Lead Opinion
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, an opinion with respect to Parts I and II, in which Justice Stevens and Justice O’Connor join, an opinion with respect to Part III-B, in which Justice Stevens joins, an opinion with respect to Part VII, in which Justice O’Connor joins, and an opinion with respect to Part VI.
This litigation concerns the constitutionality of two recurring holiday displays located on public property in downtown Pittsburgh. The first is a creche placed on the Grand Staircase of the Allegheny County Courthouse. The second is a Chanukah menorah placed just outside the City-County Building, next to a Christmas tree and a sign saluting liberty. The Court of Appeals for the Third Circuit ruled that each display violates the Establishment Clause of the First Amendment because each has the impermissible effect of endorsing re
The county courthouse is owned by Allegheny County and is its seat of government. It houses the offices of the county commissioners, controller, treasurer, sheriff, and clerk of court. Civil and criminal trials are held there. App. 69. The “main,” “most beautiful,” and “most public” part of the courthouse is its Grand Staircase, set into one arch and surrounded by others, with arched windows serving as a backdrop. Id., at 157-158; see Joint Exhibit Volume (JEV) 31.
Since 1981, the county has permitted the Holy Name Society, a Roman Catholic group, to display a creche in the county courthouse during the Christmas holiday season. App. 164. Christmas, we note perhaps needlessly, is the holiday when Christians celebrate the birth of Jesus of Nazareth, whom they believe to be the Messiah.
During the 1986-1987 holiday season, the creche was on display on the Grand Staircase from November 26 to January 9. App. 15, 59. It had a wooden fence on three sides and bore a plaque stating: “This Display Donated by the Holy Name Society.” Sometime during the week of December 2, the county placed red and white poinsettia plants around the fence. Id., at 96. The county also placed a small evergreen tree, decorated with a red bow, behind each of the two end-posts of the fence. Id., at 204; JEV 7.
The county uses the creche as the setting for its annual Christmas-carol program. See JEV 36. During the 1986 season, the county invited high school choirs and other musical groups to perform during weekday lunch hours from December 3 through December 23. The county dedicated this program to world peace and to the families of prisoners-of-war and of persons missing in action in Southeast Asia. App. 160; JEV 30.
Near the Grand Staircase is an area of the county courthouse known as the “gallery forum” used for art and other cultural exhibits. App. 163. The creche, with its fence- and-floral frame, however, was distinct and not connected with any exhibit in the gallery forum. See Tr. of Oral Arg. 7 (the forum was “not any kind of an integral part of the Christmas display”); see also JEV 32-34. In addition, various departments and offices within the county courthouse had their own Christmas decorations, but these also are not visible from the Grand Staircase. App. 167.
B
The City-County Building is separate and a block removed from the county courthouse and, as the name implies, is jointly owned by the city of Pittsburgh and Allegheny County. The city’s portion of the building houses the city’s principal offices, including the mayor’s. Id., at 17. The city is responsible for the building’s Grant Street entrance which has three rounded arches supported by columns. Id., at 194, 207.
For a number of years, the city has had a large Christmas tree under the middle arch outside the Grant Street entrance. Following this practice, city employees on Novem
“During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.” JEV 41.
At least since 1982, the city has expanded its Grant Street holiday display to include a symbolic representation of Chanukah, an 8-day Jewish holiday that begins on the 25th day of the Jewish lunar month of Kislev. App. 138.
According to Jewish tradition, on the 25th of Kislev in 164 B.C.E. (before the common era (165 B.C.)), the Maccabees rededicated the Temple of Jerusalem after recapturing it from the Greeks, or, more accurately, from the Greek-influenced Seleucid Empire, in the course of a political rebellion. Id.,
The Talmud
Although Jewish law does not contain any rule regarding the shape or substance of a Chanukah lamp (or “hanuk-kiyyah”), id., at 146, 238,
Chanukah, like Christmas, is a cultural event as well as a religious holiday. Id., at 143. Indeed, the Chanukah story always has had a political or national, as well as a religious, dimension: it tells of national heroism in addition to divine intervention.
