except that it
could be used to distribute more kinds of files, including
copyrighted movies and software programs. Grokster’s
name is apparently derived from Napster, it too initially of
fered an OpenNap program, its software’s function is like
wise comparable to Napster’s, and it attempted to divert
queries for Napster onto its own Web site. Grokster and
StreamCast’s efforts to supply services to former Napster
users, deprived of a mechanism to copy and distribute what
were overwhelmingly infringing files, indicate a principal, if
not exclusive, intent on the part of each to bring about
infringement.
Second, this evidence of unlawful objective is given added
significance by MGM’s showing that neither company at
tempted to develop filtering tools or other mechanisms to
diminish the infringing activity using their software. While
the Ninth Circuit treated the defendants’ failure to develop
such tools as irrelevant because they lacked an independent
duty to monitor their users’ activity, we think this evidence
underscores Grokster’s and StreamCast’s intentional facilita
tion of their users’ infringement.12
Third, there is a further complement to the direct evidence
of unlawful objective. It is useful to recall that StreamCast
12 Of course, in the absence of other evidence of intent, a court would be
unable to find contributory infringement liability merely based on a failure
to take affirmative steps to prevent infringement, if the device otherwise
was capable of substantial noninfringing uses. Such a holding would
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and Grokster make money by selling advertising space, by
directing ads to the screens of computers employing their
software. As the record shows, the more the software is
used, the more ads are sent out and the greater the advertis
ing revenue becomes. Since the extent of the software’s use
determines the gain to the distributors, the commercial
sense of their enterprise turns on high-volume use, which
the record shows is infringing.13 This evidence alone would
not justify an inference of unlawful intent, but viewed in the
context of the entire record its import is clear.
The unlawful objective is unmistakable.
B
In addition to intent to bring about infringement and dis
tribution of a device suitable for infringing use, the induce
ment theory of course requires evidence of actual infringe
ment by recipients of the device, the software in this case.
As the account of the facts indicates, there is evidence of
infringement on a gigantic scale, and there is no serious issue
of the adequacy of MGM’s showing on this point in order to
survive the companies’ summary judgment requests. Al
13 Grokster and StreamCast contend that any theory of liability based
on their conduct is not properly before this Court because the rulings in
the trial and appellate courts dealt only with the present versions of their
software, not “past acts . . . that allegedly encouraged infringement or
assisted . . . known acts of infringement.” Brief for Respondents 14; see
also id., at 34. This contention misapprehends the basis for their potential
liability. It is not only that encouraging a particular consumer to infringe
a copyright can give rise to secondary liability for the infringement that
results. Inducement liability goes beyond that, and the distribution of a
product can itself give rise to liability where evidence shows that the dis
tributor intended and encouraged the product to be used to infringe. In
such a case, the culpable act is not merely the encouragement of infringe
ment but also the distribution of the tool intended for infringing use. See
Kalem Co. v. Harper Brothers, 222 U. S. 55, 62–63 (1911); Cable/Home
Communication Corp. v. Network Productions, Inc., 902 F. 2d 829, 846
(CA11 1990); A&M Records, Inc. v. Abdallah, 948 F. Supp. 1449, 1456 (CD
Cal. 1996).

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though an exact calculation of infringing use, as a basis for
a claim of damages, is subject to dispute, there is no question
that the summary judgment evidence is at least adequate
to entitle MGM to go forward with claims for damages and
equitable relief.
* * *
In sum, this case is significantly different from Sony and
reliance on that case to rule in favor of StreamCast and
Grokster was error. Sony dealt with a claim of liability
based solely on distributing a product with alternative lawful
and unlawful uses, with knowledge that some users would
follow the unlawful course. The case struck a balance be
tween the interests of protection and innovation by holding
that the product’s capability of substantial lawful employ
ment should bar the imputation of fault and consequent sec
ondary liability for the unlawful acts of others.
MGM’s evidence in this case most obviously addresses a
different basis of liability for distributing a product open to
alternative uses. Here, evidence of the distributors’ words
and deeds going beyond distribution as such shows a purpose
to cause and profit from third-party acts of copyright in
fringement. If liability for inducing infringement is ulti
mately found, it will not be on the basis of presuming or
imputing fault, but from inferring a patently illegal objective
from statements and actions showing what that objective
was.
There is substantial evidence in MGM’s favor on all ele
ments of inducement, and summary judgment in favor of
Grokster and StreamCast was error. On remand, reconsid
eration of MGM’s motion for summary judgment will be in
order.
The judgment of the Court of Appeals is vacated, and the
case is remanded for further proceedings consistent with
this opinion.
It is so ordered.

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Ginsburg, J., concurring
Justice Ginsburg, with whom The Chief Justice and
Justice Kennedy join, concurring.
I concur in the Court’s decision, which vacates in full the
judgment of the Court of Appeals for the Ninth Circuit, ante,
at 941, and write separately to clarify why I conclude that
the Court of Appeals misperceived, and hence misapplied,
our holding in Sony Corp. of America v. Universal City Stu
dios, Inc., 464 U. S. 417 (1984). There is here at least a “gen
uine issue as to [a] material fact,” Fed. Rule Civ. Proc. 56(c),
on the liability of Grokster or StreamCast, not only for ac
tively inducing copyright infringement, but also, or alterna
tively, based on the distribution of their software products,
for contributory copyright infringement. On neither score
was summary judgment for Grokster and StreamCast
warranted.
At bottom, however labeled, the question in this case is
whether Grokster and StreamCast are liable for the direct
infringing acts of others. Liability under our jurisprudence
may be predicated on actively encouraging (or inducing) in
fringement through specific acts (as the Court’s opinion
develops) or on distributing a product distributees use to
infringe copyrights, if the product is not capable of “sub
stantial” or “commercially significant” noninfringing uses.
Sony, 464 U. S., at 442; see also 3 M. Nimmer & D. Nimmer,
Nimmer on Copyright § 12.04[A][2] (2005). While the two
categories overlap, they capture different culpable behavior.
Long coexisting, both are now codified in patent law. Com
pare 35 U. S. C. § 271(b) (active inducement liability) with
§ 271(c) (contributory liability for distribution of a product
not “suitable for substantial noninfringing use”).
In Sony, 464 U. S. 417, the Court considered Sony’s liabil
ity for selling the Betamax videocassette recorder. It did
so enlightened by a full trial record. Drawing an analogy
to the staple article of commerce doctrine from patent law,

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the Sony Court observed that the “sale of an article . . .
adapted to [a patent] infringing use” does not suffice “to
make the seller a contributory infringer” if the article “is
also adapted to other and lawful uses.” Id., at 441 (quoting
Henry v. A. B. Dick Co., 224 U. S. 1, 48 (1912), overruled on
other grounds, Motion Picture Patents Co. v. Universal
Film Mfg. Co., 243 U. S. 502, 517 (1917)).
“The staple article of commerce doctrine” applied to copy
right, the Court stated, “must strike a balance between a
copyright holder’s legitimate demand for effective—not
merely symbolic—protection of the statutory monopoly, and
the rights of others freely to engage in substantially unre
lated areas of commerce.” Sony, 464 U. S., at 442. “Ac
cordingly,” the Court held, “the sale of copying equipment,
like the sale of other articles of commerce, does not consti
tute contributory infringement if the product is widely used
for legitimate, unobjectionable purposes. Indeed, it need
merely be capable of substantial noninfringing uses.” Ibid.
Thus, to resolve the Sony case, the Court explained, it had to
determine “whether the Betamax is capable of commercially
significant noninfringing uses.” Ibid.
To answer that question, the Court considered whether
“a significant number of [potential uses of the Betamax were]
noninfringing.” Ibid. The Court homed in on one potential
use—private, noncommercial time-shifting of television pro
grams in the home (i. e., recording a broadcast TV program
for later personal viewing). Time-shifting was noninfring
ing, the Court concluded, because in some cases trial testi
mony showed it was authorized by the copyright holder, id.,
at 443–447, and in others it qualified as legitimate fair use,
id., at 447–455. Most purchasers used the Betamax princi
pally to engage in time-shifting, id., at 421, 423, a use that
“plainly satisfie[d]” the Court’s standard, id., at 442. Thus,
there was no need in Sony to “give precise content to the
question of how much [actual or potential] use is commer

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cially significant.” Ibid.1 Further development was left
for later days and cases.
The Ninth Circuit went astray, I will endeavor to explain,
when that court granted summary judgment to Grokster and
StreamCast on the charge of contributory liability based on
distribution of their software products. Relying on its ear
lier opinion in A&M Records, Inc. v. Napster, Inc., 239 F. 3d
1004 (CA9 2001), the Court of Appeals held that “if substan
tial noninfringing use was shown, the copyright owner would
be required to show that the defendant had reasonable
knowledge of specific infringing files.” 380 F. 3d 1154, 1161
(CA9 2004). “A careful examination of the record,” the
1 Justice Breyer finds in Sony Corp. of America v. Universal City
Studios, Inc., 464 U. S. 417 (1984), a “clear” rule permitting contributory
liability for copyright infringement based on distribution of a product only
when the product “will be used almost exclusively to infringe copyrights.”
Post, at 957. But cf. Sony, 464 U. S., at 442 (recognizing “copyright hold
er’s legitimate demand for effective—not merely symbolic—protection”).
Sony, as I read it, contains no clear, near-exclusivity test. Nor have
Courts of Appeals unanimously recognized Justice Breyer’s clear rule.
Compare A&M Records, Inc. v. Napster, Inc., 239 F. 3d 1004, 1021 (CA9
2001) (“[E]vidence of actual knowledge of specific acts of infringement is
required to hold a computer system operator liable for contributory copy
right infringement.”), with In re Aimster Copyright Litigation, 334 F. 3d
643, 649–650 (CA7 2003) (“[W]hen a supplier is offering a product or serv
ice that has noninfringing as well as infringing uses, some estimate of the
respective magnitudes of these uses is necessary for a finding of contribu
tory infringement. . . . But the balancing of costs and benefits is necessary
only in a case in which substantial noninfringing uses, present or prospec
tive, are demonstrated.”). See also Matthew Bender & Co. v. West Pub.
Co., 158 F. 3d 693, 707 (CA2 1998) (“The Supreme Court applied [the Sony]
test to prevent copyright holders from leveraging the copyrights in their
original work to control distribution of . . . products that might be used
incidentally for infringement, but that had substantial noninfringing
uses. . . . The same rationale applies here [to products] that have substan
tial, predominant and noninfringing uses as tools for research and cita
tion.”). All Members of the Court agree, moreover, that “the Court of
Appeals misapplied Sony,” at least to the extent it read that decision to
limit “secondary liability” to a hardly ever category, “quite beyond the
circumstances to which the case applied.” Ante, at 933.

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court concluded, “indicates that there is no genuine issue of
material fact as to noninfringing use.” Ibid. The appeals
court pointed to the band Wilco, which made one of its al
bums available for free downloading, to other recording art
ists who may have authorized free distribution of their music
through the Internet, and to public domain literary works
and films available through Grokster’s and StreamCast’s
software. Ibid. Although it acknowledged petitioners’
(hereinafter MGM) assertion that “the vast majority of the
software use is for copyright infringement,” the court con
cluded that Grokster’s and StreamCast’s proffered evidence
met Sony’s requirement that “a product need only be capable
of substantial noninfringing uses.” 380 F. 3d, at 1162.2
This case differs markedly from Sony. Cf. Peters, Brace
Memorial Lecture: Copyright Enters the Public Domain, 51
J. Copyright Soc. 701, 724 (2004) (“The Grokster panel’s read
ing of Sony is the broadest that any court has given it . . . .”).
Here, there has been no finding of any fair use and little
beyond anecdotal evidence of noninfringing uses. In finding
the Grokster and StreamCast software products capable of
substantial noninfringing uses, the District Court and the
Court of Appeals appear to have relied largely on declara
tions submitted by the defendants. These declarations in
clude assertions (some of them hearsay) that a number of
copyright owners authorize distribution of their works on
the Internet and that some public domain material is avail
able through peer-to-peer networks including those accessed
through Grokster’s and StreamCast’s software. 380 F. 3d,
at 1161; 259 F. Supp. 2d 1029, 1035–1036 (CD Cal. 2003);
App. 125–171.
2 Grokster and StreamCast, in the Court of Appeals’ view, would be
entitled to summary judgment unless MGM could show that the software
companies had knowledge of specific acts of infringement and failed to act
on that knowledge—a standard the court held MGM could not meet. 380
F. 3d, at 1162–1163.

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Ginsburg, J., concurring
The District Court declared it “undisputed that there are
substantial noninfringing uses for Defendants’ software,”
thus obviating the need for further proceedings. 259
F. Supp. 2d, at 1035. This conclusion appears to rest almost
entirely on the collection of declarations submitted by Grok
ster and StreamCast. Ibid. Review of these declarations
reveals mostly anecdotal evidence, sometimes obtained
secondhand, of authorized copyrighted works or public do
main works available online and shared through peer-to-peer
networks, and general statements about the benefits of
peer-to-peer technology. See, e. g., Decl. of Janis Ian ¶ 13,
App. 128 (“P2P technologies offer musicians an alternative
channel for promotion and distribution.”); Decl. of Gregory
Newby ¶ 12, id., at 136 (“Numerous authorized and public
domain Project Gutenberg eBooks are made available on
Morpheus, Kazaa, Gnutella, Grokster, and similar software
products.”); Decl. of Aram Sinnreich ¶ 6, id., at 151 (“file
sharing seems to have a net positive impact on music sales”);
Decl. of John Busher ¶ 8, id., at 166 (“I estimate that Acous
tica generates sales of between $1,000 and $10,000 per month
as a result of the distribution of its trialware software
through the Gnutella and FastTrack Networks.”); Decl. of
Patricia D. Hoekman ¶¶ 3–4, id., at 169–170 (search on Mor
pheus for “President Bush speeches” found several video re
cordings, searches for “Declaration of Independence” and
“Bible” found various documents and declarant was able to
download a copy of the Declaration); Decl. of Sean L. Mayers
¶ 11, id., at 67 (“Existing open, decentralized peer-to-peer
file-sharing networks . . . offer content owners distinct busi
ness advantages over alternate online distribution technolo
gies.”). Compare Decl. of Brewster Kahle ¶ 20, id., at 142
(“Those who download the Prelinger films . . . are entitled
to redistribute those files, and the Archive welcomes their
redistribution by the Morpheus-Grokster-KaZaa community
of users.”), with Deposition of Brewster Kahle (Sept. 18,

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2002), id., at 396–403 (testifying that he has no knowledge of
any person downloading a Prelinger film using Morpheus,
Grokster, or KaZaA). Compare also Decl. of Richard Prelin
ger ¶ 17, id., at 147 (“[W]e welcome further redistribution
of the Prelinger films . . . by individuals using peer-to-peer
software products like Morpheus, KaZaA and Grokster.”),
with Deposition of Richard Prelinger (Oct. 1, 2002), id., at
410–411 (“Q. What is your understanding of Grokster? A. I
have no understanding of Grokster. . . . Q. Do you know
whether any user of the Grokster software has made avail
able to share any Prelinger film? A. No.”). See also
Deposition of Aram Sinnreich (Sept. 25, 2002), id., at 390 (tes
timony about the band Wilco based on “[t]he press and indus
try news groups and scuttlebutt.”). These declarations do
not support summary judgment in the face of evidence, prof
fered by MGM, of overwhelming use of Grokster’s and
StreamCast’s software for infringement.3
3 Justice Breyer finds support for summary judgment in this motley
collection of declarations and in a survey conducted by an expert retained
by MGM. Post, at 952–955. That survey identified 75% of the files avail
able through Grokster as copyrighted works owned or controlled by the
plaintiffs, and 15% of the files as works likely copyrighted. App. 439. As
to the remaining 10% of the files, “there was not enough information to
form reasonable conclusions either as to what those files even consisted of,
and/or whether they were infringing or non-infringing.” Id., at 479.
Even assuming, as Justice Breyer does, that the Sony Court would have
absolved Sony of contributory liability solely on the basis of the use of the
Betamax for authorized time-shifting, post, at 950–951, summary judg
ment is not inevitably appropriate here. Sony stressed that the plaintiffs
there owned “well below 10%” of copyrighted television programming, 464
U. S., at 443, and found, based on trial testimony from representatives of
the four major sports leagues and other individuals authorized to consent
to home recording of their copyrighted broadcasts, that a similar percent
age of program copying was authorized, id., at 424. Here, the plaintiffs
allegedly control copyrights for 70% or 75% of the material exchanged
through the Grokster and StreamCast software, 380 F. 3d 1154, 1158 (CA9
2004); App. 439, and the District Court does not appear to have relied on
comparable testimony about authorized copying from copyright holders.

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Ginsburg, J., concurring
Even if the absolute number of noninfringing files copied
using the Grokster and StreamCast software is large, it does
not follow that the products are therefore put to substantial
noninfringing uses and are thus immune from liability. The
number of noninfringing copies may be reflective of, and
dwarfed by, the huge total volume of files shared. Further,
the District Court and the Court of Appeals did not sharply
distinguish between uses of Grokster’s and StreamCast’s
software products (which this case is about) and uses of
peer-to-peer technology generally (which this case is not
about).
In sum, when the record in this case was developed, there
was evidence that Grokster’s and StreamCast’s products
were, and had been for some time, overwhelmingly used to
infringe, ante, at 922–924; App. 434–439, 476–481, and that
this infringement was the overwhelming source of revenue
from the products, ante, at 925–926; 259 F. Supp. 2d, at 1043–
1044. Fairly appraised, the evidence was insufficient to
demonstrate, beyond genuine debate, a reasonable prospect
that substantial or commercially significant noninfringing
uses were likely to develop over time. On this record, the
District Court should not have ruled dispositively on the
contributory infringement charge by granting summary
judgment to Grokster and StreamCast.4
If, on remand, the case is not resolved on summary judg
ment in favor of MGM based on Grokster and StreamCast
actively inducing infringement, the Court of Appeals, I
4 The District Court’s conclusion that “[p]laintiffs do not dispute that
[d]efendants’ software is being used, and could be used, for substantial
noninfringing purposes,” 259 F. Supp. 2d 1029, 1036 (CD Cal. 2003); accord
380 F. 3d, at 1161, is, to say the least, dubious. In the courts below and
in this Court, MGM has continuously disputed any such conclusion. Brief
for Motion Picture Studio and Recording Company Petitioners 30–38;
Brief for MGM Plaintiffs-Appellants in No. 03–55894 etc. (CA9), p. 41; App.
356–357, 361–365.

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would emphasize, should reconsider, on a fuller record, its
interpretation of Sony’s product distribution holding.
Justice Breyer, with whom Justice Stevens and Jus
tice O’Connor join, concurring.
I agree with the Court that the distributor of a dual-use
technology may be liable for the infringing activities of third
parties where he or she actively seeks to advance the in
fringement. Ante, at 919. I further agree that, in light of
our holding today, we need not now “revisit” Sony Corp. of
America v. Universal City Studios, Inc., 464 U. S. 417 (1984).
Ante, at 934. Other Members of the Court, however, take
up the Sony question: whether Grokster’s product is “capa
ble of ‘substantial’ or ‘commercially significant’ noninfringing
uses.” Ante, at 942 (Ginsburg, J., concurring) (quoting
Sony, supra, at 442). And they answer that question by
stating that the Court of Appeals was wrong when it granted
summary judgment on the issue in Grokster’s favor. Ante,
at 944. I write to explain why I disagree with them on
this matter.
I
The Court’s opinion in Sony and the record evidence (as
described and analyzed in the many briefs before us) to
gether convince me that the Court of Appeals’ conclusion has
adequate legal support.
A
I begin with Sony’s standard. In Sony, the Court consid
ered the potential copyright liability of a company that did
not itself illegally copy protected material, but rather sold a
machine—a videocassette recorder (VCR)—that could be
used to do so. A buyer could use that machine for non
infringing purposes, such as recording for later viewing
(sometimes called “ ‘time-shifting,’ ” Sony, 464 U. S., at 421)
uncopyrighted television programs or copyrighted programs
with a copyright holder’s permission. The buyer could use

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the machine for infringing purposes as well, such as building
libraries of taped copyrighted programs. Or, the buyer
might use the machine to record copyrighted programs
under circumstances in which the legal status of the act of
recording was uncertain (i. e., where the copying may, or
may not, have constituted a “fair use,” id., at 425–426).
Sony knew many customers would use its VCRs to engage
in unauthorized copying and “ ‘library-building.’ ” Id., at
458–459 (Blackmun, J., dissenting). But that fact, said the
Court, was insufficient to make Sony itself an infringer.
And the Court ultimately held that Sony was not liable for
its customers’ acts of infringement.
In reaching this conclusion, the Court recognized the need
for the law, in fixing secondary copyright liability, to “strike
a balance between a copyright holder’s legitimate demand
for effective—not merely symbolic—protection of the statu
tory monopoly, and the rights of others freely to engage in
substantially unrelated areas of commerce.” Id., at 442. It
pointed to patent law’s “staple article of commerce” doctrine,
ibid., under which a distributor of a product is not liable for
patent infringement by its customers unless that product is
“unsuited for any commercial noninfringing use.” Dawson
Chemical Co. v. Rohm & Haas Co., 448 U. S. 176, 198 (1980).
The Court wrote that the sale of copying equipment, “like
the sale of other articles of commerce, does not constitute
contributory infringement if the product is widely used
for legitimate, unobjectionable purposes. Indeed, it need
merely be capable of substantial noninfringing uses.”
Sony, 464 U. S., at 442 (emphasis added). The Court ulti
mately characterized the legal “question” in the particular
case as “whether [Sony’s VCR] is capable of commercially
significant noninfringing uses” (while declining to give
“precise content” to these terms). Ibid. (emphasis added).
It then applied this standard. The Court had before it a
survey (commissioned by the District Court and then pre
pared by the respondents) showing that roughly 9% of all

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VCR recordings were of the type—namely, religious, educa
tional, and sports programming—owned by producers and
distributors testifying on Sony’s behalf who did not object
to time-shifting. See Brief for Respondents, O. T. 1983,
No. 81–1687, pp. 52–53; see also Sony, supra, at 424 (7.3% of
all Sony VCR use is to record sports programs; representa
tives of the sports leagues do not object). A much higher
percentage of VCR users had at one point taped an author
ized program, in addition to taping unauthorized programs.
And the plaintiffs—not a large class of content providers as
in this case—owned only a small percentage of the total
available unauthorized programming. See ante, at 947, n. 3
(Ginsburg, J., concurring). But of all the taping actually
done by Sony’s customers, only around 9% was of the sort
the Court referred to as authorized.
The Court found that the magnitude of authorized pro
gramming was “significant,” and it also noted the “significant
potential for future authorized copying.” 464 U. S., at 444.
The Court supported this conclusion by referencing the trial
testimony of professional sports league officials and a reli
gious broadcasting representative. Id., at 444, and n. 24.
It also discussed (1) a Los Angeles educational station affili
ated with the Public Broadcasting Service that made many
of its programs available for home taping, and (2) Mr. Rogers’
Neighborhood, a widely watched children’s program. Id., at
445. On the basis of this testimony and other similar evi
dence, the Court determined that producers of this kind had
authorized duplication of their copyrighted programs “in sig
nificant enough numbers to create a substantial market for
a noninfringing use of the” VCR. Id., at 447, n. 28 (empha
sis added).
The Court, in using the key word “substantial,” indicated
that these circumstances alone constituted a sufficient basis
for rejecting the imposition of secondary liability. See id.,
at 456 (“Sony demonstrated a significant likelihood that sub
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to time-shifting (emphasis added)). Nonetheless, the Court
buttressed its conclusion by finding separately that, in any
event, un-authorized time-shifting often constituted not in
fringement, but “fair use.” Id., at 447–456.
B
When measured against Sony’s underlying evidence and
analysis, the evidence now before us shows that Grokster
passes Sony’s test—that is, whether the company’s product
is capable of substantial or commercially significant non
infringing uses. Id., at 442. For one thing, petitioners’
(hereinafter MGM) own expert declared that 75% of current
files available on Grokster are infringing and 15% are “likely
infringing.” See App. 436–439, ¶¶ 6–17 (Decl. of Dr. Ingram
Olkin); cf. ante, at 922 (opinion of the Court). That leaves
some number of files near 10% that apparently are nonin
fringing, a figure very similar to the 9% or so of authorized
time-shifting uses of the VCR that the Court faced in Sony.
As in Sony, witnesses here explained the nature of the
noninfringing files on Grokster’s network without detailed
quantification. Those files include:
—Authorized copies of music by artists such as Wilco, Janis
Ian, Pearl Jam, Dave Matthews, John Mayer, and others.
See App. 152–153, ¶¶ 9–13 (Decl. of Aram Sinnreich) (Wilco’s
“lesson has already been adopted by artists still signed to
their major labels”); id., at 170, ¶¶ 5–7 (Decl. of Patricia D.
Hoekman) (locating “numerous audio recordings” that were
authorized for swapping); id., at 74, ¶ 10 (Decl. of Daniel B.
Rung) (describing Grokster’s partnership with a company
that hosts music from thousands of independent artists)
—Free electronic books and other works from various online
publishers, including Project Gutenberg. See id., at 136,
¶ 12 (Decl. of Gregory Newby) (“Numerous authorized and
public domain Project Gutenberg eBooks are made available”
on Grokster. Project Gutenberg “welcomes this widespread

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sharing . . . using these software products[,] since they assist
us in meeting our objectives”); id., at 159–160, ¶ 32 (Decl.
of Sinnreich)
—Public domain and authorized software, such as WinZip
8.1. Id., at 170, ¶ 8 (Decl. of Hoekman); id., at 165, ¶¶ 4–7
(Decl. of John Busher)
—Licensed music videos and television and movie segments
distributed via digital video packaging with the permission
of the copyright holder. Id., at 70, ¶ 24 (Decl. of Sean L.
Mayers).
The nature of these and other lawfully swapped files is
such that it is reasonable to infer quantities of current lawful
use roughly approximate to those at issue in Sony. At least,
MGM has offered no evidence sufficient to survive summary
judgment that could plausibly demonstrate a significant
quantitative difference. See ante, at 922 (opinion of the
Court); see also Brief for Motion Picture Studio and Record
ing Company Petitioners i (referring to “at least 90% of the
total use of the services”); but see ante, at 947, n. 3 (Gins
burg, J., concurring). To be sure, in quantitative terms
these uses account for only a small percentage of the total
number of uses of Grokster’s product. But the same was
true in Sony, which characterized the relatively limited au
thorized copying market as “substantial.” (The Court made
clear as well in Sony that the amount of material then pres
ently available for lawful copying—if not actually copied—
was significant, see 464 U. S., at 444, and the same is cer
tainly true in this case.)
Importantly, Sony also used the word “capable,” asking
whether the product is “capable of ” substantial noninfring
ing uses. Its language and analysis suggest that a figure
like 10%, if fixed for all time, might well prove insufficient,
but that such a figure serves as an adequate foundation
where there is a reasonable prospect of expanded legitimate
uses over time. See ibid. (noting a “significant potential for
future authorized copying”). And its language also indi

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cates the appropriateness of looking to potential future uses
of the product to determine its “capability.”
Here the record reveals a significant future market for
noninfringing uses of Grokster-type peer-to-peer software.
Such software permits the exchange of any sort of digital
file—whether that file does, or does not, contain copyrighted
material. As more and more uncopyrighted information is
stored in swappable form, it seems a likely inference that
lawful peer-to-peer sharing will become increasingly preva
lent. See, e. g., App. 142, ¶ 20 (Decl. of Brewster Kahle)
(“[T]he [Internet Archive] welcomes [the] redistribution [of
authorized films] by the Morpheus-Grokster-KaZaa commu
nity of users”); id., at 166, ¶ 8 (Decl. of Busher) (sales figures
of $1,000 to $10,000 per month through peer-to-peer net
works “will increase in the future as Acoustica’s trialware
is more widely distributed through these networks”); id., at
156–163, ¶¶ 21–40 (Decl. of Sinnreich).
And that is just what is happening. Such legitimate non
infringing uses are coming to include the swapping of: re
search information (the initial purpose of many peer-to-peer
networks); public domain films (e. g., those owned by the
Prelinger Archive); historical recordings and digital educa
tional materials (e. g., those stored on the Internet Archive);
digital photos (OurPictures, for example, is starting a P2P
photo-swapping service); “shareware” and “freeware” (e. g.,
Linux and certain Windows software); secure licensed music
and movie files (Intent MediaWorks, for example, protects
licensed content sent across P2P networks); news broadcasts
past and present (the BBC Creative Archive lets users “rip,
mix and share the BBC”); user-created audio and video files
(including “podcasts” that may be distributed through P2P
software); and all manner of free “open content” works col
lected by Creative Commons (one can search for Creative
Commons material on StreamCast). See Brief for Distrib
uted Computing Industry Association as Amicus Curiae
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U. Chi. L. Rev. 183 (2004). I can find nothing in the record
that suggests that this course of events will not continue to
flow naturally as a consequence of the character of the soft
ware taken together with the foreseeable development of the
Internet and of information technology. Cf. ante, at 920
(opinion of the Court) (discussing the significant benefits of
peer-to-peer technology).
There may be other now-unforeseen noninfringing uses
that develop for peer-to-peer software, just as the home
video rental industry (unmentioned in Sony) developed for
the VCR. But the foreseeable development of such uses,
when taken together with an estimated 10% noninfringing
material, is sufficient to meet Sony’s standard. And while
Sony considered the record following a trial, there are no
facts asserted by MGM in its summary judgment filings that
lead me to believe the outcome after a trial here could
be any different. The lower courts reached the same
conclusion.
Of course, Grokster itself may not want to develop these
other noninfringing uses. But Sony’s standard seeks to pro
tect not the Groksters of this world (which in any event may
well be liable under today’s holding), but the development of
technology more generally. And Grokster’s desires in this
respect are beside the point.
II
The real question here, I believe, is not whether the record
evidence satisfies Sony. As I have interpreted the standard
set forth in that case, it does. And of the Courts of Appeals
that have considered the matter, only one has proposed inter
preting Sony more strictly than I would do—in a case where
the product might have failed under any standard. In re
Aimster Copyright Litigation, 334 F. 3d 643, 653 (CA7 2003)
(defendant “failed to show that its service is ever used for
any purpose other than to infringe” copyrights (emphasis
added)); see Matthew Bender & Co. v. West Pub. Co., 158

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F. 3d 693, 706–707 (CA2 1998) (court did not require that
noninfringing uses be “predominant,” it merely found that
they were predominant, and therefore provided no analysis
of Sony’s boundaries); but see ante, at 944, n. 1 (Ginsburg,
J., concurring); see also A&M Records, Inc. v. Napster, Inc.,
239 F. 3d 1004, 1020 (CA9 2001) (discussing Sony); Cable/
Home Communication Corp. v. Network Productions, Inc.,
902 F. 2d 829, 842–847 (CA11 1990) (same); Vault Corp. v.
Quaid Software, Ltd., 847 F. 2d 255, 262 (CA5 1988) (same);
cf. Dynacore Holdings Corp. v. U. S. Philips Corp., 363 F. 3d
1263, 1275 (CA Fed. 2004) (same); see also Doe v. GTE Corp.,
347 F. 3d 655, 661 (CA7 2003) (“A person may be liable as a
contributory infringer if the product or service it sells has
no (or only slight) legal use”).
Instead, the real question is whether we should modify the
Sony standard, as MGM requests, or interpret Sony more
strictly, as I believe Justice Ginsburg’s approach would do
in practice. Compare ante, at 944–948 (concurring opinion)
(insufficient evidence in this case of both present lawful uses
and of a reasonable prospect that substantial noninfringing
uses would develop over time), with Sony, 464 U. S., at 442–
447 (basing conclusion as to the likely existence of a substan
tial market for authorized copying upon general declarations,
some survey data, and common sense).
As I have said, Sony itself sought to “strike a balance be
tween a copyright holder’s legitimate demand for effective—
not merely symbolic—protection of the statutory monopoly,
and the rights of others freely to engage in substantially un
related areas of commerce.” Id., at 442. Thus, to deter
mine whether modification, or a strict interpretation, of Sony
is needed, I would ask whether MGM has shown that Sony
incorrectly balanced copyright and new-technology interests.
In particular: (1) Has Sony (as I interpret it) worked to pro
tect new technology? (2) If so, would modification or strict
interpretation significantly weaken that protection? (3) If

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so, would new or necessary copyright-related benefits out
weigh any such weakening?
A
The first question is the easiest to answer. Sony’s rule,
as I interpret it, has provided entrepreneurs with needed
assurance that they will be shielded from copyright liability
as they bring valuable new technologies to market.
Sony’s rule is clear. That clarity allows those who de
velop new products that are capable of substantial nonin
fringing uses to know, ex ante, that distribution of their
product will not yield massive monetary liability. At the
same time, it helps deter them from distributing products
that have no other real function than—or that are specifically
intended for—copyright infringement, deterrence that the
Court’s holding today reinforces (by adding a weapon to the
copyright holder’s legal arsenal).
Sony’s rule is strongly technology protecting. The rule
deliberately makes it difficult for courts to find secondary
liability where new technology is at issue. It establishes
that the law will not impose copyright liability upon the dis
tributors of dual-use technologies (who do not themselves en
gage in unauthorized copying) unless the product in question
will be used almost exclusively to infringe copyrights (or
unless they actively induce infringements as we today de
scribe). Sony thereby recognizes that the copyright laws
are not intended to discourage or to control the emergence
of new technologies, including (perhaps especially) those that
help disseminate information and ideas more broadly or more
efficiently. Thus Sony’s rule shelters VCRs, typewriters,
tape recorders, photocopiers, computers, cassette players,
compact disc burners, digital video recorders, MP3 players,
Internet search engines, and peer-to-peer software. But
Sony’s rule does not shelter descramblers, even if one could
theoretically use a descrambler in a noninfringing way. 464

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U. S., at 441–442. Compare Cable/Home Communication
Corp., supra, at 837–850 (developer liable for advertising
television signal descrambler), with Vault Corp., supra, at
262 (primary use infringing but a substantial noninfringing
use).
Sony’s rule is forward looking. It does not confine its
scope to a static snapshot of a product’s current uses
(thereby threatening technologies that have undeveloped fu
ture markets). Rather, as the VCR example makes clear, a
product’s market can evolve dramatically over time. And
Sony—by referring to a capacity for substantial noninfring
ing uses—recognizes that fact. Sony’s word “capable” re
fers to a plausible, not simply a theoretical, likelihood that
such uses will come to pass, and that fact anchors Sony in
practical reality. Cf. Aimster, 334 F. 3d, at 651.
Sony’s rule is mindful of the limitations facing judges
where matters of technology are concerned. Judges have
no specialized technical ability to answer questions about
present or future technological feasibilility or commercial vi
ability where technology professionals, engineers, and ven
ture capitalists themselves may radically disagree and where
answers may differ depending upon whether one focuses
upon the time of product development or the time of distri
bution. Consider, for example, the question whether de
vices can be added to Grokster’s software that will filter out
infringing files. MGM tells us this is easy enough to do, as
do several amici that produce and sell the filtering technol
ogy. See, e. g., Brief for Motion Picture Studio and Record
ing Company Petitioners 11; Brief for Audible Magic Corp.
et al. as Amici Curiae 3–10. Grokster says it is not at all
easy to do, and not an efficient solution in any event, and
several apparently disinterested computer science professors
agree. See Brief for Respondents 31; Brief for Computer
Science Professor Harold Abelson et al. as Amici Curiae
6–10, 14–18. Which account should a judge credit? Sony
says that the judge will not necessarily have to decide.