On December 22 of the 1986 holiday season, the city placed at the Grant Street entrance to the City-County Building an 18-foot Chanukah menorah of an abstract tree-and-branch design. The menorah was placed next to the city’s 45-foot Christmas tree, against one of the columns that supports the arch into which the tree was set. The menorah is owned by Chabad, a Jewish group,
I — I I — I
This litigation began on December 10, 1986, when respondents, the Greater Pittsburgh Chapter of the American Civil Liberties Union and seven local residents, filed suit against the county and the city, seeking permanently to enjoin the county from displaying the creche in the county courthouse and the city from displaying the menorah in front of the City-
On May 8, 1987, the District Court denied respondents’ request for a permanent injunction. Relying on Lynch v. Donnelly,
Respondents appealed, and a divided panel of the Court of Appeals reversed.
The dissenting judge stated that the creche, “accompanied by poinsettia plants and evergreens, does not violate the Establishment Clause simply because plastic Santa Clauses or reindeer are absent.”
Rehearing en banc was denied by a 6-to-5 vote. See App. to Pet. for Cert, in No. 87-2050, p. 45a. The county, the city, and Chabad each filed a petition for certiorari. We granted all three petitions.
rH I — I
A
This Nation is heir to a history and tradition of religious diversity that dates from the settlement of the North American Continent. Sectarian differences among various Christian denominations were central to the origins of our Republic. Since then, adherents of religions too numerous to name have made the United States their home, as have those whose beliefs expressly exclude religion.
Precisely because of the religious diversity that is our national heritage, the Founders added to the Constitution a Bill of Rights, the very first words of which declare: “Congress shall make no law respecting an establishment of religion, or
In the course of adjudicating specific cases, this Court has come to understand the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization,
“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.” Id., at 15-16.
Our subsequent decisions further have refined the definition of governmental action that unconstitutionally advances religion. In recent years, we have paid particularly close attention to whether the challenged governmental practice either has the purpose or effect of “endorsing” religion, a concern that has long had a place in our Establishment Clause jurisprudence. See Engel v. Vitale,
Of course, the word “endorsement” is not self-defining. Rather, it derives its meaning from other words that this Court has found useful over the years in interpreting the Establishment Clause. Thus, it has been noted that the prohibition against governmental endorsement of religion “preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.” Wallace v. Jaffree,
Whether the key word is “endorsement,” “favoritism,” or “promotion,” the essential principle remains the same. The
B
We have had occasion in the past to apply Establishment Clause principles to the government’s display of objects with religious significance. In Stone v. Graham,
The rationale of the majority opinion in Lynch is none too clear: the opinion contains two strands, neither of which provides guidance for decision in subsequent cases. First, the opinion states that the inclusion of the creche in the display was “no more an advancement or endorsement of religion” than other “endorsements” this Court has approved in the past,
First and foremost, the concurrence squarely rejects any notion that this Court will tolerate some government endorsement of religion. Rather, the concurrence recognizes any endorsement of religion as “invalid,” id., at 690, because it “sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community,” id., at 688.
Second, the concurrence articulates a method for determining whether the government’s use of an object with religious meaning has the effect of endorsing religion. The effect of the display depends upon the message that the government’s practice communicates: the question is “what viewers may fairly understand to be the purpose of the display.” Id., at 692. That inquiry, of necessity, turns upon the context in which the contested object appears: “[A] typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content.” Ibid. The concurrence thus emphasizes that the constitutionality of the creche in that case depended upon its “particular physical setting,” ibid., and further observes: “Every government practice must be judged in its unique circumstances to determine whether it [endorses] religion,” id., at 694.
The four Lynch dissenters agreed with the concurrence that the controlling question was “whether Pawtucket ha[d] run afoul of the Establishment Clause by endorsing religion through its display of the creche.” Id., at 698, n. 3 (Brennan, J., dissenting). The dissenters also agreed with the
Thus, despite divergence at the bottom line, the five Justices in concurrence and dissent in Lynch agreed upon the relevant constitutional principles: the government’s use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs, and the effect of the government’s use of religious symbolism depends upon its context. These general principles are sound, and have been adopted by the Court in subsequent cases. Since Lynch, the Court has made clear that, when evaluating the effect of government conduct under the Establishment Clause, we must ascertain whether “the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.” Grand Rapids,
We turn first to the county’s creche display. There is no doubt, of course, that the creche itself is capable of communicating a religious message. See Lynch,
Under the Court’s holding in Lynch, the effect of a creche display turns on its setting. Here, unlike in Lynch, nothing in the context of the display detracts from the creche’s religious message. The Lynch display comprised a series of figures and objects, each group of which had its own focal point. Santa’s house and his reindeer were objects of attention separate from the creche, and had their specific visual story to tell. Similarly, whatever a “talking” wishing well may be, it obviously was a center of attention separate from the creche. Here, in contrast, the creche stands alone: it is the single element of the display on the Grand Staircase.