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Given the nature of the Sony rule, it is not surprising that
in the last 20 years, there have been relatively few contribu
tory infringement suits—based on a product distribution the
ory—brought against technology providers (a small hand
ful of federal appellate court cases and perhaps fewer than
two dozen District Court cases in the last 20 years). I
have found nothing in the briefs or the record that shows
that Sony has failed to achieve its innovation-protecting
objective.
B
The second, more difficult, question is whether a modified
Sony rule (or a strict interpretation) would significantly
weaken the law’s ability to protect new technology. Jus
tice Ginsburg’s approach would require defendants to
produce considerably more concrete evidence—more than
was presented here—to earn Sony’s shelter. That heavier
evidentiary demand, and especially the more dramatic (case
by-case balancing) modifications that MGM and the Govern
ment seek, would, I believe, undercut the protection that
Sony now offers.
To require defendants to provide, for example, detailed
evidence—say, business plans, profitability estimates, pro
jected technological modifications, and so forth—would
doubtless make life easier for copyright holder plaintiffs.
But it would simultaneously increase the legal uncertainty
that surrounds the creation or development of a new technol
ogy capable of being put to infringing uses. Inventors and
entrepreneurs (in the garage, the dorm room, the corporate
lab, or the boardroom) would have to fear (and in many cases
endure) costly and extensive trials when they create, pro
duce, or distribute the sort of information technology that
can be used for copyright infringement. They would often
be left guessing as to how a court, upon later review of the
product and its uses, would decide when necessarily rough
estimates amounted to sufficient evidence. They would
have no way to predict how courts would weigh the respec

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tive values of infringing and noninfringing uses; determine
the efficiency and advisability of technological changes; or
assess a product’s potential future markets. The price of a
wrong guess—even if it involves a good-faith effort to assess
technical and commercial viability—could be large statutory
damages (not less than $750 and up to $30,000 per infringed
work). 17 U. S. C. § 504(c)(1). The additional risk and un
certainty would mean a consequent additional chill of techno
logical development.
C
The third question—whether a positive copyright impact
would outweigh any technology-related loss—I find the most
difficult of the three. I do not doubt that a more intrusive
Sony test would generally provide greater revenue security
for copyright holders. But it is harder to conclude that the
gains on the copyright swings would exceed the losses on
the technology roundabouts.
For one thing, the law disfavors equating the two different
kinds of gain and loss; rather, it leans in favor of protecting
technology. As Sony itself makes clear, the producer of a
technology which permits unlawful copying does not himself
engage in unlawful copying—a fact that makes the attach
ment of copyright liability to the creation, production, or dis
tribution of the technology an exceptional thing. See 464
U. S., at 431 (courts “must be circumspect” in construing the
copyright laws to preclude distribution of new technologies).
Moreover, Sony has been the law for some time. And that
fact imposes a serious burden upon copyright holders like
MGM to show a need for change in the current rules of the
game, including a more strict interpretation of the test.
See, e. g., Brief for Motion Picture Studio and Recording
Company Petitioners 31 (Sony should not protect products
when the “primary or principal” use is infringing).
In any event, the evidence now available does not, in my
view, make out a sufficiently strong case for change. To say

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this is not to doubt the basic need to protect copyrighted
material from infringement. The Constitution itself
stresses the vital role that copyright plays in advancing the
“useful Arts.” Art. I, § 8, cl. 8. No one disputes that “re
ward to the author or artist serves to induce release to the
public of the products of his creative genius.” United States
v. Paramount Pictures, Inc., 334 U. S. 131, 158 (1948). And
deliberate unlawful copying is no less an unlawful taking of
property than garden-variety theft. See, e. g., 18 U. S. C.
§ 2319 (2000 ed. and Supp. II) (criminal copyright infringe
ment); § 1961(1)(B) (2000 ed., Supp. II) (copyright infringe
ment can be a predicate act under the Racketeer Influenced
and Corrupt Organizations Act); § 1956(c)(7)(D) (2000 ed.,
Supp. II) (money laundering includes the receipt of proceeds
from copyright infringement). But these highly general
principles cannot by themselves tell us how to balance the
interests at issue in Sony or whether Sony’s standard needs
modification. And at certain key points, information is
lacking.
Will an unmodified Sony lead to a significant diminution
in the amount or quality of creative work produced? Since
copyright’s basic objective is creation and its revenue objec
tives but a means to that end, this is the underlying copy
right question. See Twentieth Century Music Corp. v.
Aiken, 422 U. S. 151, 156 (1975) (“Creative work is to be en
couraged and rewarded, but private motivation must ulti
mately serve the cause of promoting broad public availability
of literature, music, and the other arts”). And its answer is
far from clear.
Unauthorized copying likely diminishes industry revenue,
though it is not clear by how much. Compare S. Liebowitz,
Will MP3 Downloads Annihilate the Record Industry? The
Evidence So Far 2 (June 2003), http://www.utdallas.edu/
~liebowit/intprop/records.pdf (all Internet materials as vis
ited June 24, 2005, and available in Clerk of Court’s case file)

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(file sharing has caused a decline in music sales), and Press
Release, Informa Telecoms & Media, Steady Download
Growth Defies P2P (Dec. 6, 2004), http://www.informatm.com
(citing Informa Media Group Report, Music on the Internet
(5th ed. 2004)) (estimating total lost sales to the music indus
try in the range of $2 billion annually), with F. Oberholzer
& K. Strumpf, The Effect of File Sharing on Record Sales:
An Empirical Analysis 24 (Mar. 2004), www.unc.edu/~cigar/
papers/FileSharing_March2004.pdf (academic study con
cluding that “file sharing has no statistically significant
effect on purchases of the average album”), and D. McGuire,
Study: File-Sharing No Threat to Music Sales (Mar. 29,
2004), http://www.washingtonpost.com/ac2/wp-dyn/A34300
2004Mar29?language=printer (discussing mixed evidence).
The extent to which related production has actually
and resultingly declined remains uncertain, though there
is good reason to believe that the decline, if any, is not sub
stantial. See, e. g., M. Madden, Pew Internet & Amer
ican Life Project, Artists, Musicians, and the Internet 21
(Dec. 5, 2004), http://www.pewinternet.org/pdfs/PIP_Artists.
Musicians_Report.pdf (nearly 70% of musicians believe that
file sharing is a minor threat or no threat at all to creative
industries); Benkler, Sharing Nicely: On Shareable Goods
and the Emergence of Sharing as a Modality of Economic
Production, 114 Yale L. J. 273, 351–352 (2004) (“Much of the
actual flow of revenue to artists—from performances and
other sources—is stable even assuming a complete displace
ment of the CD market by peer-to-peer distribution . . . .
[I]t would be silly to think that music, a cultural form with
out which no human society has existed, will cease to be in
our world [because of illegal file swapping]”).
More importantly, copyright holders at least potentially
have other tools available to reduce piracy and to abate
whatever threat it poses to creative production. As today’s
opinion makes clear, a copyright holder may proceed against

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Breyer, J., concurring
a technology provider where a provable specific intent to in
fringe (of the kind the Court describes) is present. Ante,
at 941. Services like Grokster may well be liable under an
inducement theory.
In addition, a copyright holder has always had the legal
authority to bring a traditional infringement suit against one
who wrongfully copies. Indeed, since September 2003, the
Recording Industry Association of America (RIAA) has filed
“thousands of suits against people for sharing copyrighted
material.” Walker, New Movement Hits Universities: Get
Legal Music, Washington Post, Mar. 17, 2005, p. E1. These
suits have provided copyright holders with damages; have
served as a teaching tool, making clear that much file shar
ing, if done without permission, is unlawful; and apparently
have had a real and significant deterrent effect. See, e. g.,
L. Rainie, M. Madden, D. Hess, & G. Mudd, Pew Internet
Project and comScore Media Metrix Data Memo: The state
of music downloading and file-sharing online 2, 4, 6, 10 (Apr.
2004), http://www.pewinternet.org/pdfs/PIP_Filesharing_
April_04.pdf (number of people downloading files fell from a
peak of roughly 35 million to roughly 23 million in the year
following the first suits; 38% of current downloaders report
downloading fewer files because of the suits); M. Madden &
L. Rainie, Pew Internet Project Data Memo: Music and video
downloading moves beyond P2P, p. 7 (Mar. 2005), http://www.
pewinternet.org/pdfs/PIP_Filesharing_March05.pdf (number
of downloaders has “inched up” but “continues to rest well
below the peak level”); Note, Costs and Benefits of the Re
cording Industry’s Litigation Against Individuals, 20 Berke
ley Tech. L. J. 571 (2005); but see Evangelista, File Sharing;
Downloading Music and Movie Files is as Popular as Ever,
San Francisco Chronicle, Mar. 28, 2005, p. E1 (referring to
the continuing “tide of rampant copyright infringement,”
while noting that the RIAA says it believes the “campaign
of lawsuits and public education has at least contained the
problem”).

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METRO-GOLDWYN-MAYER STUDIOS INC. v.
GROKSTER, LTD.
Breyer, J., concurring
Further, copyright holders may develop new technological
devices that will help curb unlawful infringement. Some
new technology, called “digital ‘watermarking’ ” and “digital
fingerprint[ing],” can encode within the file information
about the author and the copyright scope and date, which
“fingerprints” can help to expose infringers. RIAA Reveals
Method to Madness, Wired News (Aug. 28, 2003), http://
www.wired.com/news/digiwood/0,1412,60222,00.html; Besek,
Anti-Circumvention Laws and Copyright: A Report from the
Kernochan Center for Law, Media and the Arts, 27 Colum.
J. L. & Arts 385, 391, 451 (2004). Other technology can,
through encryption, potentially restrict users’ ability to
make a digital copy. See J. Borland, Tripping the Rippers,
C/net News.com (Sept. 28, 2001), http://news.com.com/
Tripping+the+rippers/2009-1023_3-273619.html; but see
Brief for Bridgemar Services, Ltd. d/ b/a iMesh.com as Ami
cus Curiae 5–8 (arguing that peer-to-peer service providers
can more easily block unlawful swapping).
At the same time, advances in technology have discour
aged unlawful copying by making lawful copying (e. g.,
downloading music with the copyright holder’s permission)
cheaper and easier to achieve. Several services now sell
music for less than $1 per song. (Walmart.com, for example,
charges $0.88 each.) Consequently, many consumers ini
tially attracted to the convenience and flexibility of serv
ices like Grokster are now migrating to lawful paid
services (services with copying permission) where they
can enjoy at little cost even greater convenience and flex
ibility without engaging in unlawful swapping. See Wu,
When Code Isn’t Law, 89 Va. L. Rev. 679, 731–735 (2003)
(noting the prevalence of technological problems on unpaid
swapping sites); K. Dean, P2P Tilts Toward Legitimacy,
Wired News (Nov. 24, 2004), http://www.wired.com/news/
digiwood/0,1412,65836,00.html; Madden & Rainie, March 2005
Data Memo, supra, at 6–8 (percentage of current download
ers who have used paid services rose from 24% to 43% in a
year; number using free services fell from 58% to 41%).

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Thus, lawful music downloading services—those that
charge the customer for downloading music and pay royalties
to the copyright holder—have continued to grow and to
produce substantial revenue. See Brief for Internet Law
Faculty as Amicus Curiae 5–20; Bruno, Digital Entertain
ment: Piracy Fight Shows Encouraging Signs (Mar. 5, 2005),
available at LEXIS, News Library, Billboard File (in 2004,
consumers worldwide purchased more than 10 times the
number of digital tracks purchased in 2003; global digital
music market of $330 million in 2004 expected to double in
2005); Press Release, Informa Telecoms & Media, Steady
Download Growth Defies P2P (global digital revenues will
likely exceed $3 billion in 2010); Ashton, [International Fed
eration of the Phonographic Industry] Predicts Downloads
Will Hit the Mainstream, Music Week, Jan. 29, 2005, p. 6
(legal music sites and portable MP3 players “are helping to
transform the digital music market” into “an everyday con
sumer experience”). And more advanced types of non
music-oriented peer-to-peer networks have also started to
develop, drawing in part on the lessons of Grokster.
Finally, as Sony recognized, the legislative option remains
available. Courts are less well suited than Congress to the
task of “accommodat[ing] fully the varied permutations of
competing interests that are inevitably implicated by such
new technology.” Sony, 464 U. S., at 431; see, e. g., Audio
Home Recording Act of 1992, 106 Stat. 4237 (adding 17
U. S. C., ch. 10); Protecting Innovation and Art While Pre
venting Piracy: Hearing before the Senate Committee on the
Judiciary, 108th Cong., 2d Sess. (2004).
I do not know whether these developments and similar
alternatives will prove sufficient, but I am reasonably certain
that, given their existence, a strong demonstrated need for
modifying Sony (or for interpreting Sony’s standard more
strictly) has not yet been shown. That fact, along with the
added risks that modification (or strict interpretation) would
impose upon technological innovation, leads me to the conclu
sion that we should maintain Sony, reading its standard as I

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Breyer, J., concurring
have read it. As so read, it requires affirmance of the Ninth
Circuit’s determination of the relevant aspects of the Sony
question.
* * *
For these reasons, I disagree with Justice Ginsburg, but
I agree with the Court and join its opinion.

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Syllabus
NATIONAL CABLE & TELECOMMUNICATIONS
ASSOCIATION et al. v. BRAND X INTERNET
SERVICES et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 04–277. Argued March 29, 2005—Decided June 27, 2005*
Consumers traditionally access the Internet through “dial-up” connections
provided via local telephone lines. Internet service providers (ISPs),
in turn, link those calls to the Internet network, not only by providing
a physical connection, but also by offering consumers the ability to
translate raw data into information they may both view on their own
computers and transmit to others connected to the Internet. Techno
logical limitations of local telephone wires, however, retard the speed at
which Internet data may be transmitted through such “narrowband”
connections. “Broadband” Internet service, by contrast, transmits data
at much higher speeds. There are two principal kinds of broadband
service: cable modem service, which transmits data between the In
ternet and users’ computers via the network of television cable lines
owned by cable companies, and Digital Subscriber Line (DSL) service,
which uses high-speed wires owned by local telephone companies.
Other ways of transmitting high-speed Internet data, including
terrestrial- and satellite-based wireless networks, are also emerging.
The Communications Act of 1934, as amended by the Telecommunica
tions Act of 1996, defines two categories of entities relevant here. “In
formation service” providers—those “offering . . . a capability for [proc
essing] information via telecommunications,” 47 U. S. C. § 153(20)—are
not subject to mandatory regulation by the Federal Communications
Commission as common carriers under Title II of the Act. Conversely,
telecommunications carriers—i. e., those “offering . . . telecommunica
tions for a fee directly to the public . . . regardless of the facilities used,”
§ 153(46)—are subject to mandatory Title II regulation. These two
classifications originated in the late 1970’s, as the Commission developed
rules to regulate data-processing services offered over telephone wires.
Regulated “telecommunications service” under the 1996 Act is the ana
log to “basic service” under the prior regime, the Computer II rules.
*Together with No. 04–281, Federal Communications Commission
et al. v. Brand X Internet Services et al., also on certiorari to the same
court.

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Those rules defined such service as a “pure” or “transparent” transmis
sion capability over a communications path enabling the consumer to
transmit an ordinary-language message to another point without com
puter processing or storage of the information, such as via a telephone
or a facsimile. Under the 1996 Act, “[i]nformation service” is the analog
to “enhanced” service, defined by the Computer II rules as computer
processing applications that act on the subscriber’s information, such as
voice and data storage services, as well as “protocol conversion,” i. e.,
the ability to communicate between networks that employ different
data-transmission formats.
In the Declaratory Ruling under review, the Commission classified
broadband cable modem service as an “information service” but not a
“telecommunications service” under the 1996 Act, so that it is not sub
ject to mandatory Title II common-carrier regulation. The Commission
relied heavily on its Universal Service Report, which earlier classified
“non-facilities-based” ISPs—those that do not own the transmission
facilities they use to connect the end user to the Internet—solely as
information-service providers. Because Internet access is a capability
for manipulating and storing information, the Commission concluded, it
was an “information service.” However, the integrated nature of such
access and the high-speed wire used to provide it led the Commission to
conclude that cable companies providing it are not “telecommunications
service” providers. Adopting the Universal Service Report’s reason
ing, the Commission held that cable companies offering broadband In
ternet access, like non-facilities-based ISPs, do not offer the end user
telecommunications service, but merely use telecommunications to pro
vide end users with cable modem service.
Numerous parties petitioned for review. By judicial lottery, the
Court of Appeals for the Ninth Circuit was selected as the venue for
the challenge. That court granted the petitions in part, vacated the
Declaratory Ruling in part, and remanded for further proceedings. In
particular, the court held that the Commission could not permissibly
construe the Communications Act to exempt cable companies providing
cable modem service from mandatory Title II regulation. Rather than
analyzing the permissibility of that construction under the deferential
framework of Chevron U. S. A. Inc. v. Natural Resources Defense Coun
cil, Inc., 467 U. S. 837, however, the court grounded that holding in the
stare decisis effect of its decision in AT&T Corp. v. Portland, 216 F. 3d
871, which had held that cable modem service is a “telecommunications
service.”
Held: The Commission’s conclusion that broadband cable modem compa
nies are exempt from mandatory common-carrier regulation is a lawful

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construction of the Communications Act under Chevron and the Admin
istrative Procedure Act. Pp. 980–1003.
1. Chevron’s framework applies to the Commission’s interpretation of
“telecommunications service.” Pp. 980–986.
(a) Chevron governs this Court’s review of the Commission’s con
struction. See, e. g., National Cable & Telecommunications Assn.,
Inc. v. Gulf Power Co., 534 U. S. 327, 333–339. Chevron requires a fed
eral court to defer to an agency’s construction, even if it differs from
what the court believes to be the best interpretation, if the particular
statute is within the agency’s jurisdiction to administer, the statute is
ambiguous on the point at issue, and the agency’s construction is reason
able. 467 U. S., at 843–844, and n. 11, 865–866. The Commission’s stat
utory authority to “execute and enforce” the Communications Act, § 151,
and to “prescribe such rules and regulations as may be necessary . . . to
carry out the [Act’s] provisions,” § 201(b), give the Commission power to
promulgate binding legal rules; the Commission issued the order under
review in the exercise of that authority; and there is no dispute that the
order is within the Commission’s jurisdiction. Pp. 980–982.
(b) The Ninth Circuit should have applied Chevron’s framework,
instead of following the contrary construction it adopted in Portland.
A court’s prior construction of a statute trumps an agency construction
otherwise entitled to Chevron deference only if the prior court decision
holds that its construction follows from the unambiguous terms of the
statute and thus leaves no room for agency discretion. See Smiley v.
Citibank (South Dakota), N. A., 517 U. S. 735, 740–741. Because Port
land held only that the best reading of § 153(46) was that cable modem
service was “telecommunications service,” not that this was the only
permissible reading or that the Communications Act unambiguously
required it, the Ninth Circuit erred in refusing to apply Chevron.
Pp. 982–986.
2. The Commission’s construction of § 153(46)’s “telecommunications
service” definition is a permissible reading of the Communications Act
at both steps of Chevron’s test. Pp. 986–1000.
(a) For the Commission, the question whether cable companies pro
viding cable modem service “offe[r] ” telecommunications within
§ 153(46)’s meaning turned on the nature of the functions offered the end
user. Seen from the consumer’s point of view, the Commission con
cluded, the cable wire is used to access the World Wide Web, news
groups, etc., rather than “transparently” to transmit and receive
ordinary-language messages without computer processing or storage of
the message. The integrated character of this offering led the Commis
sion to conclude that cable companies do not make a stand-alone, trans
parent offering of telecommunications. Pp. 986–988.