Nor does the fact that the creche was the setting for the county’s annual Christmas-carol program diminish its religious meaning. First, the carol program in 1986 lasted only from December 3 to December 23 and occupied at most one hour a day. JEV 28. The effect of the creche on those who viewed it when the choirs were not singing — the vast majority of the time — cannot be negated by the presence of the choir program. Second, because some of the carols performed at the site of the creche were religious in nature,
Furthermore, the creche sits on the Grand Staircase, the “main” and “most beautiful part” of the building that is the seat of county government. App. 157. No viewer could reasonably think that it occupies this location without the
The fact that the creche bears a sign disclosing its ownership by a Roman Catholic organization does not alter this conclusion. On the contrary, the sign simply demonstrates that the government is endorsing the religious message of that organization, rather than communicating a message of its own. But the Establishment Clause does not limit only the religious content of the government’s own communications. It also prohibits the government’s support and promotion of religious communications by religious organizations. See, e. g., Texas Monthly, Inc. v. Bullock,
Finally, the county argues that it is sufficient to validate the display of the creche on the Grand Staircase that the display celebrates Christmas, and Christmas is a national holiday. This argument-obviously proves too much. It would allow the celebration of the Eucharist inside a courthouse on Christmas Eve. While the county may have doubts about the constitutional status of celebrating the Eucharist inside the courthouse under the government’s auspices, see Tr. of Oral Arg. 8-9, this Court does not. The government may acknowledge Christmas as a cultural phenomenon, but under the First Amendment it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus.
In sum, Lynch teaches that government may celebrate Christmas in some manner and form, but not in a way that endorses Christian doctrine. Here, Allegheny County has transgressed this line. It has chosen to celebrate Christmas in a way that has the effect of endorsing a patently Christian message: Glory to God for the birth of Jesus Christ. Under Lynch, and the rest of our cases, nothing more is required to
V
Justice Kennedy and the three Justices who join him would find the display of the creche consistent with the Establishment Clause. He argues that this conclusion necessarily follows from the Court’s decision in Marsh v. Chambers,
Justice Kennedy’s reasons for permitting the creche on the Grand Staircase and his condemnation of the Court’s reasons for deciding otherwise are so far reaching in their implications that they require a response in some depth.
A
In Marsh, the Court relied specifically on the fact that Congress authorized legislative prayer at the same time that it produced the Bill of Rights. See n. 46, supra. Justice Kennedy, however, argues that Marsh legitimates all “practices with no greater potential for an establishment of religion” than those “accepted traditions dating back to the Founding.” Post, at 670, 669. Otherwise, the Justice asserts, such practices as our national motto (“In God We Trust”) and our Pledge of Allegiance (with the phrase “under God,” added in 1954, Pub. L. 396, 68 Stat. 249) are in danger of invalidity.
Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communicate an en
Indeed, in Marsh itself, the Court recognized that not even the “unique history” of legislative prayer,
B
Although Justice Kennedy’s misreading of Marsh is predicated on a failure to recognize the bedrock Establishment Clause principle that, regardless of history, government may not demonstrate a preference for a particular faith, even he is forced to acknowledge that some instances of such favoritism are constitutionally intolerable. Post, at 664-665, n. 3. He concedes also that the term “endorsement” long has been another way of defining a forbidden “preference” for
This label, of course, could be tagged on many areas of constitutional adjudication. For example, in determining whether the Fourth Amendment requires a warrant and probable cause before the government may conduct a particular search or seizure, “we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable cause requirements in the particular context,” Skinner v. Railway Labor Executives’ Assn.,
Indeed, not even under Justice Kennedy’s preferred approach can the Establishment Clause be transformed into an exception to this rule. The Justice would substitute the term “proselytization” for “endorsement,” post, at 659-660, 661, 664, but his “proselytization” test suffers from the same “defect,” if one must call it that, of requiring close factual analysis. Justice Kennedy has no doubt, “for example, that the [Establishment] Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall . . . because such an obtrusive year-round religious dis
The point of these rhetorical questions is obvious. In order to define precisely what government could and could not do under Justice Kennedy’s “proselytization” test, the Court would have to decide a series of cases with particular fact patterns that fall along the spectrum of government references to religion (from the permanent display of a cross atop city hall to a passing reference to divine Providence in an official address). If one wished to be “uncharitable” to Justice Kennedy, see post, at 675, one could say that his methodology requires counting the number of days during which the government displays Christian symbols and subtracting from this the number of days during which non-Christian symbols are displayed, divided by the number of different non-Christian religions represented in these displays, and then somehow factoring into this equation the prominence of the display’s location and the degree to which each symbol possesses an inherently proselytizing quality. Justice Kennedy, of course, could defend his position by pointing to the inevitably fact-specific nature of the question whether a particular governmental practice signals the government’s
Indeed, perhaps the only real distinction between Justice Kennedy’s “proselytization” test and the Court’s “endorsement” inquiry is a burden of “unmistakable” clarity that Justice Kennedy apparently would require of government favoritism for specific sects in order to hold the favoritism in violation of the Establishment Clause. Post, at 664-665, n. 3. The question whether a particular practice “would place the government’s weight behind an obvious effort to proselytize for a particular religion,” post, at 661, is much the same as whether the practice demonstrates the government’s support, promotion, or “endorsement” of the particular creed of a particular sect — except to the extent that it requires an “obvious” allegiance between the government and the sect.
Our cases, however, impose no such burden on demonstrating that the government has favored a particular sect or creed. On the contrary, we have expressly required “strict
Although Justice Kennedy repeatedly accuses the Court of harboring a “latent hostility” or “callous indifference” toward religion, post, at 657, 664, nothing could be further from the truth, and the accusations could be said to be as offensive as they are absurd. Justice Kennedy apparently has mis-perceived a respect for religious pluralism, a respect commanded by the Constitution, as hostility or indifference to religion. No misperception could be more antithetical to the values embodied in the Establishment Clause.
Justice Kennedy’s accusations are shot from a weapon triggered by the following proposition: if government may celebrate the secular aspects of Christmas, then it must be allowed to celebrate the religious aspects as well because, otherwise, the government wTould be discriminating against citizens who celebrate Christmas as a religious, and not just a secular, holiday. Post, at 663-664. This proposition, however, is flawed at its foundation. The government does not discriminate against any citizen on the basis of the citizen’s religious faith if the government is secular in its functions and operations. On the contrary, the Constitution mandates that the government remain secular, rather than affiliate itself with religious beliefs or institutions, precisely in order to avoid discriminating among citizens on the basis of their religious faiths.
A secular state, it must be remembered, is not the same as an atheistic or antireligious state. A secular state establishes neither atheism nor religion as its official creed. Justice Kennedy thus has it exactly backwards when he says that enforcing the Constitution’s requirement that govern
To be sure, in a pluralistic society there may be some would-be theocrats, who wish that their religion were an established creed, and some of them perhaps may be even audacious enough to claim that the lack of established religion discriminates against their preferences. But this claim gets no relief, for it contradicts the fundamental premise of the Establishment Clause itself. The antidiscrimination principle inherent in the Establishment Clause necessarily means that would-be discriminators on the basis of religion cannot prevail.