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(b) The Commission’s construction of § 153(46) is permissible at
Chevron’s first step, which asks whether the statute’s plain terms “di
rectly addres[s] the precise question at issue.” 467 U. S., at 843. This
conclusion follows both from the ordinary meaning of “offering” and the
Communications Act’s regulatory history. Pp. 989–997.
(1) Where a statute’s plain terms admit of two or more reason
able ordinary usages, the Commission’s choice of one of them is entitled
to deference. See, e. g., Verizon Communications Inc. v. FCC, 535
U. S. 467, 498. It is common usage to describe what a company “offers”
to a consumer as what the consumer perceives to be the integrated
finished product, even to the exclusion of discrete components that
compose the product. What cable companies providing cable modem
service “offer” is finished Internet service, though they do so using
the discrete components composing the end product, including data
transmission. Such functionally integrated components need not be de
scribed as distinct “offerings.” Pp. 989–992.
(2) The Commission’s traditional distinction between basic and
enhanced service also supports the conclusion that the Communications
Act is ambiguous about whether cable companies “offer” telecommunica
tions with cable modem service. Congress passed the Act’s definitions
against the background of this regulatory history, and it may be as
sumed that the parallel terms “telecommunications service” and “infor
mation service” substantially incorporated the meaning of “basic” and
“enhanced” service. That history in at least two respects confirms that
the term “telecommunications service” is ambiguous. First, in the
Computer II order establishing the terms “basic” and “enhanced” serv
ices, the Commission defined those terms functionally, based on how the
consumer interacts with the provided information, just as the Commis
sion did in the order under review. Cable modem service is not “trans
parent” in terms of its interaction with customer-supplied information;
the transmission occurs only in connection with information processing.
It was therefore consistent with the statute’s terms for the Commission
to assume that the parallel term “telecommunications service” in
§ 153(46) likewise describes a “pure” or “transparent” communications
path not necessarily separately present in an integrated information
processing service from the end user’s perspective. Second, the
Commission’s application of the basic/enhanced service distinction to
non-facilities-based ISPs also supports the Court’s conclusion. The
Commission has historically not subjected non-facilities-based
information-service providers to common-carrier regulation. That his
tory suggests, in turn, that the Act does not unambiguously classify
non-facilities-based ISPs as “offerors” of telecommunications. If the
Act does not unambiguously classify such providers as “offering tele

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communications,” it also does not unambiguously so classify facilities
based information-service providers such as cable companies; the rele
vant definitions do not distinguish the two types of carriers. The Act’s
silence suggests, instead, that the Commission has the discretion to fill
the statutory gap. Pp. 992–997.
(c) The Commission’s interpretation is also permissible at Chev
ron’s step two because it is “a reasonable policy choice for the agency
to make,” 467 U. S., at 845. Respondents argue unpersuasively that the
Commission’s construction is unreasonable because it allows any com
munications provider to evade common-carrier regulation simply by
bundling information service with telecommunications. That result
does not follow from the interpretation adopted in the Declaratory Rul
ing. The Commission classified cable modem service solely as an infor
mation service because the telecommunications input used to provide
cable modem service is not separable from the service’s data-processing
capabilities, but is part and parcel of that service and integral to its
other capabilities, and therefore is not a telecommunications offering.
This construction does not leave all information-service offerings unreg
ulated under Title II. It is plain, for example, that a local telephone
company cannot escape regulation by packaging its telephone service
with voice mail because such packaging offers a transparent transmis
sion path—telephone service—that transmits information independent
of the information-storage capabilities voice mail provides. By con
trast, the high-speed transmission used to provide cable modem service
is a functionally integrated component of Internet service because it
transmits data only in connection with the further processing of infor
mation and is necessary to provide such service. The Commission’s
construction therefore was more limited than respondents assume.
Respondents’ argument that cable modem service does, in fact, pro
vide “transparent” transmission from the consumer’s perspective is also
mistaken. Their characterization of the “information-service” offering
of Internet access as consisting only of access to a cable company’s
e-mail service, its Web page, and the ability it provides to create a per
sonal Web page conflicts with the Commission’s reasonable understand
ing of the nature of Internet service. When an end user accesses a
third party’s Web site, the Commission concluded, he is equally using
the information service provided by the cable company as when he ac
cesses that company’s own Web site, its e-mail service, or his personal
Web page. As the Commission recognized, the service that Internet
access providers offer the public is Internet access, not a transpar
ent ability (from the end user’s perspective) to transmit information.
Pp. 997–1000.

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3. The Court rejects respondent MCI, Inc.’s argument that the Com
mission’s treatment of cable modem service is inconsistent with its treat
ment of DSL service and is therefore an arbitrary and capricious
deviation from agency policy under the Administrative Procedure Act,
see 5 U. S. C. § 706(2)(A). MCI points out that when local telephone
companies began to offer Internet access through DSL technology, the
Commission required them to make the telephone lines used to provide
DSL available to competing ISPs on nondiscriminatory, common-carrier
terms. Respondents claim that the Commission has not adequately ex
plained its decision not to regulate cable companies similarly.
The Court thinks that the Commission has provided a reasoned expla
nation for this decision. The traditional reason for its Computer II
common-carrier treatment of facilities-based carriers was that the tele
phone network was the primary, if not the exclusive, means through
which information-service providers could gain access to their custom
ers. The Commission applied the same treatment to DSL service based
on that history, rather than on an analysis of contemporaneous market
conditions. The Commission’s Declaratory Ruling, by contrast, con
cluded that changed market conditions warrant different treatment of
cable modem service. Unlike at the time of the DSL order, substitute
forms of Internet transmission exist today, including wireline, cable, ter
restrial wireless, and satellite. The Commission therefore concluded
that broadband services should exist in a minimal regulatory environ
ment that promotes investment and innovation in a competitive market.
There is nothing arbitrary or capricious about applying a fresh analysis
to the cable industry. Pp. 1000–1002.
345 F. 3d 1120, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Kennedy, and Breyer, JJ., joined. Ste
vens, J., post, p. 1003, and Breyer, J., post, p. 1003, filed concurring opin
ions. Scalia, J., filed a dissenting opinion, in which Souter and Gins
burg, JJ., joined as to Part I, post, p. 1005.
Paul T. Cappuccio argued the cause for petitioners in
No. 04–277. With him on the briefs were Howard J.
Symons, Tara M. Corvo, Paul Glist, John D. Seiver, David
E. Mills, Daniel L. Brenner, Neal M. Goldberg, Michael
S. Schooler, Edward J. Weiss, and Henk Brands.
Deputy Solicitor General Hungar argued the cause for
federal petitioners in No. 04–281. With him on the briefs
were Acting Solicitor General Clement, Assistant Attorney

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General Pate, Deputy Assistant Attorney General Del
rahim, James A. Feldman, Catherine G. O’Sullivan, Nancy
C. Garrison, John A. Rogovin, Austin C. Schlick, Daniel M.
Armstrong, Jacob M. Lewis, and Nandan M. Joshi.
Thomas C. Goldstein argued the cause for respondents in
both cases. With him on the brief were Amy Howe, John
W. Butler, Earl W. Comstock, Alison B. Macdonald, Harvey
L. Re i te r, Ma t thew J. Ve rschelden, and Andrew Jay
Schwartzman. William H. Sorrell, Attorney General of
Vermont, David Borsykowsky, Assistant Attorney General,
and Ellen S. LeVine filed a brief in both cases for respond
ents State of Vermont et al. Michael K. Kellogg, Sean A.
Lev, and James G. Harralson filed a brief in both cases for
respondents BellSouth et al. Andrew G. McBride, Eve
Klindera Reed, William P. Barr, Michael E. Glover, Edward
Shakin, and John P. Frantz filed a brief in both cases for
respondents Verizon Telephone Companies et al. Mark D.
Schneider, Marc A. Goldman, and Jeffrey A. Rackow filed a
brief in both cases for respondent MCI, Inc.†
Justice Thomas delivered the opinion of the Court.
Title II of the Communications Act of 1934, 48 Stat. 1064,
as amended, 47 U. S. C. § 151 et seq., subjects all providers
of “telecommunications servic[e]” to mandatory common
carrier regulation, § 153(44). In the order under review, the
†Briefs of amici curiae urging reversal in both cases were filed for
the Telecommunications Industry Association by Colleen L. Boothby and
Andrew M. Brown; and for the Washington Legal Foundation by Daniel
J. Popeo and David Price.
Briefs of amici curiae urging affirmance in both cases were filed for the
State of New Jersey, Board of Public Utilities, by Peter C. Harvey, Attor
ney General of New Jersey, Andrea M. Silkowitz, Assistant Attorney Gen
eral, and Kenneth J. Sheehan, Deputy Attorney General; for AARP et al.
by Stacy Canan and Michael Schuster; for the American Civil Liberties
Union et al. by Steven R. Shapiro, Christopher A. Hansen, Jennifer Stisa
Granick, and Marjorie Heins; and for the National Association of Regula
tory Utility Commissioners by James Bradford Ramsay.

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Federal Communications Commission concluded that cable
companies that sell broadband Internet service do not pro
vide “telecommunications servic[e]” as the Communications
Act defines that term, and hence are exempt from mandatory
common-carrier regulation under Title II. We must decide
whether that conclusion is a lawful construction of the Com
munications Act under Chevron U. S. A. Inc. v. Natural Re
sources Defense Council, Inc., 467 U. S. 837 (1984), and the
Administrative Procedure Act, 5 U. S. C. § 551 et seq. We
hold that it is.
I
The traditional means by which consumers in the United
States access the network of interconnected computers that
make up the Internet is through “dial-up” connections pro
vided over local telephone facilities. See 345 F. 3d 1120,
1123–1124 (CA9 2003) (cases below); In re Inquiry Concern
ing High-Speed Access to the Internet Over Cable and Other
Facilities, 17 FCC Rcd. 4798, 4802–4803, ¶ 9 (2002) (herein
after Declaratory Ruling). Using these connections, con
sumers access the Internet by making calls with computer
modems through the telephone wires owned by local phone
companies. See Verizon Communications Inc. v. FCC, 535
U. S. 467, 489–490 (2002) (describing the physical structure
of a local telephone exchange). Internet service providers
(ISPs), in turn, link those calls to the Internet network, not
only by providing a physical connection, but also by offering
consumers the ability to translate raw Internet data into in
formation they may both view on their personal computers
and transmit to other computers connected to the Internet.
See In re Federal-State Joint Board on Universal Service,
13 FCC Rcd. 11501, 11531, ¶ 63 (1998) (hereinafter Univer
sal Service Report or Report); P. Huber, M. Kellogg, & J.
Thorne, Federal Telecommunications Law 988 (2d ed. 1999)
(hereinafter Huber); 345 F. 3d, at 1123–1124. Technological
limitations of local telephone wires, however, retard the
speed at which data from the Internet may be transmitted

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through end users’ dial-up connections. Dial-up connections
are therefore known as “narrowband,” or slower speed,
connections.
“Broadband” Internet service, by contrast, transmits data
at much higher speeds. There are two principal kinds of
broadband Internet service: cable modem service and Digi
tal Subscriber Line (DSL) service. Cable modem service
transmits data between the Internet and users’ computers
via the network of television cable lines owned by cable com
panies. See id., at 1124. DSL service provides high-speed
access using the local telephone wires owned by local tele
phone companies. See WorldCom, Inc. v. FCC, 246 F. 3d
690, 692 (CADC 2001) (describing DSL technology). Cable
companies and telephone companies can either provide In
ternet access directly to consumers, thus acting as ISPs
themselves, or can lease their transmission facilities to in
dependent ISPs that then use the facilities to provide con
sumers with Internet access. Other ways of transmitting
high-speed Internet data into homes, including terrestrial
and satellite-based wireless networks, are also emerging.
Declaratory Ruling 4802, ¶ 6.
II
At issue in these cases is the proper regulatory classifica
tion under the Communications Act of broadband cable In
ternet service. The Act, as amended by the Telecommunica
tions Act of 1996, 110 Stat. 56, defines two categories of
regulated entities relevant to these cases: telecommunica
tions carriers and information-service providers. The Act
regulates telecommunications carriers, but not information
service providers, as common carriers. Telecommunications
carriers, for example, must charge just and reasonable, non
discriminatory rates to their customers, 47 U. S. C. §§ 201–
209, design their systems so that other carriers can intercon
nect with their communications networks, § 251(a)(1), and
contribute to the federal “universal service” fund, § 254(d).

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These provisions are mandatory, but the Commission must
forbear from applying them if it determines that the pub
lic interest requires it. §§ 160(a), (b). Information-service
providers, by contrast, are not subject to mandatory
common-carrier regulation under Title II, though the Com
mission has jurisdiction to impose additional regulatory ob
ligations under its Title I ancillary jurisdiction to regulate
interstate and foreign communications, see §§ 151–161.
These two statutory classifications originated in the late
1970’s, as the Commission developed rules to regulate data
processing services offered over telephone wires. That re
gime, the “Computer II” rules, distinguished between
“basic” service (like telephone service) and “enhanced” serv
ice (computer-processing service offered over telephone
lines). In re Amendment of Section 64.702 of the Commis
sion’s Rules and Regulations (Second Computer Inquiry),
77 F. C. C. 2d 384, 417–423, ¶¶ 86–101 (1980) (hereinafter
Computer II Order). The Computer II rules defined both
basic and enhanced services by reference to how the con
sumer perceives the service being offered.
In particular, the Commission defined “basic service” as
“a pure transmission capability over a communications path
that is virtually transparent in terms of its interaction with
customer supplied information.” Id., at 420, ¶ 96. By
“pure” or “transparent” transmission, the Commission meant
a communications path that enabled the consumer to trans
mit an ordinary-language message to another point, with no
computer processing or storage of the information, other
than the processing or storage needed to convert the mes
sage into electronic form and then back into ordinary lan
guage for purposes of transmitting it over the network—
such as via a telephone or a facsimile. Id., at 419–420,
¶¶ 94–95. Basic service was subject to common-carrier reg
ulation. Id., at 428, ¶ 114.
“[E]nhanced service,” however, was service in which
“computer processing applications [were] used to act on the

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content, code, protocol, and other aspects of the subscriber’s
information,” such as voice and data storage services, id., at
420–421, ¶ 97, as well as “protocol conversion” (i. e., ability
to communicate between networks that employ different
data-transmission formats), id., at 421–422, ¶ 99. By con
trast to basic service, the Commission decided not to subject
providers of enhanced service, even enhanced service offered
via transmission wires, to Title II common-carrier regula
tion. Id., at 428–432, ¶¶ 115–123. The Commission ex
plained that it was unwise to subject enhanced service to
common-carrier regulation given the “fast-moving, competi
tive market” in which they were offered. Id., at 434, ¶ 129.
The definitions of the terms “telecommunications service”
and “information service” established by the 1996 Act are
similar to the Computer II basic- and enhanced-service clas
sifications. “Telecommunications service”—the analog to
basic service—is “the offering of telecommunications for a
fee directly to the public . . . regardless of the facilities used.”
47 U. S. C. § 153(46). “Telecommunications” is “the trans
mission, between or among points specified by the user, of
information of the user’s choosing, without change in the
form or content of the information as sent and received.”
§ 153(43). “Telecommunications carrier[s]”—those sub
jected to mandatory Title II common-carrier regulation—are
defined as “provider[s] of telecommunications services.”
§ 153(44). And “information service”—the analog to en
hanced service—is “the offering of a capability for generat
ing, acquiring, storing, transforming, processing, retrieving,
utilizing, or making available information via telecommu
nications . . . .” § 153(20).
In September 2000, the Commission initiated a rulemaking
proceeding to, among other things, apply these classifications
to cable companies that offer broadband Internet service di
rectly to consumers. In March 2002, that rulemaking culmi
nated in the Declaratory Ruling under review in these
cases. In the Declaratory Ruling, the Commission con

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cluded that broadband Internet service provided by cable
companies is an “information service” but not a “telecommu
nications service” under the Act, and therefore not subject
to mandatory Title II common-carrier regulation. In sup
port of this conclusion, the Commission relied heavily on its
Universal Service Report. See Declaratory Ruling 4821–
4822, ¶¶ 36–37 (citing Universal Service Report). The Uni
versal Service Report classified “non-facilities-based” ISPs—
those that do not own the transmission facilities they use to
connect the end user to the Internet—solely as information
service providers. See Universal Service Report 11533,
¶ 67. Unlike those ISPs, cable companies own the cable
lines they use to provide Internet access. Nevertheless, in
the Declaratory Ruling, the Commission found no basis in
the statutory definitions for treating cable companies dif
ferently from non-facilities-based ISPs: Both offer “a single,
integrated service that enables the subscriber to utilize
Internet access service . . . and to realize the benefits
of a comprehensive service offering.” Declaratory Ruling
4823, ¶ 38. Because Internet access provides a capability
for manipulating and storing information, the Commission
concluded that it was an information service. Ibid.
The integrated nature of Internet access and the high
speed wire used to provide Internet access led the Commis
sion to conclude that cable companies providing Internet ac
cess are not telecommunications providers. This conclusion,
the Commission reasoned, followed from the logic of the Uni
versal Service Report. The Report had concluded that,
though Internet service “involves data transport elements”
because “an Internet access provider must enable the move
ment of information between customers’ own computers and
distant computers with which those customers seek to inter
act,” it also “offers end users information-service capabilities
inextricably intertwined with data transport.” Universal
Service Report 11539–11540, ¶ 80. ISPs, therefore, were not
“offering . . . telecommunications . . . directly to the public,”