For this reason, the claim that prohibiting government from celebrating Christmas as a religious holiday discriminates against Christians in favor of nonadherents must fail. Celebrating Christmas as a religious, as opposed to a secular, holiday, necessarily entails professing, proclaiming, or believing that Jesus of Nazareth, born in a manger in Bethlehem, is the Christ, the Messiah. If the government celebrates Christmas as a religious holiday (for example, by issuing an official proclamation saying: “We rejoice in the glory of Christ’s birth!”), it means that the government really is declaring Jesus to be the Messiah, a specifically Christian belief. In contrast, confining the government’s own celebration of Christmas to the holiday’s secular aspects does not favor the religious beliefs of non-Christians over those of Christians. Rather, it simply permits the government to acknowledge the holiday without expressing an allegiance to
Of course, not all religious celebrations of Christmas located on government property violate the Establishment Clause. It obviously is not unconstitutional, for example, for a group of parishioners from a local church to go caroling through a city park on any Sunday in Advent or for a Christian club at a public university to sing carols during their Christmas meeting. Cf. Widmar v. Vincent,
Equally obvious, however, is the proposition that not all proclamations of Christian faith located on government property are permitted by the Establishment Clause just because they occur during the Christmas holiday season, as the example of a Mass in the courthouse surely illustrates. And once the judgment has been made that a particular proclamation of Christian belief, when disseminated from a particular location on government property, has the effect of demonstrating the government’s endorsement of Christian faith, then it necessarily follows that the practice must be enjoined to protect the constitutional rights of those citizens who follow some creed other than Christianity. It is thus incontrovertible that the Court’s decision today, premised on the determination that the creche display on the Grand Staircase demon
VI
The display of the Chanukah menorah in front of the City-County Building may well present a closer constitutional question. The menorah, one must recognize, is a religious symbol: it serves to commemorate the miracle of the oil as described in the Talmud. But the menorah’s message is not exclusively religious. The menorah is the primary visual
Moreover, the menorah here stands next to a Christmas tree and a sign saluting liberty. While no challenge has been made here to the display of the tree and the sign, their presence is obviously relevant in determining the effect of the menorah’s display. The necessary result of placing a menorah next to a Christmas tree is to create an “overall holiday setting” that represents both Christmas and Chanukah — two holidays, not one. See Lynch,
The mere fact that Pittsburgh displays symbols of both Christmas and Chanukah does not end the constitutional inquiry. If the city celebrates both Christmas and Chanukah as religious holidays, then it violates the Establishment Clause.
Conversely, if the city celebrates both Christmas and Chanukah as secular holidays, then its conduct is beyond the reach of the Establishment Clause. Because government may celebrate Christmas as a secular holiday,
The Christmas tree, unlike the menorah, is not itself a religious symbol. Although Christmas trees once carried religious connotations, today they typify the secular celebration of Christmas. See American Civil Liberties Union of Illinois v. St. Charles,
The tree, moreover, is clearly the predominant element in the city’s display. The 45-foot tree occupies the central position beneath the middle archway in front of the Grant Street entrance to the City-County Building; the 18-foot menorah is positioned to one side. Given this configuration, it is much more sensible to interpret the meaning of the menorah in light of the tree, rather than vice versa. In the shadow of the tree, the menorah is readily understood as simply a recognition that Christmas is not the only traditional way of observing the winter-holiday season. In these circumstances, then, the combination of the tree and the menorah communicates, not a simultaneous endorsement of both the Christian
Although the city has used a symbol with religious meaning as its representation of Chanukah, this is not a case in which the city has reasonable alternatives that are less religious in nature. It is difficult to imagine a predominantly secular symbol of Chanukah that the city could place next to its Christmas tree. An 18-foot dreidel would look out of place and might be interpreted by some as mocking the celebration of Chanukah. The absence of a more secular alternative symbol is itself part of the context in which the city’s actions must be judged in determining the likely effect of its use of the menorah. Where the government’s secular message can be conveyed by two symbols, only one of which carries religious meaning, an observer reasonably might infer from the fact that the government has chosen to use the religious symbol that the government means to promote religious faith. See Abington School District v. Schempp,
The conclusion here that, in this particular context, the menorah’s display does not have an effect of endorsing reli
VII
Lynch v. Donnelly confirms, and in no way repudiates, the longstanding constitutional principle that government may not engage in a practice that has the effect of promoting or endorsing religious beliefs. The .display of the creche in the county courthouse has this unconstitutional effect. The display of the menorah in front of the City-County Building, however, does not have this effect, given its “particular physical setting.”
The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for further proceedings.
It is so ordered.
Notes
See 8 Encyclopedia of Religion, “Jesus,” 15, 18 (1987).
See 3 Encyclopedia of Religion, “Christmas,” 460 (1987). Some eastern churches, however, have not adopted December 25 as the Feast of the Nativity, retaining January 6 as the date for celebrating both the birth and the baptism of Jesus. R. Myers, Celebrations: The Complete Book of American Holidays 15, 17 (1972) (Myers).
“[T]he Christmas holiday in our national culture contains both secular and sectarian elements.” Lynch v. Donnelly,
Luke 2:1-21; Matthew 2:1-11.
This phrase comes from Luke, who tells of an angel appearing to the shepherds to announce the birth of the Messiah. After the angel told the shepherds that they would find the baby lying in a manger, “suddenly there was with the angel a multitude of the heavenly host praising God, and saying, Glory to God in the highest, and on earth peace, good will towards men.” Luke 2:13-14 (King James Version). It is unlikely that an observer standing at the bottom of the Grand Staircase would be able to read the text of the angel’s banner from that distance, but might be able to do so from a closer vantage point.