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§ 153(46), and so were not properly classified as telecommuni
cations carriers, see id., at 11540, ¶ 81. In other words, the
Commission reasoned that consumers use their cable mo
dems not to transmit information “transparently,” such as by
using a telephone, but instead to obtain Internet access.
The Commission applied this same reasoning to cable com
panies offering broadband Internet access. Its logic was
that, like non-facilities-based ISPs, cable companies do not
“offe[r] telecommunications service to the end user, but
rather . . . merely us[e] telecommunications to provide end
users with cable modem service.” Declaratory Ruling
4824, ¶ 41. Though the Commission declined to apply man
datory Title II common-carrier regulation to cable compa
nies, it invited comment on whether under its Title I jurisdic
tion it should require cable companies to offer other ISPs
access to their facilities on common-carrier terms. Id., at
4839, ¶ 72. Numerous parties petitioned for judicial review,
challenging the Commission’s conclusion that cable modem
service was not telecommunications service. By judicial lot
tery, the Court of Appeals for the Ninth Circuit was selected
as the venue for the challenge.
The Court of Appeals granted the petitions in part, va
cated the Declaratory Ruling in part, and remanded to the
Commission for further proceedings. In particular, the
Court of Appeals vacated the ruling to the extent it con
cluded that cable modem service was not “telecommunica
tions service” under the Communications Act. It held that
the Commission could not permissibly construe the Commu
nications Act to exempt cable companies providing Internet
service from Title II regulation. See 345 F. 3d, at 1132.
Rather than analyzing the permissibility of that construction
under the deferential framework of Chevron, 467 U. S. 837,
however, the Court of Appeals grounded its holding in the
stare decisis effect of AT&T Corp. v. Portland, 216 F. 3d 871
(CA9 2000). See 345 F. 3d, at 1128–1132. Portland held
that cable modem service was a “telecommunications serv

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ice,” though the court in that case was not reviewing an ad
ministrative proceeding and the Commission was not a party
to the case. See 216 F. 3d, at 877–880. Nevertheless, Port
land’s holding, the Court of Appeals reasoned, overrode the
contrary interpretation reached by the Commission in the
Declaratory Ruling. See 345 F. 3d, at 1130–1131.
We granted certiorari to settle the important questions of
federal law that these cases present. 543 U. S. 1018 (2004).
III
We first consider whether we should apply Chevron’s
framework to the Commission’s interpretation of the term
“telecommunications service.” We conclude that we should.
We also conclude that the Court of Appeals should have done
the same, instead of following the contrary construction it
adopted in Portland.
A
In Chevron, this Court held that ambiguities in statutes
within an agency’s jurisdiction to administer are delegations
of authority to the agency to fill the statutory gap in rea
sonable fashion. Filling these gaps, the Court explained,
involves difficult policy choices that agencies are better
equipped to make than courts. 467 U. S., at 865–866. If a
statute is ambiguous, and if the implementing agency’s con
struction is reasonable, Chevron requires a federal court to
accept the agency’s construction of the statute, even if the
agency’s reading differs from what the court believes is the
best statutory interpretation. Id., at 843–844, and n. 11.
The Chevron framework governs our review of the Com
mission’s construction. Congress has delegated to the Com
mission the authority to “execute and enforce” the Commu
nications Act, § 151, and to “prescribe such rules and
regulations as may be necessary in the public interest to
carry out the provisions” of the Act, § 201(b); AT&T Corp.
v. Iowa Utilities Bd., 525 U. S. 366, 377–378 (1999). These
provisions give the Commission the authority to promulgate

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binding legal rules; the Commission issued the order under
review in the exercise of that authority; and no one questions
that the order is within the Commission’s jurisdiction. See
Household Credit Services, Inc. v. Pfennig, 541 U. S. 232,
238–239 (2004); United States v. Mead Corp., 533 U. S. 218,
231–234 (2001); Christensen v. Harris County, 529 U. S. 576,
586–588 (2000). Hence, as we have in the past, we apply the
Chevron framework to the Commission’s interpretation of
the Communications Act. See National Cable & Telecom
munications Assn., Inc. v. Gulf Power Co., 534 U. S. 327,
333–339 (2002); Verizon, 535 U. S., at 501–502.
Some of the respondents dispute this conclusion, on the
ground that the Commission’s interpretation is inconsistent
with its past practice. We reject this argument. Agency
inconsistency is not a basis for declining to analyze the
agency’s interpretation under the Chevron framework. Un
explained inconsistency is, at most, a reason for holding an
interpretation to be an arbitrary and capricious change from
agency practice under the Administrative Procedure Act.
See Motor Vehicle Mfrs. Assn. of United States, Inc. v. State
Farm Mut. Automobile Ins. Co., 463 U. S. 29, 46–57 (1983).
For if the agency adequately explains the reasons for a rever
sal of policy, “change is not invalidating, since the whole
point of Chevron is to leave the discretion provided by the
ambiguities of a statute with the implementing agency.”
Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742
(1996); see also Rust v. Sullivan, 500 U. S. 173, 186–187
(1991); Barnhart v. Walton, 535 U. S. 212, 226 (2002) (Scalia,
J., concurring in part and concurring in judgment). “An ini
tial agency interpretation is not instantly carved in stone.
On the contrary, the agency . . . must consider varying inter
pretations and the wisdom of its policy on a continuing
basis,” Chevron, supra, at 863–864, for example, in response
to changed factual circumstances, or a change in administra
tions, see State Farm, supra, at 59 (Rehnquist, J., concur
ring in part and dissenting in part). That is no doubt why

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in Chevron itself, this Court deferred to an agency interpre
tation that was a recent reversal of agency policy. See 467
U. S., at 857–858. We therefore have no difficulty conclud
ing that Chevron applies.
B
The Court of Appeals declined to apply Chevron because
it thought the Commission’s interpretation of the Communi
cations Act foreclosed by the conflicting construction of the
Act it had adopted in Portland. See 345 F. 3d, at 1127–1132.
It based that holding on the assumption that Portland’s con
struction overrode the Commission’s, regardless of whether
Portland had held the statute to be unambiguous. 345 F.
3d, at 1131. That reasoning was incorrect.
A court’s prior judicial construction of a statute trumps an
agency construction otherwise entitled to Chevron deference
only if the prior court decision holds that its construction
follows from the unambiguous terms of the statute and thus
leaves no room for agency discretion. This principle follows
from Chevron itself. Chevron established a “presumption
that Congress, when it left ambiguity in a statute meant for
implementation by an agency, understood that the ambiguity
would be resolved, first and foremost, by the agency, and
desired the agency (rather than the courts) to possess what
ever degree of discretion the ambiguity allows.” Smiley,
supra, at 740–741. Yet allowing a judicial precedent to fore
close an agency from interpreting an ambiguous statute, as
the Court of Appeals assumed it could, would allow a court’s
interpretation to override an agency’s. Chevron’s premise
is that it is for agencies, not courts, to fill statutory gaps.
See 467 U. S., at 843–844, and n. 11. The better rule is to
hold judicial interpretations contained in precedents to the
same demanding Chevron step one standard that applies if
the court is reviewing the agency’s construction on a blank
slate: Only a judicial precedent holding that the statute

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unambiguously forecloses the agency’s interpretation, and
therefore contains no gap for the agency to fill, displaces a
conflicting agency construction.
A contrary rule would produce anomalous results. It
would mean that whether an agency’s interpretation of an
ambiguous statute is entitled to Chevron deference would
turn on the order in which the interpretations issue: If the
court’s construction came first, its construction would pre
vail, whereas if the agency’s came first, the agency’s con
struction would command Chevron deference. Yet whether
Congress has delegated to an agency the authority to inter
pret a statute does not depend on the order in which the
judicial and administrative constructions occur. The Court
of Appeals’ rule, moreover, would “lead to the ossification of
large portions of our statutory law,” Mead, 533 U. S., at 247
(Scalia, J., dissenting), by precluding agencies from revising
unwise judicial constructions of ambiguous statutes. Nei
ther Chevron nor the doctrine of stare decisis requires these
haphazard results.
The dissent answers that allowing an agency to override
what a court believes to be the best interpretation of a stat
ute makes “judicial decisions subject to reversal by execu
tive officers.” Post, at 1016 (opinion of Scalia, J.). It does
not. Since Chevron teaches that a court’s opinion as to the
best reading of an ambiguous statute an agency is charged
with administering is not authoritative, the agency’s decision
to construe that statute differently from a court does not
say that the court’s holding was legally wrong. Instead, the
agency may, consistent with the court’s holding, choose a dif
ferent construction, since the agency remains the authorita
tive interpreter (within the limits of reason) of such statutes.
In all other respects, the court’s prior ruling remains binding
law (for example, as to agency interpretations to which Chev
ron is inapplicable). The precedent has not been “reversed”
by the agency, any more than a federal court’s interpretation
of a State’s law can be said to have been “reversed” by a

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state court that adopts a conflicting (yet authoritative) inter
pretation of state law.
The Court of Appeals derived a contrary rule from a mis
taken reading of this Court’s decisions. It read Neal v.
United States, 516 U. S. 284 (1996), to establish that a prior
judicial construction of a statute categorically controls an
agency’s contrary construction. 345 F. 3d, at 1131–1132; see
also post, at 1016, n. 11 (Scalia, J., dissenting). Neal es
tablished no such proposition. Neal declined to defer to a
construction adopted by the United States Sentencing Com
mission that conflicted with one the Court previously had
adopted in Chapman v. United States, 500 U. S. 453 (1991).
Neal, supra, at 290–295. Chapman, however, had held the
relevant statute to be unambiguous. See 500 U. S., at 463
(declining to apply the rule of lenity given the statute’s clear
language). Thus, Neal established only that a precedent
holding a statute to be unambiguous forecloses a contrary
agency construction. That limited holding accorded with
this Court’s prior decisions, which had held that a court’s
interpretation of a statute trumps an agency’s under the doc
trine of stare decisis only if the prior court holding “deter
mined a statute’s clear meaning.” Maislin Industries, U. S.,
Inc. v. Primary Steel, Inc., 497 U. S. 116, 131 (1990) (em
phasis added); see also Lechmere, Inc. v. NLRB, 502 U. S.
527, 536–537 (1992). Those decisions allow a court’s prior
interpretation of a statute to override an agency’s interpre
tation only if the relevant court decision held the statute
unambiguous.
Against this background, the Court of Appeals erred in
refusing to apply Chevron to the Commission’s interpreta
tion of the definition of “telecommunications service,” 47
U. S. C. § 153(46). Its prior decision in Portland held only
that the best reading of § 153(46) was that cable modem serv
ice was a “telecommunications service,” not that it was the
only permissible reading of the statute. See 216 F. 3d, at
877–880. Nothing in Portland held that the Communica

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tions Act unambiguously required treating cable Internet
providers as telecommunications carriers. Instead, the
court noted that it was “not presented with a case involving
potential deference to an administrative agency’s statutory
construction pursuant to the Chevron doctrine,” id., at 876;
and the court invoked no other rule of construction (such as
the rule of lenity) requiring it to conclude that the statute
was unambiguous to reach its judgment. Before a judicial
construction of a statute, whether contained in a precedent
or not, may trump an agency’s, the court must hold that
the statute unambiguously requires the court’s construction.
Portland did not do so.
As the dissent points out, it is not logically necessary for
us to reach the question whether the Court of Appeals mis
applied Chevron for us to decide whether the Commission
acted lawfully. See post, at 1019–1020 (opinion of Scalia,
J.). Nevertheless, it is no “great mystery” why we are
reaching the point here. Post, at 1019. There is genuine
confusion in the lower courts over the interaction between
the Chevron doctrine and stare decisis principles, as the peti
tioners informed us at the certiorari stage of this litigation.
See Pet. for Cert. of Federal Communications Commission
et al. in No. 04–281, pp. 19–23; Pet. for Cert. of National
Cable & Telecomm. Assn. et al. in No. 04–277, pp. 22–29.
The point has been briefed. See Brief for Federal Petition
ers 38–44; Brief for Cable-Industry Petitioners 30–36. And
not reaching the point could undermine the purpose of our
grant of certiorari: to settle authoritatively whether the
Commission’s Declaratory Ruling is lawful. Were we to up
hold the Declaratory Ruling without reaching the Chevron
point, the Court of Appeals could once again strike down the
Commission’s rule based on its Portland decision. Portland
(at least arguably) could compel the Court of Appeals once
again to reverse the Commission despite our decision, since
our conclusion that it is reasonable to read the Communica
tions Act to classify cable modem service solely as an “infor

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mation service” leaves untouched Portland’s holding that the
Commission’s interpretation is not the best reading of the
statute. We have before decided similar questions that
were not, strictly speaking, necessary to our disposition.
See, e. g., Agostini v. Felton, 521 U. S. 203, 237 (1997) (requir
ing the Courts of Appeals to adhere to our directly control
ling precedents, even those that rest on reasons rejected in
other decisions); Roper v. Simmons, 543 U. S. 551, 628–629
(2005) (Scalia, J., dissenting) (criticizing this Court for not
reaching the question whether the Missouri Supreme Court
erred by failing to follow directly controlling Supreme Court
precedent, though that conclusion was not necessary to the
Court’s decision). It is prudent for us to do so once again
today.
IV
We next address whether the Commission’s construction
of the definition of “telecommunications service,” 47 U. S. C.
§ 153(46), is a permissible reading of the Communications
Act under the Chevron framework. Chevron established
a familiar two-step procedure for evaluating whether an
agency’s interpretation of a statute is lawful. At the first
step, we ask whether the statute’s plain terms “directly ad
dres[s] the precise question at issue.” 467 U. S., at 843. If
the statute is ambiguous on the point, we defer at step two
to the agency’s interpretation so long as the construction is
“a reasonable policy choice for the agency to make.” Id.,
at 845. The Commission’s interpretation is permissible at
both steps.
A
We first set forth our understanding of the interpretation
of the Communications Act that the Commission embraced.
The issue before the Commission was whether cable compa
nies providing cable modem service are providing a “tele
communications service” in addition to an “information
service.”

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The Commission first concluded that cable modem service
is an “information service,” a conclusion unchallenged here.
The Act defines “information service” as “the offering of a
capability for generating, acquiring, storing, transforming,
processing, retrieving, utilizing, or making available informa
tion via telecommunications . . . .” § 153(20). Cable modem
service is an information service, the Commission reasoned,
because it provides consumers with a comprehensive capa
bility for manipulating information using the Internet via
high-speed telecommunications. That service enables users,
for example, to browse the World Wide Web, to transfer files
from file archives available on the Internet via the “File
Transfer Protocol,” and to access e-mail and Usenet news
groups. Declaratory Ruling 4821, ¶ 37; Universal Service
Report 11537, ¶ 76. Like other forms of Internet service,
cable modem service also gives users access to the Domain
Name System (DNS). DNS, among other things, matches
the Web page addresses that end users type into their
browsers (or “click” on) with the Internet Protocol (IP) ad
dresses 1 of the servers containing the Web pages the users
wish to access. Declaratory Ruling 4821–4822, ¶ 37. All of
these features, the Commission concluded, were part of the
information service that cable companies provide consumers.
Id., at 4821–4823, ¶¶ 36–38; see also Universal Service Re
port 11536–11539, ¶¶ 75–79.
At the same time, the Commission concluded that cable
modem service was not “ telecommunications service. ”
“Telecommunications service” is “the offering of telecom
munications for a fee directly to the public.” 47 U. S. C.
§ 153(46). “Telecommunications,” in turn, is defined as “the
transmission, between or among points specified by the user,
of information of the user’s choosing, without change in the
form or content of the information as sent and received.”
1 IP addresses identify computers on the Internet, enabling data packets
transmitted from other computers to reach them. See Universal Service
Report 11531, ¶ 62; Huber 985.

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§ 153(43). The Commission conceded that, like all
information-service providers, cable companies use “telecom
munications” to provide consumers with Internet service;
cable companies provide such service via the high-speed wire
that transmits signals to and from an end user’s computer.
Declaratory Ruling 4823, ¶ 40. For the Commission, how
ever, the question whether cable broadband Internet provid
ers “offer” telecommunications involved more than whether
telecommunications was one necessary component of cable
modem service. Instead, whether that service also includes
a telecommunications “offering” “turn[ed] on the nature of
the functions the end user is offered,” id., at 4822, ¶ 38 (em
phasis added), for the statutory definition of “telecommunica
tions service” does not “res[t] on the particular types of fa
cilities used,” id., at 4821, ¶ 35; see § 153(46) (definition of
“telecommunications service” applies “regardless of the facil
ities used”).
Seen from the consumer’s point of view, the Commission
concluded, cable modem service is not a telecommunications
offering because the consumer uses the high-speed wire al
ways in connection with the information-processing capabil
ities provided by Internet access, and because the trans
mission is a necessary component of Internet access: “As
provided to the end user the telecommunications is part and
parcel of cable modem service and is integral to its other
capabilities.” Declaratory Ruling 4823, ¶ 39. The wire is
used, in other words, to access the World Wide Web, news
groups, and so forth, rather than “transparently” to transmit
and receive ordinary-language messages without computer
processing or storage of the message. See supra, at 976
(noting the Computer II notion of “transparent” transmis
sion). The integrated character of this offering led the
Commission to conclude that cable modem service is not a
“stand-alone,” transparent offering of telecommunications.
Declaratory Ruling 4823–4825, ¶¶ 41–43.