On each side of the staircase was a sign indicating the direction of county offices. JEV 7-8. A small evergreen tree, decorated much like the trees behind the endposts, was placed next to each directional sign. Ibid.
In the arched windows behind the staircase were two large wreaths, each with a large red ribbon. Ibid.
See generally A. Bloch, The Biblical and Historical Background of the Jewish Holy Days 49-78 (1978) (Bloch, Holy Days); A. Bloch, The Biblical and Historical Background of Jewish Customs and Ceremonies 267-278 (1980) (Bloch, Ceremonies); 6 Encyclopedia of Religion, “Hanukkah,” 193-194; 7 Encyclopaedia Judaica, “Hanukkah,” 1280-1288 (1972); 0. Rankin, The Origins of the Festival of Hanukkah (1930) (Rankin); A. Chill, The Minhagim 241-254 (1979) (Chill); L. Trepp, The Complete Book of Jewish Observance 137-151 (1980) (Trepp); M. Strassfeld, The Jewish Holidays 161-177 (1985) (Strassfeld).
See Columbia Encyclopedia 1190 (4th ed. 1975); J. Williams, What Americans Believe and How they Worship 348 (3d ed. 1969); Myers 302; see also Strassfeld 202; see generally A. Spier, The Comprehensive Hebrew Calendar (1981).
See P. Johnson, A History of the Jews 104 (1987) (Johnson); R. Seltzer, Jewish People, Jewish Thought: The Jewish Experience in History 158 (1980) (Seltzer).
The word Chanukah, sometimes spelled Chanukkah or Hanukkah, is drawn from the Hebrew for “dedication.” 7 Encyclopaedia Judaica 1280.
See Strassfeld 161-163; Rankin 133.
The Talmud (specifically the Babylonian Talmud) is a collection of rabbinic commentary on Jewish law that was compiled before the sixth century, App. 140. See 14 Encyclopedia of Religion, “Talmud,” 256-259; see also Seltzer 265.
“Menorah” is Hebrew for “candelabrum.” See 11 Encyclopaedia Ju-daica, “Menorah,” at 1356.
See The Babylonian Talmud, Seder Mo’ed, 1 Shabbath 21b (Soncino Press 1938); Strassfeld 163; Trepp 143.
Cf. “Mitzvah,” in 12 Encyclopaedia Judaica 162 (4th ed., 1972) (“In common usage, mitzvah has taken on the meaning of a good deed. Already in the Talmud, this word was used for a meritorious act as distinct from a positive commandment”). The plural of mitzvah is mitzvot.
See also Bloch, Ceremonies 269. According to some Jewish authorities the miracle of Chanukah is the success of the Maccabees over the Seleucids, rather than the fact that the oil lasted eight days. App. 141. Either way, the purpose of lighting the Chanukah candles, as a religious mitzvah, is to celebrate a miracle. Ibid.
Trepp 146; 7 Encyclopaedia Judaica 1283; Talmud Shabbath 21b.
Bloch, Ceremonies 274.
Another translation is “Praised are you, Lord our God, Ruler of the universe, who has sanctified our lives through His commandments, commanding us to kindle the Hanukkah lights.” Strassfeld 167.
Trepp 145; see generally 7 Encyclopaedia Judaica, “Hanukkah Lamp,” 1288-1316.
The design of the menorah is set forth in Exodus 25:31-40; see also 11 Encyclopaedia Judaica 1356-1370.
Bloch, Ceremonies 274-275.
A Torah scroll — which contains the five Books of Moses — must be buried in a special manner when it is no longer usable. App. 237-238.
Strassfeld 167; Bloch, Ceremonies 277.
Id., at 277-278; Trepp 147. It is also a custom to serve potato pancakes or other fried foods on Chanukah because the oil in which they are fried is, by tradition, a reminder of the miracle of Chanukah. App. 242-243; Strassfeld 168.
Id., at 164.,
Trepp 144, 150; 6 Encyclopedia of Religion 193; see also Strassfeld 176. Of course, the celebration of Christmas and Chanukah in the Southern Hemisphere occurs during summer. Nonetheless, both Christmas and Chanukah first developed in the Northern Hemisphere and have longstanding cultural associations with the beginning of winter. In fact, ancient rabbis chose Chanukah as the means to mark the beginning of winter. See Bloch, Holy Days 77.
See also App. 229, 237. The Court of Appeals in this litigation plainly erred when it asserted that Chanukah “is not ... a holiday with secular aspects.”
In response to further questioning, the expert added that the celebration of Chanukah as a cultural event “certainly exists.” Ibid. Thus, on this record, Chanukah unquestionably has “secular aspects,” although it is also a religious holiday. See Chill 241 (Chanukah is celebrated by secular as well as religious Jews).
Strassfeld 164-165; see also 7 Encyclopaedia Judaica 1288.
“In America, Hanukkah has been influenced by the celebration of Christmas. While a tradition of giving Hanukkah gelt — money—is an old one, the proximity to Christmas has made gift giving an intrinsic part of the holiday.” Strassfeld 164.
“In general, the attempt to create a Jewish equivalent to Christmas has given Hanukkah more significance in the festival cycle than it has had in the past.” Ibid. “Hanukkah has prospered because it comes about the same time as Christmas and can be used as the Jewish equivalent.” D. Elazar, Community and Polity: The Organizational Dynamics of American Jewry 119 (1976). “Hanukkah was elaborated by American Jews to protect the child and to defend Judaism against the glamour and seductive power of Christmas.” C. Liebman, The Ambivalent American Jew 66 (1973). See also M. Sklare & J. Greenblum, Jewish Identity on the Suburban Frontier 58 (1967):
“The aspects of Hanukkah observance currently emphasized — the exchange of gifts and the lighting and display of the menorah in the windows of homes — offer ready parallels to the general mode of Christmas observance as well as provide a ‘Jewish’ alternative to the holiday. Instead of alienating the Jew from the general culture, Hanukkah helps situate him as a participant in that culture. Hanukkah, in short, becomes for some the Jewish Christmas.”
See Chill 241 (from the perspective of Jewish religious law, Chanukah is “only a minor festival”).
Additionally, menorahs — like Chanukah itself — have a secular as well as a religious dimension. The record in this litigation contains a passing reference to the fact that menorahs “are used extensively by secular Jewish organizations to represent the Jewish people.” App. 310.
Chabad, also known as Lubavitch, is an organization of Hasidic Jews who follow the teachings of a particular Jewish leader, the Lubavitch Rebbe. Id.., at 228, 253-254. The Lubavitch movement is a branch of Hasidism, which itself is a branch of orthodox Judaism. Id., at 249-250. Pittsburgh has a total population of 45,000 Jews; of these, 100 to 150 families attend synagogue at Pittsburgh’s Lubavitch Center. Id., at 247-251.
Respondents also sought a preliminary injunction against the display of the creche and menorah for the 1986-1987 holiday season. Characterizing the créche and menorah as “de minimis in the context of the First Amendment,” the District Court on December 15 denied respondents’ motion for preliminary injunctive relief. Id., at 10.
Respondents, however, do not claim that the city’s Christmas tree violates the Establishment Clause and do not seek to enjoin its display. Respondents also do not claim that the county’s Christmas-carol program is unconstitutional. See Tr. of Oral Arg. 32.
In addition to agreeing with the city that the menorah’s display does not violate the Establishment Clause, Chabad contends that it has a constitutional right to display the menorah in front of the City-County Building. In light of the Court’s disposition of the Establishment Clause question as to the menorah, there is no need to address Chabad’s contention.
See also M. Borden, Jews, Turks, and Infidels (1984) (charting the history of discrimination against non-Christian citizens of the United States in the 18th and 19th centuries); Laycock, “Nonpreferential” Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875, 919-920 (1986) (Laycock) (the intolerance of late 18th-century Americans towards Catholics, Jews, Moslems, and atheists cannot be the basis of interpreting the Establishment Clause today).
A State may neither allow public-school students to receive religious instruction on public-school premises, Illinois ex rel. McCollum v. Board of Education of School Dist. No. 71, Champaign County,
A statute that conditions the holding of public office on a belief in the existence of God is unconstitutional, Torcaso v. Watkins,
Larkin v. Grendel’s Den, Inc.,
See Aguilar v. Felton,
See, e. g., Bowen v. Kendrick,
There is no need here to review the applications in Lynch of the “purpose” and “entanglement” elements of the Lemon inquiry, since in the present action the Court of Appeals did not consider these issues.