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B
This construction passes Chevron’s first step. Respond
ents argue that it does not, on the ground that cable compa
nies providing Internet service necessarily “offe[r]” the un
derlying telecommunications used to transmit that service.
The word “offering” as used in § 153(46), however, does not
unambiguously require that result. Instead, “offering” can
reasonably be read to mean a “stand-alone” offering of tele
communications, i. e., an offered service that, from the user’s
perspective, transmits messages unadulterated by computer
processing. That conclusion follows not only from the or
dinary meaning of the word “offering,” but also from the
regulatory history of the Communications Act.
1
Cable companies in the broadband Internet service busi
ness “offe[r]” consumers an information service in the form
of Internet access and they do so “via telecommunications,”
§ 153(20), but it does not inexorably follow as a matter of
ordinary language that they also “offe[r]” consumers the
high-speed data transmission (telecommunications) that is an
input used to provide this service, § 153(46). We have held
that where a statute’s plain terms admit of two or more rea
sonable ordinary usages, the Commission’s choice of one of
them is entitled to deference. See Verizon, 535 U. S., at 498
(deferring to the Commission’s interpretation of the term
“cost” by reference to an alternative linguistic usage defined
by what “[a] merchant who is asked about ‘the cost of provid
ing the goods’ ” might “reasonably” say); National Railroad
Passenger Corporation v. Boston & Maine Corp., 503 U. S.
407, 418 (1992) (agency construction entitled to deference
where there were “alternative dictionary definitions of the
word” at issue). The term “offe[r]” as used in the definition
of telecommunications service, § 153(46), is ambiguous in
this way.

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It is common usage to describe what a company “offers”
to a consumer as what the consumer perceives to be the inte
grated finished product, even to the exclusion of discrete
components that compose the product, as the dissent con
cedes. See post, at 1006–1007 (opinion of Scalia, J.). One
might well say that a car dealership “offers” cars, but does
not “offer” the integrated major inputs that make purchasing
the car valuable, such as the engine or the chassis. It
would, in fact, be odd to describe a car dealership as “offer
ing” consumers the car’s components in addition to the car
itself. Even if it is linguistically permissible to say that the
car dealership “offers” engines when it offers cars, that
shows, at most, that the term “offer,” when applied to a com
mercial transaction, is ambiguous about whether it describes
only the offered finished product, or the product’s discrete
components as well. It does not show that no other usage
is permitted.
The question, then, is whether the transmission component
of cable modem service is sufficiently integrated with the
finished service to make it reasonable to describe the two as
a single, integrated offering. See ibid. We think that they
are sufficiently integrated, because “[a] consumer uses the
high-speed wire always in connection with the information
processing capabilities provided by Internet access, and be
cause the transmission is a necessary component of Internet
access.” Supra, at 988. In the telecommunications context,
it is at least reasonable to describe companies as not “offer
ing” to consumers each discrete input that is necessary to
providing, and is always used in connection with, a finished
service. We think it no misuse of language, for example, to
say that cable companies providing Internet service do not
“offer” consumers DNS, even though DNS is essential to
providing Internet access. Declaratory Ruling 4810, n. 74,
4822–4823, ¶ 38. Likewise, a telephone company “offers”
consumers a transparent transmission path that conveys
an ordinary-language message, not necessarily the data

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transmission facilities that also “transmi[t] . . . information
of the user’s choosing,” § 153(43), or other physical elements
of the facilities used to provide telephone service, like the
trunks and switches, or the copper in the wires. What cable
companies providing cable modem service and telephone
companies providing telephone service “offer” is Internet
service and telephone service respectively—the finished
services, though they do so using (or “via”) the discrete com
ponents composing the end product, including data transmis
sion. Such functionally integrated components need not be
described as distinct “offerings.”
In response, the dissent argues that the high-speed trans
mission component necessary to providing cable modem
service is necessarily “offered” with Internet service because
cable modem service is like the offering of pizza delivery
service together with pizza, and the offering of puppies to
gether with dog leashes. Post, at 1007–1008 (opinion of
Scalia, J.). The dissent’s appeal to these analogies only un
derscores that the term “offer” is ambiguous in the way
that we have described. The entire question is whether
the products here are functionally integrated (like the com
ponents of a car) or functionally separate (like pets and
leashes). That question turns not on the language of the
Act, but on the factual particulars of how Internet technol
ogy works and how it is provided, questions Chevron leaves
to the Commission to resolve in the first instance. As the
Commission has candidly recognized, “the question may not
always be straightforward whether, on the one hand, an en
tity is providing a single information service with communi
cations and computing components, or, on the other hand, is
providing two distinct services, one of which is a telecommu
nications service.” Universal Service Report 11530, ¶ 60.
Because the term “offer” can sometimes refer to a single,
finished product and sometimes to the “individual compo
nents in a package being offered” (depending on whether the
components “still possess sufficient identity to be described

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as separate objects,” post, at 1006), the statute fails unambig
uously to classify the telecommunications component of cable
modem service as a distinct offering. This leaves federal
telecommunications policy in this technical and complex area
to be set by the Commission, not by warring analogies.
We also do not share the dissent’s certainty that cable
modem service is so obviously like pizza delivery service and
the combination of dog leashes and dogs that the Commission
could not reasonably have thought otherwise. Post, at 1007–
1008. For example, unlike the transmission component of
Internet service, delivery service and dog leashes are not
integral components of the finished products (pizzas and pet
dogs). One can pick up a pizza rather than having it deliv
ered, and one can own a dog without buying a leash. By
contrast, the Commission reasonably concluded, a consumer
cannot purchase Internet service without also purchasing a
connection to the Internet and the transmission always oc
curs in connection with information processing. In any
event, we doubt that a statute that, for example, subjected
offerors of “delivery” service (such as Federal Express and
United Parcel Service) to common-carrier regulation would
unambiguously require pizza-delivery companies to offer
their delivery services on a common-carrier basis.
2
The Commission’s traditional distinction between basic
and enhanced service, see supra, at 976–977, also supports
the conclusion that the Communications Act is ambiguous
about whether cable companies “offer” telecommunications
with cable modem service. Congress passed the definitions
in the Communications Act against the background of this
regulatory history, and we may assume that the parallel
terms “telecommunications service” and “information serv
ice” substantially incorporated their meaning, as the Com
mission has held. See, e. g., In re Federal-State Joint Board
on Universal Service, 12 FCC Rcd. 8776, 9179–9180, ¶ 788

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(1997) (noting that the “definition of enhanced services is
substantially similar to the definition of information serv
ices” and that “all services previously considered ‘enhanced
services’ are ‘information services’ ”); Commissioner v. Key
stone Consol. Industries, Inc., 508 U. S. 152, 159 (1993) (not
ing presumption that Congress is aware of “settled judicial
and administrative interpretation[s]” of terms when it enacts
a statute). The regulatory history in at least two respects
confirms that the term “ telecommunications service” is
ambiguous.
First, in the Computer II Order that established the terms
“basic” and “enhanced” services, the Commission defined
those terms functionally, based on how the consumer inter
acts with the provided information, just as the Commission
did in the order below. See supra, at 976–977. As we have
explained, Internet service is not “transparent in terms of
its interaction with customer supplied information,” Com
puter II Order 420, ¶ 96; the transmission occurs in connec
tion with information processing. It was therefore consist
ent with the statute’s terms for the Commission to assume
that the parallel term “telecommunications service” in 47
U. S. C. § 153(46) likewise describes a “pure” or “transpar
ent” communications path not necessarily separately pres
ent, from the end user’s perspective, in an integrated
information-service offering.
The Commission’s application of the basic/enhanced
service distinction to non-facilities-based ISPs also supports
this conclusion. The Commission has long held that “all
those who provide some form of transmission services are
not necessarily common carriers.” Computer II Order 431,
¶ 122; see also id., at 435, ¶ 132 (“acknowledg[ing] the exist
ence of a communications component” in enhanced-service
offerings). For example, the Commission did not subject to
common-carrier regulation those service providers that of
fered enhanced services over telecommunications facilities,
but that did not themselves own the underlying facilities—
so-called “non-facilities-based” providers. See Universal

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Service Report 11530, ¶ 60. Examples of these services in
cluded database services in which a customer used telecom
munications to access information, such as Dow Jones News
and Lexis, as well as “value added networks,” which lease
wires from common carriers and provide transmission as
well as protocol-processing service over those wires. See
In re Amendment to Sections 64.702 of the Commission’s
Rules and Regulations (Third Computer Inquiry), 3 FCC
Rcd. 1150, 1153, n. 23 (1988); supra, at 977 (explaining pro
tocol conversion). These services “combin[ed] communica
tions and computing components,” yet the Commission held
that they should “always be deemed enhanced” and therefore
not subject to common-carrier regulation. Universal Serv
ice Report 11530, ¶ 60. Following this traditional distinc
tion, the Commission in the Universal Service Report classi
fied ISPs that leased rather than owned their transmission
facilities as pure information-service providers. Id., at
11540, ¶ 81.
Respondents’ statutory arguments conflict with this reg
ulatory history. They claim that the Communications Act
unambiguously classifies as telecommunications carriers all
entities that use telecommunications inputs to provide infor
mation service. As respondent MCI concedes, this argu
ment would subject to mandatory common-carrier regulation
all information-service providers that use telecommunica
tions as an input to provide information service to the public.
Brief for Respondent MCI, Inc., 30. For example, it would
subject to common-carrier regulation non-facilities-based
ISPs that own no transmission facilities. See Universal
Service Report 11532–11533, ¶ 66. Those ISPs provide con
sumers with transmission facilities used to connect to the
Internet, see supra, at 974, and so, under respondents’ argu
ment, necessarily “offer” telecommunications to consumers.
Respondents’ position that all such entities are necessarily
“offering telecommunications” therefore entails mandatory
common-carrier regulation of entities that the Commission

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never classified as “offerors” of basic transmission service,
and therefore common carriers, under the Computer II re
gime.2 See Universal Service Report 11540, ¶ 81 (noting
past Commission policy); Computer and Communications
Industry Assn. v. FCC, 693 F. 2d 198, 209 (CADC 1982) (not
ing and upholding Commission’s Computer II “finding that
enhanced services . . . are not common carrier services within
the scope of Title II”). We doubt that the parallel term
“telecommunications service” unambiguously worked this
abrupt shift in Commission policy.
Respondents’ analogy between cable companies that pro
vide cable modem service and facilities-based enhanced
service providers—that is, enhanced-service providers who
own the transmission facilities used to provide those serv
ices—fares no better. Respondents stress that under the
Computer II rules the Commission regulated such provid
ers more heavily than non-facilities-based providers. The
Commission required, for example, local telephone companies
that provided enhanced services to offer their wires on a
common-carrier basis to competing enhanced-service provid
ers. See, e. g., In re Amendment of Sections 64.702 of the
Commission’s Rules and Regulations (Third Computer In
quiry), 104 F. C. C. 2d 958, 964, ¶ 4 (1986) (hereinafter Com
puter III Order). Respondents argue that the Communica
tions Act unambiguously requires the same treatment for
cable companies because cable companies also own the facili
ties they use to provide cable modem service (and therefore
information service).
2 The dissent attempts to escape this consequence of respondents’ posi
tion by way of an elaborate analogy between ISPs and pizzerias. Post, at
1011 (opinion of Scalia, J.). This analogy is flawed. A pizzeria “deliv
ers” nothing, but ISPs plainly provide transmission service directly to the
public in connection with Internet service. For example, with dial-up
service, ISPs process the electronic signal that travels over local telephone
wires, and transmit it to the Internet. See supra, at 974–975; Huber 988.
The dissent therefore cannot deny that its position logically would require
applying presumptively mandatory Title II regulation to all ISPs.

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We disagree. We think it improbable that the Communi
cations Act unambiguously freezes in time the Computer II
treatment of facilities-based information-service providers.
The Act’s definition of “telecommunications service” says
nothing about imposing more stringent regulatory duties on
facilities-based information-service providers. The defini
tion hinges solely on whether the entity “offer[s] telecommu
nications for a fee directly to the public,” 47 U. S. C. § 153(46),
though the Act elsewhere subjects facilities-based carriers
to stricter regulation, see § 251(c) (imposing various duties
on facilities-based local telephone companies). In the Com
puter II rules, the Commission subjected facilities-based pro
viders to common-carrier duties not because of the nature of
the “offering” made by those carriers, but rather because of
the concern that local telephone companies would abuse the
monopoly power they possessed by virtue of the “bottleneck”
local telephone facilities they owned. See Computer II
Order 474–475, ¶¶ 229, 231; Computer III Order 968–969,
¶ 12; Verizon, 535 U. S., at 489–490 (describing the naturally
monopolistic physical structure of a local telephone ex
change). The differential treatment of facilities-based car
riers was therefore a function not of the definitions of
“enhanced-service” and “basic service,” but instead of a
choice by the Commission to regulate more stringently, in its
discretion, certain entities that provided enhanced service.
The Act’s definitions, however, parallel the definitions of en
hanced and basic service, not the facilities-based grounds on
which that policy choice was based, and the Commission re
mains free to impose special regulatory duties on facilities
based ISPs under its Title I ancillary jurisdiction. In fact,
it has invited comment on whether it can and should do so.
See supra, at 979.
In sum, if the Act fails unambiguously to classify non
facilities-based information-service providers that use tele
communications inputs to provide an information service as
“offer[ors]” of “telecommunications,” then it also fails unam

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biguously to classify facilities-based information-service pro
viders as telecommunications-service offerors; the relevant
definitions do not distinguish facilities-based and non
facilities-based carriers. That silence suggests, instead,
that the Commission has the discretion to fill the conse
quent statutory gap.
C
We also conclude that the Commission’s construction was
“a reasonable policy choice for the [Commission] to make” at
Chevron’s second step. 467 U. S., at 845.
Respondents argue that the Commission’s construction is
unreasonable because it allows any communications provider
to “evade” common-carrier regulation by the expedient of
bundling information service with telecommunications. Re
spondents argue that under the Commission’s construction a
telephone company could, for example, offer an information
service like voice mail together with telephone service,
thereby avoiding common-carrier regulation of its tele
phone service.
We need not decide whether a construction that resulted
in these consequences would be unreasonable because we do
not believe that these results follow from the construction
the Commission adopted. As we understand the Declara
tory Ruling, the Commission did not say that any telecom
munications service that is priced or bundled with an infor
mation service is automatically unregulated under Title II.
The Commission said that a telecommunications input used
to provide an information service that is not “separable from
the data-processing capabilities of the service” and is instead
“part and parcel of [the information service] and is integral
to [the information service’s] other capabilities” is not a tele
communications offering. Declaratory Ruling 4823, ¶ 39;
see supra, at 988.
This construction does not leave all information-service
offerings exempt from mandatory Title II regulation. “It is
plain,” for example, that a local telephone company “cannot

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escape Title II regulation of its residential local exchange
service simply by packaging that service with voice mail.”
Universal Service Report 11530, ¶ 60. That is because a
telephone company that packages voice mail with telephone
service offers a transparent transmission path—telephone
service—that transmits information independent of the
information-storage capabilities provided by voice mail.
For instance, when a person makes a telephone call, his abil
ity to convey and receive information using the call is only
trivially affected by the additional voice-mail capability.
Equally, were a telephone company to add a time-of-day an
nouncement that played every time the user picked up his
telephone, the “transparent” information transmitted in the
ensuing call would be only trivially dependent on the infor
mation service the announcement provides. By contrast,
the high-speed transmission used to provide cable modem
service is a functionally integrated component of that service
because it transmits data only in connection with the further
processing of information and is necessary to provide In
ternet service. The Commission’s construction therefore
was more limited than respondents assume.
Respondents answer that cable modem service does, in
fact, provide “transparent” transmission from the consum
er’s perspective, but this argument, too, is mistaken. Re
spondents characterize the “information-service” offering of
Internet access as consisting only of access to a cable com
pany’s e-mail service, its Web page, and the ability it pro
vides consumers to create a personal Web page. When a
consumer goes beyond those offerings and accesses content
provided by parties other than the cable company, respond
ents argue, the consumer uses “pure transmission” no less
than a consumer who purchases phone service together with
voice mail.
This argument, we believe, conflicts with the Commission’s
understanding of the nature of cable modem service, an un
derstanding we find to be reasonable. When an end user

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accesses a third-party’s Web site, the Commission concluded,
he is equally using the information service provided by the
cable company that offers him Internet access as when he
accesses the company’s own Web site, its e-mail service, or
his personal Web page. For example, as the Commission
found below, part of the information service cable companies
provide is access to DNS service. See supra, at 987. A
user cannot reach a third-party’s Web site without DNS,
which (among other things) matches the Web site address
the end user types into his browser (or “clicks” on with his
mouse) with the IP address of the Web page’s host server.
See P. Albitz & C. Liu, DNS and BIND 10 (4th ed. 2001) (For
an Internet user, “DNS is a must. . . . [N]early all of the
Internet’s network services use DNS. That includes the
World Wide Web, electronic mail, remote terminal access,
and file transfer”). It is at least reasonable to think of DNS
as a “capability for . . . acquiring . . . retrieving, utilizing, or
making available” Web site addresses and therefore part of
the information service cable companies provide. 47 U. S. C.
§ 153(20).3 Similarly, the Internet service provided by cable
companies facilitates access to third-party Web pages by of
fering consumers the ability to store, or “cache,” popular con
tent on local computer servers. See Declaratory Ruling
4810, ¶ 17, and n. 76. Cacheing obviates the need for the
end user to download anew information from third-party
3 The dissent claims that access to DNS does not count as use of the
information-processing capabilities of Internet service because DNS is
“scarcely more than routing information, which is expressly excluded from
the definition of ‘information service.’ ” Post, at 1012–1013, and n. 6 (opin
ion of Scalia, J.). But the definition of information service does not ex
clude “routing information.” Instead, it excludes “any use of any such
capability for the management, control, or operation of a telecommunica
tions system or the management of a telecommunications service.” 47
U. S. C. § 153(20). The dissent’s argument therefore begs the question be
cause it assumes that Internet service is a “telecommunications system”
or “service” that DNS manages (a point on which, contrary to the dissent’s
assertion, post, at 1013, n. 6, we need take no view for purposes of this
response).

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Web sites each time the consumer attempts to access them,
thereby increasing the speed of information retrieval. In
other words, subscribers can reach third-party Web sites via
“the World Wide Web, and browse their contents, [only] be
cause their service provider offers the ‘capability for . . .
acquiring, [storing] . . . retrieving [and] utilizing . . . informa
tion.’ ” Universal Service Report 11538, ¶ 76 (quoting 47
U. S. C. § 153(20)). “The service that Internet access provid
ers offer to members of the public is Internet access,” Uni
versal Service Report 11539, ¶ 79, not a transparent ability
(from the end user’s perspective) to transmit information.
We therefore conclude that the Commission’s construction
was reasonable.
V
Respondent MCI, Inc., urges that the Commission’s treat
ment of cable modem service is inconsistent with its treat
ment of DSL service, see supra, at 975 (describing DSL serv
ice), and therefore is an arbitrary and capricious deviation
from agency policy. See 5 U. S. C. § 706(2)(A). MCI points
out that when local telephone companies began to offer In
ternet access through DSL technology in addition to tele
phone service, the Commission applied its Computer II
facilities-based classification to them and required them to
make the telephone lines used to transmit DSL service avail
able to competing ISPs on nondiscriminatory, common
carrier terms. See supra, at 996 (describing Computer II
facilities-based classification of enhanced-service providers);
In re Deployment of Wireline Services Offering Advanced
Telecommunications Capability, 13 FCC Rcd. 24011, 24030–
24031, ¶¶ 36–37 (1998) (hereinafter Wireline Order) (classify
ing DSL service as a telecommunications service). MCI
claims that the Commission’s decision not to regulate cable
companies similarly under Title II is inconsistent with its
DSL policy.
We conclude, however, that the Commission provided a
reasoned explanation for treating cable modem service dif

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ferently from DSL service. As we have already noted, see
supra, at 981–982, the Commission is free within the limits
of reasoned interpretation to change course if it adequately
justifies the change.4 It has done so here. The traditional
reason for its Computer II common-carrier treatment of
facilities-based carriers (including DSL carriers), as the
Commission explained, was “that the telephone network
[was] the primary, if not exclusive, means through which in
formation service providers can gain access to their custom
ers.” Declaratory Ruling 4825, ¶ 44 (emphasis in original;
internal quotation marks omitted). The Commission ap
plied the same treatment to DSL service based on that his
tory, rather than on an analysis of contemporaneous market
conditions. See Wireline Order 24031, ¶ 37 (noting DSL car
riers’ “continuing obligation” to offer their transmission facil
ities to competing ISPs on nondiscriminatory terms).
The Commission in the order under review, by contrast,
concluded that changed market conditions warrant different
treatment of facilities-based cable companies providing In
ternet access. Unlike at the time of Computer II, substitute
forms of Internet transmission exist today: “[R]esidential
high-speed access to the Internet is evolving over multiple
electronic platforms, including wireline, cable, terrestrial
wireless and satellite.” Declaratory Ruling 4802, ¶ 6; see
also U. S. Telecom Assn. v. FCC, 290 F. 3d 415, 428 (CADC
2002) (noting Commission findings of “robust competition . . .
in the broadband market”). The Commission concluded
that “ ‘broadband services should exist in a minimal regula
tory environment that promotes investment and innovation
in a competitive market.’ ” Declaratory Ruling 4802, ¶ 5.
4 Respondents vigorously argue that the Commission’s purported incon
sistent treatment is a reason for holding the Commission’s construction
impermissible under Chevron U. S. A. Inc. v. Natural Resources Defense
Council, Inc., 467 U. S. 837 (1984). Any inconsistency bears on whether
the Commission has given a reasoned explanation for its current position,
not on whether its interpretation is consistent with the statute.

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This, the Commission reasoned, warranted treating cable
companies unlike the facilities-based enhanced-service pro
viders of the past. Id., at 4825, ¶ 44. We find nothing arbi
trary about the Commission’s providing a fresh analysis of
the problem as applied to the cable industry, which it has
never subjected to these rules. This is adequate rational
justification for the Commission’s conclusions.
Respondents argue, in effect, that the Commission’s justi
fication for exempting cable modem service providers from
common-carrier regulation applies with similar force to DSL
providers. We need not address that argument. The Com
mission’s decision appears to be a first step in an effort to
reshape the way the Commission regulates information
service providers; that may be why it has tentatively con
cluded that DSL service provided by facilities-based tele
phone companies should also be classified solely as an
information service. See In re Appropriate Framework for
Broadband Access to the Internet over Wireline Facilities,
17 FCC Rcd. 3019, 3030, ¶ 20 (2002). The Commission need
not immediately apply the policy reasoning in the Declara
tory Ruling to all types of information-service providers.
It apparently has decided to revisit its longstanding Com
puter II classification of facilities-based information-service
providers incrementally. Any inconsistency between the
order under review and the Commission’s treatment of DSL
service can be adequately addressed when the Commission
fully reconsiders its treatment of DSL service and when it
decides whether, pursuant to its ancillary Title I jurisdiction,
to require cable companies to allow independent ISPs access
to their facilities. See supra, at 979 and this page. We ex
press no view on those matters. In particular, we express
no view on how the Commission should, or lawfully may, clas
sify DSL service.
* * *
The questions the Commission resolved in the order under
review involve a “subject matter [that] is technical, complex,

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and dynamic.” Gulf Power, 534 U. S., at 339. The Commis
sion is in a far better position to address these questions
than we are. Nothing in the Communications Act or the
Administrative Procedure Act makes unlawful the Commis
sion’s use of its expert policy judgment to resolve these dif
ficult questions. The judgment of the Court of Appeals is
reversed, and the cases are remanded for further proceed
ings consistent with this opinion.
It is so ordered.
Justice Stevens, concurring.
While I join the Court’s opinion in full, I add this caveat
concerning Part III–B, which correctly explains why a court
of appeals’ interpretation of an ambiguous provision in a reg
ulatory statute does not foreclose a contrary reading by the
agency. That explanation would not necessarily be applica
ble to a decision by this Court that would presumably re
move any pre-existing ambiguity.
Justice Breyer, concurring.
I join the Court’s opinion because I believe that the Fed
eral Communications Commission’s decision falls within the
scope of its statutorily delegated authority—though perhaps
just barely. I write separately because I believe it impor
tant to point out that Justice Scalia, in my view, has
wrongly characterized the Court’s opinion in United States
v. Mead Corp., 533 U. S. 218 (2001). He states that the
Court held in Mead that “some unspecified degree of formal
process” before the agency “was required” for courts to ac
cord the agency’s decision deference under Chevron U. S. A.
Inc. v. Natural Resources Defense Council, Inc., 467 U. S.
837 (1984). Post, at 1015 (dissenting opinion); see also ibid.
(formal process is “at least the only safe harbor”).
Justice Scalia has correctly characterized the way in
which he, in dissent, characterized the Court’s Mead opinion.
533 U. S., at 245–246. But the Court said the opposite. An

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agency action qualifies for Chevron deference when Con
gress has explicitly or implicitly delegated to the agency the
authority to “fill” a statutory “gap,” including an interpretive
gap created through an ambiguity in the language of a stat
ute’s provisions. Chevron, supra, at 843–844; Mead, supra,
at 226–227. The Court said in Mead that such delegation
“may be shown in a variety of ways, as by an agency’s power
to engage in adjudication or notice-and-comment rulemaking,
or by some other indication of a comparable congressional
intent.” 533 U. S., at 227 (emphasis added). The Court ex
plicitly stated that the absence of notice-and-comment rule
making did “not decide the case,” for the Court has “some
times found reasons for Chevron deference even when no
such administrative formality was required and none was af
forded.” Id., at 231. And the Court repeated that it “has
recognized a variety of indicators that Congress would ex
pect Chevron deference.” Id., at 237 (emphasis added).
It is not surprising that the Court would hold that the
existence of a formal rulemaking proceeding is neither a nec
essary nor a sufficient condition for according Chevron defer
ence to an agency’s interpretation of a statute. It is not a
necessary condition because an agency might arrive at an
authoritative interpretation of a congressional enactment in
other ways, including ways that Justice Scalia mentions.
See, e. g., Mead, supra, at 231. It is not a sufficient condition
because Congress may have intended not to leave the matter
of a particular interpretation up to the agency, irrespective
of the procedure the agency uses to arrive at that interpreta
tion, say, where an unusually basic legal question is at issue.
Cf. General Dynamics Land Systems, Inc. v. Cline, 540
U. S. 581, 600 (2004) (rejecting agency’s answer to ques
tion whether age discrimination law forbids discrimination
against the relatively young).
Thus, while I believe Justice Scalia is right in emphasiz
ing that Chevron deference may be appropriate in the ab

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sence of formal agency proceedings, Mead should not give
him cause for concern.
Justice Scalia, with whom Justice Souter and Jus
tice Ginsburg join as to Part I, dissenting.
The Federal Communications Commission (FCC or Com
mission) has once again attempted to concoct “a whole new
regime of regulation (or of free-market competition)” under
the guise of statutory construction. MCI Telecommunica
tions Corp. v. American Telephone & Telegraph Co., 512
U. S. 218, 234 (1994). Actually, in these cases, it might be
more accurate to say the Commission has attempted to es
tablish a whole new regime of non-regulation, which will
make for more or less free-market competition, depending
upon whose experts are believed. The important fact, how
ever, is that the Commission has chosen to achieve this
through an implausible reading of the statute, and has thus
exceeded the authority given it by Congress.
I
The first sentence of the FCC ruling under review reads
as follows: “Cable modem service provides high-speed access
to the Internet, as well as many applications or functions
that can be used with that access, over cable system facili
ties.” In re Inquiry Concerning High-Speed Access to the
Internet Over Cable and Other Facilities, 17 FCC Rcd. 4798,
4799, ¶ 1 (2002) (hereinafter Declaratory Ruling) (emphasis
added; footnote omitted). Does this mean that cable compa
nies “offer” high-speed access to the Internet? Surprisingly
not, if the Commission and the Court are to be believed.
It happens that cable-modem service is popular precisely
because of the high-speed access it provides, and that, once
connected with the Internet, cable-modem subscribers often
use Internet applications and functions from providers other
than the cable company. Nevertheless, for purposes of clas

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sifying what the cable company does, the Commission (with
the Court’s approval) puts all the emphasis on the rest of the
package (the additional “applications or functions”). It does
so by claiming that the cable company does not “offe[r]” its
customers high-speed Internet access because it offers that
access only in conjunction with particular applications and
functions, rather than “separate[ly],” as a “stand-alone offer
ing.” Id., at 4802, ¶ 7, 4823, ¶ 40.
The focus on the term “offer” appropriately derives from
the statutory definitions at issue in these cases. Under the
Telecommunications Act of 1996, 110 Stat. 59, “ ‘information
service’ ” involves the capacity to generate, store, interact
with, or otherwise manipulate “information via telecommuni
cations.” 47 U. S. C. § 153(20). In turn, “ ‘telecommunica
tions’ ” is defined as “the transmission, between or among
points specified by the user, of information of the user’s
choosing, without change in the form or content of the infor
mation as sent and received.” § 153(43). Finally, “ ‘tele
communications service’ ” is defined as “the offering of tele
communications for a fee directly to the public . . . regardless
of the facilities used.” § 153(46). The question here is
whether cable-modem-service providers “offe[r] . . . telecom
munications for a fee directly to the public.” If so, they are
subject to Title II regulation as common carriers, like their
chief competitors who provide Internet access through
other technologies.
The Court concludes that the word “offer” is ambiguous in
the sense that it has “ ‘alternative dictionary definitions’ ”
that might be relevant. Ante, at 989 (quoting National
Railroad Passenger Corporation v. Boston & Maine Corp.,
503 U. S. 407, 418 (1992)). It seems to me, however, that
the analytic problem pertains not really to the meaning of
“offer,” but to the identity of what is offered. The relevant
question is whether the individual components in a package
being offered still possess sufficient identity to be described
as separate objects of the offer, or whether they have been

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so changed by their combination with the other components
that it is no longer reasonable to describe them in that way.
Thus, I agree (to adapt the Court’s example, ante, at 990)
that it would be odd to say that a car dealer is in the business
of selling steel or carpets because the cars he sells include
both steel frames and carpeting. Nor does the water com
pany sell hydrogen, nor the pet store water (though dogs and
cats are largely water at the molecular level). But what is
sometimes true is not, as the Court seems to assume, always
true. There are instances in which it is ridiculous to deny
that one part of a joint offering is being offered merely be
cause it is not offered on a “ ‘stand-alone’ ” basis, ante, at 989.
If, for example, I call up a pizzeria and ask whether they
offer delivery, both common sense and common “usage,”
ante, at 990, would prevent them from answering: “No, we
do not offer delivery—but if you order a pizza from us, we’ll
bake it for you and then bring it to your house.” The logical
response to this would be something on the order of, “so, you
do offer delivery.” But our pizza-man may continue to deny
the obvious and explain, paraphrasing the FCC and the
Court: “No, even though we bring the pizza to your house,
we are not actually ‘offering’ you delivery, because the deliv
ery that we provide to our end users is ‘part and parcel’ of
our pizzeria-pizza-at-home service and is ‘integral to its other
capabilities.’ ” Cf. Declaratory Ruling 4823, ¶ 39; ante, at
988, 997–998.1 Any reasonable customer would conclude at
that point that his interlocutor was either crazy or following
some too-clever-by-half legal advice.
In short, for the inputs of a finished service to qualify as
the objects of an “offer” (as that term is reasonably under
stood), it is perhaps a sufficient, but surely not a necessary,
condition that the seller offer separately “each discrete input
1 The myth that the pizzeria does not offer delivery becomes even more
difficult to maintain when the pizzeria advertises quick delivery as one of
its advantages over competitors. That, of course, is the case with cable
broadband.

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that is necessary to providing . . . a finished service,” ante,
at 990. The pet store may have a policy of selling puppies
only with leashes, but any customer will say that it does offer
puppies—because a leashed puppy is still a puppy, even
though it is not offered on a “stand-alone” basis.
Despite the Court’s mighty labors to prove otherwise,
ante, at 989–1000, the telecommunications component of
cable-modem service retains such ample independent iden
tity that it must be regarded as being on offer—especially
when seen from the perspective of the consumer or the end
user, which the Court purports to find determinative, ante,
at 990, 993, 998, 1000. The Commission’s ruling began by
noting that cable-modem service provides both “high-speed
access to the Internet” and other “applications and func
tions,” Declaratory Ruling 4799, ¶ 1, because that is exactly
how any reasonable consumer would perceive it: as consist
ing of two separate things.
The consumer’s view of the matter is best assessed by ask
ing what other products cable-modem service substitutes for
in the marketplace. Broadband Internet service provided
by cable companies is one of the three most common forms
of Internet service, the other two being dial-up access and
broadband Digital Subscriber Line (DSL) service. Ante, at
974–975. In each of the other two, the physical transmission
pathway to the Internet is sold—indeed, is legally required
to be sold—separately from the Internet functionality.
With dial-up access, the physical pathway comes from the
telephone company, and the Internet service provider (ISP)
provides the functionality.
“In the case of Internet access, the end user utilizes two
different and distinct services. One is the transmission
pathway, a telecommunications service that the end user
purchases from the telephone company. The second is
the Internet access service, which is an enhanced serv
ice provided by an ISP. . . . Th[e] functions [provided by
the ISP] are separate from the transmission pathway

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over which that data travels. The pathway is a regu
lated telecommunications service; the enhanced service
offered over it is not.” FCC, Office of Plans and Policy,
J. Oxman, The FCC and the Unregulation of the In
ternet, p. 13 (Working Paper No. 31, July 1999), availa
ble at http://www.fcc.gov/Bureaus/OPP/working_papers/
oppwp31.pdf (as visited June 24, 2005, and available in
Clerk of Court’s case file).2
As the Court acknowledges, ante, at 1000, DSL service has
been similar to dial-up service in the respect that the physi
cal connection to the Internet must be offered separately
from Internet functionality.3 Thus, customers shopping for
dial-up or DSL service will not be able to use the Internet
unless they get both someone to provide them with a physi
cal connection and someone to provide them with applica
tions and functions such as e-mail and Web access. It is
therefore inevitable that customers will regard the compet
ing cable-modem service as giving them both computing
functionality and the physical pipe by which that functional
ity comes to their computer—both the pizza and the delivery
service that nondelivery pizzerias require to be purchased
from the cab company.4
2 See also In re Federal-State Joint Board on Universal Service, 13
FCC Rcd. 11501, 11571–11572, ¶ 145 (1998) (end users “obtain telecommu
nications service from local exchange carriers, and then use information
services provided by their Internet service provider and [Web site opera
tors] in order to access [the Web]”).
3 In the DSL context, the physical connection is generally resold to the
consumer by an ISP that has taken advantage of the telephone company’s
offer. The consumer knows very well, however, that the physical connec
tion is a necessary component for Internet access which, just as in the
dial-up context, is not provided by the ISP.
4 The Court contends that this analogy is inapposite because one need
not have a pizza delivered, ante, at 992, whereas one must purchase the
cable connection in order to use cable’s ISP functions. But the ISP func
tions provided by the cable company can be used without cable delivery—
by accessing them from an Internet connection other than cable. The

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Since the delivery service provided by cable (the broad
band connection between the customer’s computer and the
cable company’s computer-processing facilities) is down
stream from the computer-processing facilities, there is no
question that it merely serves as a conduit for the informa
tion services that have already been “assembled” by the
cable company in its capacity as ISP. This is relevant be
cause of the statutory distinction between an “information
service” and “telecommunications.” The former involves
the capability of getting, processing, and manipulating infor
mation. § 153(20). The latter, by contrast, involves no
“change in the form or content of the information as sent
and received.” § 153(43). When cable-company-assembled
information enters the cable for delivery to the subscriber,
the information service is already complete. The informa
tion has been (as the statute requires) generated, acquired,
stored, transformed, processed, retrieved, utilized, or made
available. All that remains is for the information in its final,
unaltered form, to be delivered (via telecommunications) to
the subscriber.
This reveals the insubstantiality of the fear invoked by
both the Commission and the Court: the fear of what will
happen to ISPs that do not provide the physical pathway to
Internet access, yet still use telecommunications to acquire
the pieces necessary to assemble the information that they
pass back to their customers. According to this reductio,
ante, at 993–995, if cable-modem-service providers are
deemed to provide “telecommunications service,” then so
must all ISPs because they all “use” telecommunications in
providing Internet functionality (by connecting to other
merger of the physical connection and Internet functions in cable’s offer
ings has nothing to do with the “ ‘inextricably intertwined,’ ” ante, at 978,
nature of the two (like a car and its carpet), but is an artificial product of
the cable company’s marketing decision not to offer the two separately, so
that the Commission could (by the Declaratory Ruling under review here)
exempt it from common-carrier status.

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parts of the Internet, including Internet backbone providers,
for example). In terms of the pizzeria analogy, this is equiv
alent to saying that, if the pizzeria “offers” delivery, all res
taurants “offer” delivery, because the ingredients of the food
they serve their customers have come from other places; no
matter how their customers get the food (whether by eating
it at the restaurant, or by coming to pick it up themselves),
they still consume a product for which delivery was a neces
sary “input.” This is nonsense. Concluding that delivery
of the finished pizza constitutes an “offer” of delivery does
not require the conclusion that the serving of prepared food
includes an “offer” of delivery. And that analogy does not
even do the point justice, since “ ‘telecommunications serv
ice’ ” is defined as “the offering of telecommunications for a
fee directly to the public.” § 153(46) (emphasis added). The
ISPs’ use of telecommunications in their processing of infor
mation is not offered directly to the public.
The “regulatory history” on which the Court depends so
much, ante, at 992–997, provides another reason why
common-carrier regulation of all ISPs is not a worry. Under
its Computer Inquiry rules, which foreshadowed the defini
tions of “information” and “telecommunications” services,
ante, at 976–977, the Commission forbore from regulating as
common carriers “value-added networks”—non-facilities
based providers who leased basic services from common car
riers and bundled them with enhanced services; it said that
they, unlike facilities-based providers, would be deemed to
provide only enhanced services, ante, at 993–994.5 That
5 The Commission says forbearance cannot explain why value-added net
works were not regulated as basic-service providers because it was not
given the power to forbear until 1996. Reply Brief for Federal Petition
ers 3–4, n. 1. It is true that when the Commission ruled on value-added
networks, the statute did not explicitly provide for forbearance—any more
than it provided for the categories of basic and enhanced services that the
Computer Inquiry rules established, and through which the forbearance
was applied. The D. C. Circuit, however, had long since recognized the

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same result can be achieved today under the Commission’s
statutory authority to forbear from imposing most Title II
regulations. § 160. In fact, the statutory criteria for for
bearance—which include what is “just and reasonable,” “nec
essary for the protection of consumers,” and “consistent with
the public interest,” §§ 160(a)(1), (2), (3)—correspond well
with the kinds of policy reasons the Commission has invoked
to justify its peculiar construction of “telecommunications
service” to exclude cable-modem service.
The Court also puts great stock in its conclusion that
cable-modem subscribers cannot avoid using information
services provided by the cable company in its ISP capacity,
even when they only click-through to other ISPs. Ante,
at 998–1000. For, even if a cable-modem subscriber uses
e-mail from another ISP, designates some page not provided
by the cable company as his home page, and takes advantage
of none of the other standard applications and functions pro
vided by the cable company, he will still be using the cable
company’s Domain Name System (DNS) server and, when
he goes to popular Web pages, perhaps versions of them that
are stored in the cable company’s cache. This argument suf
fers from at least two problems. First, in the context of
telephone services, the Court recognizes a de minimis ex
ception to contamination of a telecommunications service by
an information service. Ante, at 997–998. A similar excep
tion would seem to apply to the functions in question here.
DNS, in particular, is scarcely more than routing informa-
Commission’s discretionary power to “forbear from Title II regulation.”
Computer and Communications Industry Assn. v. FCC, 693 F. 2d 198,
212 (1982).
The Commission also says its Computer Inquiry rules should not apply
to cable because they were developed in the context of telephone lines.
Brief for Federal Petitioners 35–36; see also ante, at 996. But to the
extent that the statute imported the Computer Inquiry approach, there
is no basis for applying it differently to cable than to telephone lines, since
the definition of “telecommunications service” applies “regardless of the
facilities used.” 47 U. S. C. § 153(46).

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tion, which is expressly excluded from the definition of “in
formation service.” § 153(20).6 Second, it is apparently
possible to sell a telecommunications service separately from,
although in conjunction with, ISP-like services; that is pre
cisely what happens in the DSL context, and the Commission
does not contest that it could be done in the context of cable.
The only impediment appears to be the Commission’s fail
ure to require from cable companies the unbundling that it
required of facilities-based providers under its Computer
Inquiry.
Finally, I must note that, notwithstanding the Commis
sion’s self-congratulatory paean to its deregulatory largesse,
e. g., Brief for Federal Petitioners 29–32, it concluded the
Declaratory Ruling by asking, as the Court paraphrases,
“whether under its Title I jurisdiction [the Commission]
should require cable companies to offer other ISPs access to
their facilities on common-carrier terms.” Ante, at 979; see
also Reply Brief for Federal Petitioners 9; Tr. of Oral Arg.
17. In other words, what the Commission hath given, the
Commission may well take away—unless it doesn’t. This is
a wonderful illustration of how an experienced agency can
(with some assistance from credulous courts) turn statutory
constraints into bureaucratic discretions. The main source
of the Commission’s regulatory authority over common carri
ers is Title II, but the Commission has rendered that inappli
cable in this instance by concluding that the definition of
“telecommunications service” is ambiguous and does not (in
6 The Court says that invoking this explicit exception from the definition
of information services, which applies only to the “management, control,
or operation of a telecommunications system or the management of a tele
communications service,” § 153(20), begs the question whether cable
modem service includes a telecommunications service, ante, at 999, n. 3.
I think not, and cite the exception only to demonstrate that the incidental
functions do not prevent cable from including a telecommunications service
if it otherwise qualifies. It is rather the Court that begs the question,
saying that the exception cannot apply because cable is not a telecommuni
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its current view) apply to cable-modem service. It contem
plates, however, altering that (unnecessary) outcome, not by
changing the law (i. e., its construction of the Title II defini
tions), but by reserving the right to change the facts.
Under its undefined and sparingly used “ancillary” powers,
the Commission might conclude that it can order cable com
panies to “unbundle” the telecommunications component of
cable-modem service.7 And presto, Title II will then apply
to them, because they will finally be “offering” telecommuni
cations service! Of course, the Commission will still have
the statutory power to forbear from regulating them under
§ 160 (which it has already tentatively concluded it would do,
Declaratory Ruling 4847–4848, ¶¶ 94–95). Such Mo¨ bius
strip reasoning mocks the principle that the statute con
strains the agency in any meaningful way.
After all is said and done, after all the regulatory cant has
been translated, and the smoke of agency expertise blown
away, it remains perfectly clear that someone who sells
cable-modem service is “offering” telecommunications. For
that simple reason set forth in the statute, I would affirm
the Court of Appeals.
II
In Part III–B of its opinion, the Court continues the
administrative-law improvisation project it began four years
ago in United States v. Mead Corp., 533 U. S. 218 (2001). To
the extent it set forth a comprehensible rule,8 Mead drasti
7 Under the Commission’s assumption that cable-modem-service provid
ers are not providing “telecommunications services,” there is reason to
doubt whether it can use its Title I powers to impose common-carrier-like
requirements, since § 153(44) specifically provides that a “telecommunica
tions carrier shall be treated as a common carrier under this chapter only
to the extent that it is engaged in providing telecommunications services”
(emphasis added), and “this chapter” includes Titles I and II.
8 For a description of the confusion Mead has produced, see Vermeule,
Mead in the Trenches, 71 Geo. Wash. L. Rev. 347, 361 (2003) (concluding
that “the Court has inadvertently sent the lower courts stumbling into a
no-man’s land”); Bressman, How Mead Has Muddled Judicial Review of

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cally limited the categories of agency action that would qual
ify for deference under Chevron U. S. A. Inc. v. Natural Re
sources Defense Council, Inc., 467 U. S. 837 (1984). For
example, the position taken by an agency before the Su
preme Court, with full approval of the agency head, would
not qualify. Rather, some unspecified degree of formal proc
ess was required—or was at least the only safe harbor. See
Mead, supra, at 245–246 (Scalia, J., dissenting).9
This meant that many more issues appropriate for agency
determination would reach the courts without benefit of an
agency position entitled to Chevron deference, requiring the
courts to rule on these issues de novo.10 As I pointed out in
Agency Action, 58 Vand. L. Rev. 1443, 1475 (2005) (“Mead has muddled
judicial review of agency action”).
9 Justice Breyer attempts to clarify Mead by repeating its formula
tions that the Court has “sometimes found reasons” to give Chevron defer
ence in a (still-unspecified) “variety of ways” or because of a (still
unspecified) “variety of indicators,” ante, at 1004 (concurring opinion)
(internal quotation marks and emphasis omitted). He also notes that def
erence is sometimes inappropriate for reasons unrelated to the agency’s
process. Surprising those who thought the Court’s decision not to defer
to the agency in General Dynamics Land Systems, Inc. v. Cline, 540 U. S.
581 (2004), depended on its conclusion that there was “no serious
question . . . about purely textual ambiguity” in the statute, id., at
600, Justice Breyer seemingly attributes that decision to a still
underdeveloped exception to Chevron deference—one for “unusually basic
legal question[s],” ante, at 1004. The Court today (thankfully) does not
follow this approach: It bases its decision on what it sees as statutory
ambiguity, ante, at 996–997, without asking whether the classification of
cable-modem service is an “unusually basic legal question.”
10 It is true that, even under the broad basis for deference that I propose
(viz., any agency position that plainly has the approval of the agency head,
see United States v. Mead Corp., 533 U. S. 218, 256–257 (2001) (Scalia, J.,
dissenting)), some interpretive matters will be decided de novo, without
deference to agency views. This would be a rare occurrence, however, at
the Supreme Court level—at least with respect to matters of any signifi
cance to the agency. Seeking to achieve 100% agency control of ambigu
ous provisions through the complicated method the Court proposes is not
worth the incremental benefit.

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dissent, this in turn meant (under the law as it was under
stood until today) 11 that many statutory ambiguities that
might be resolved in varying fashions by successive agency
administrations would be resolved finally, conclusively, and
forever, by federal judges—producing an “ossification of
large portions of our statutory law,” 533 U. S., at 247. The
Court today moves to solve this problem of its own creation
by inventing yet another breathtaking novelty: judicial deci
sions subject to reversal by executive officers.
Imagine the following sequence of events: FCC action is
challenged as ultra vires under the governing statute; the
litigation reaches all the way to the Supreme Court of the
United States. The Solicitor General sets forth the FCC’s
official position (approved by the Commission) regarding in
terpretation of the statute. Applying Mead, however, the
Court denies the agency position Chevron deference, finds
that the best interpretation of the statute contradicts the
agency’s position, and holds the challenged agency action un
lawful. The agency promptly conducts a rulemaking, and
11 The Court’s unanimous holding in Neal v. United States, 516 U. S. 284
(1996), plainly rejected the notion that any form of deference could cause
the Court to revisit a prior statutory-construction holding: “Once we have
determined a statute’s meaning, we adhere to our ruling under the doc
trine of stare decisis, and we assess an agency’s later interpretation of the
statute against that settled law.” Id., at 295. The Court attempts to
reinterpret this plain language by dissecting the cases Neal cited, noting
that they referred to previous determinations of “ ‘a statute’s clear mean
ing.’ ” Lechmere, Inc. v. NLRB, 502 U. S. 527, 537 (1992) (quoting Maislin
Industries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116, 131 (1990)).
But those cases reveal that today’s focus on the term “clear” is revisionist.
The oldest case in the chain using that word, Maislin Industries, did not
rely on a prior decision that held the statute to be clear, but on a run-of
the-mill statutory interpretation contained in a 1908 decision. Id., at 130–
131. When Maislin Industries referred to the Court’s prior determina
tion of “a statute’s clear meaning,” it was referring to the fact that the
prior decision had made the statute clear, and was not conducting a retro
spective inquiry into whether the prior decision had declared the statute
itself to be clear on its own terms.

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adopts a rule that comports with its earlier position—in ef
fect disagreeing with the Supreme Court concerning the best
interpretation of the statute. According to today’s opinion,
the agency is thereupon free to take the action that the Su
preme Court found unlawful.
This is not only bizarre. It is probably unconstitutional.
As we held in Chicago & Southern Air Lines, Inc. v. Water
man S. S. Corp., 333 U. S. 103 (1948), Article III courts do
not sit to render decisions that can be reversed or ignored
by executive officers. In that case, the Court of Appeals
had determined it had jurisdiction to review an order of the
Civil Aeronautics Board awarding an overseas air route. By
statute such orders were subject to Presidential approval
and the order in question had in fact been approved by the
President. Id., at 110–111. In order to avoid any conflict
with the President’s foreign-affairs powers, the Court of Ap
peals concluded that it would review the board’s action “as a
regulatory agent of Congress,” and the results of that review
would remain subject to approval or disapproval by the Pres
ident. Id., at 112–113. As I noted in my Mead dissent, 533
U. S., at 248, the Court bristled at the suggestion: “Judg
ments within the powers vested in courts by the Judiciary
Article of the Constitution may not lawfully be revised, over
turned or refused faith and credit by another Department
of Government.” Waterman, supra, at 113. That is what
today’s decision effectively allows. Even when the agency
itself is party to the case in which the Court construes a
statute, the agency will be able to disregard that construc
tion and seek Chevron deference for its contrary construc
tion the next time around.12
12 The Court contends that no reversal of judicial holdings is involved,
because “a court’s opinion as to the best reading of an ambiguous
statute . . . is not authoritative,” ante, at 983. That fails to appreciate the
difference between a de novo construction of a statute and a decision
whether to defer to an agency’s position, which does not even “purport to
give the statute a judicial interpretation.” Mead, supra, at 248 (Scalia,

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Of course, like Mead itself, today’s novelty in belated re
mediation of Mead creates many uncertainties to bedevil the
lower courts. A court’s interpretation is conclusive, the
Court says, only if it holds that interpretation to be “the
only permissible reading of the statute,” and not if it merely
holds it to be “the best reading.” Ante, at 984. Does this
mean that in future statutory-construction cases involving
agency-administered statutes courts must specify (presum
ably in dictum) which of the two they are holding? And
what of the many cases decided in the past, before this dic
tum’s requirement was established? Apparently, silence on
the point means that the court’s decision is subject to agency
reversal: “Before a judicial construction of a statute, whether
contained in a precedent or not, may trump an agency’s, the
court must hold that the statute unambiguously requires the
court’s construction.” 13 Ante, at 985. (I have not made,
and as far as I know the Court has not made, any calculation
of how many hundreds of past statutory decisions are now
agency-reversible because of failure to include an “unambigu
ous” finding. I suspect the number is very large.) How
much extra work will it entail for each court confronted with
an agency-administered statute to determine whether it has
reached, not only the right (“best”) result, but “the only per
missible” result? Is the standard for “unambiguous” under
the Court’s new agency-reversal rule the same as the stand
ard for “unambiguous” under step one of Chevron? (If so,
J., dissenting). Once a court has decided upon its de novo construction of
the statute, there no longer is a “different construction” that is “consistent
with the court’s holding,” ante, at 983, and available for adoption by the
agency.
13 Suggestive of the same chaotic undermining of all prior judicial deci
sions that do not explicitly renounce ambiguity is the Court’s explanation
of why agency departure from a prior judicial decision does not amount to
overruling: “[T]he agency may, consistent with the court’s holding, choose
a different construction, since the agency remains the authoritative inter
preter (within the limits of reason) of [ambiguous] statutes [it is charged
with administering].” Ibid.

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Cite as: 545 U. S. 967 (2005)
Scalia, J., dissenting
of course, every case that reaches step two of Chevron will
be agency-reversible.) Does the “unambiguous” dictum
produce stare decisis effect even when a court is affirming,
rather than reversing, agency action—so that in the future
the agency must adhere to that affirmed interpretation? If
so, does the victorious agency have the right to appeal a
Court of Appeals judgment in its favor, on the ground that
the text in question is in fact not (as the Court of Appeals
held) unambiguous, so the agency should be able to change
its view in the future?
It is indeed a wonderful new world that the Court creates,
one full of promise for administrative-law professors in need
of tenure articles and, of course, for litigators.14 I would
adhere to what has been the rule in the past: When a court
interprets a statute without Chevron deference to agency
views, its interpretation (whether or not asserted to rest
upon an unambiguous text) is the law. I might add that it
is a great mystery why any of this is relevant here. What
ever the stare decisis effect of AT&T Corp. v. Portland, 216
F. 3d 871 (CA9 2000), in the Ninth Circuit, it surely does
not govern this Court’s decision. And—despite the Court’s
peculiar, self-abnegating suggestion to the contrary, ante, at
985–986—the Ninth Circuit would already be obliged to
14 Further deossification may already be on the way, as the Court has
hinted that an agency construction unworthy of Chevron deference may
be able to trump one of our statutory-construction holdings. In Edelman
v. Lynchburg College, 535 U. S. 106, 114 (2002), the Court found “no need
to resolve any question of deference” because the Equal Employment Op
portunity Commission’s rule was “the position we would adopt even if . . .
we were interpreting the statute from scratch.” It nevertheless refused
to say whether the agency’s position was “the only one permissible.” Id.,
at 114, n. 8 (internal quotation marks omitted). Justice O’Connor ap
propriately “doubt[ed] that it is possible to reserve” the question whether
a regulation is entitled to Chevron deference “while simultaneously
maintaining . . . that the agency is free to change its interpretation” in the
future. 535 U. S., at 122 (opinion concurring in judgment). In response,
the Court cryptically said only that “not all deference is deference under
Chevron.” Id., at 114, n. 8.

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abandon Portland’s holding in the face of this Court’s deci
sion that the Commission’s construction of “telecommunica
tions service” is entitled to deference and is reasonable. It
is a sadness that the Court should go so far out of its way to
make bad law.
I respectfully dissent.

Job: 545ORD Take: NOT1 Date/Time: 03-10-08 09:56:25
Reporter’s Note
The next page is purposely numbered 1101. The numbers between
1020 and 1101 were intentionally omitted, in order to make it possible to
publish the orders with permanent page numbers, thus making the official
citations available upon publication of the preliminary prints of the United
States Reports.