The difference in approach between the Lynch majority and the concurrence is especially evident in each opinion’s treatment of Marsh v. Chambers,
The concurrence, in contrast, harmonized the result in Marsh with the endorsement principle in a rigorous way, explaining that legislative prayer (like the invocation that commences each session of this Court) is a form of acknowledgment of religion that “servefs], in the only wa[y] reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.”
The county and the city argue that their use of religious symbols does not violate the Establishment Clause unless they are shown to be “coercive.” Reply Brief for Petitioners County of Allegheny et al. 1-6; Tr. of Oral Arg. 9,11. They recognize that this Court repeatedly has stated that
The presence of Santas or other Christmas decorations elsewhere in the county courthouse, and of the nearby gallery forum, fail to negate the
See App. 169 (religious as well as nonreligious carols were sung at the program).
The Grand Staircase does not appear to be the kind of location in which all were free to place their displays for weeks at a time, so that the presence of the creche in that location for over six weeks would then not serve to associate the government with the creche. Even if the Grand Staircase occasionally was used for displays other than the créche (for example, a display of flags commemorating the 25th anniversary of Israel’s independence, id., at 176), it remains true that any display located there fairly may be understood to express views that receive the support and endorsement of the government. In any event, the county’s own press releases made clear to the public that the county associated itself with the creche. JEV 28 (flier identifying the choral program as county sponsored); id., at 30; App. 174 (linking the creche to the choral program). Moreover, the county created a visual link between itself and the creche: it placed next to official county signs two small evergreens identical to those in the creche display. In this respect, the creche here does not raise the kind of “public forum” issue, cf. Widmar v. Vincent,
Nor can the display of the creche be justified as an “accommodation” of religion. See Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos,
It is worth noting that just because Marsh sustained the validity of legislative prayer, it does not necessarily follow that practices like proclaiming a National Day of Prayer are constitutional. See post, at 672-673. Legislative prayer does not urge citizens to engage in religious practices, and on that basis could well be distinguishable from an exhortation from government to the people that they engage in religious conduct. But, as this practice is not before us, we express no judgment about its constitutionality.
Among the stories this scholar recounts is one that is especially apt in light of Justice Kennedy’s citation of Thanksgiving Proclamations, post, at 671:
“When James H. Hammond, governor of South Carolina, announced a day of ‘Thanksgiving, Humiliation, and Prayer’ in 1844, he . . . exhorted ‘our citizens of all denominations to assemble at their respective places of worship, to offer up their devotions to God their Creator, and his Son Jesus Christ, the Redeemer of the world.’ The Jews of Charleston protested, charging Hammond with ‘such obvious discrimination and preference in the tenor of your proclamation, as amounted to an utter exclusion of a portion of the people of South Carolina.’ Hammond responded that T have always thought it a settled matter that I lived in a Christian land! And that I was the temporary chief magistrate of a Christian people. That in such a country and among such a people I should be, publicly, called to an account, reprimanded and required to make amends for acknowledging Jesus Christ as the Redeemer of the world, I would not have believed possible, if it had not come to pass’ (The Occident, January 1845).” Borden 142, n. 2 (emphasis in Borden).
Thus, not all Thanksgiving Proclamations fit the nonsectarian or deist mold as did those examples quoted by Justice Kennedy. Moreover, the Jews of Charleston succinctly captured the precise evil caused by such sectarian proclamations as Governor Hammond’s: they demonstrate an official preference for Christianity and a corresponding official discrimination against all non-Christians, amounting to an exclusion of a portion of the political community. It is against this very evil that the Establishment Clause, in part, is directed. Indeed, the Jews of Charleston could not better have formulated the essential concepts of the endorsement inquiry.
In 1776, for instance, Maryland adopted a “Declaration of Rights” that allowed its legislature to impose a tax “for the support of the Christian religion” and a requirement that all state officials declare “a belief in the Christian religion.” 1 A. Stokes, Church and State in the United States 865-866 (1950). Efforts made in 1797 to remove these discriminations against non-Christians were unsuccessful. Id., at 867. See also id., at 513 (quot
Justice Kennedy evidently believes that contemporary references to exclusively Christian creeds (like the Trinity or the divinity of Jesus) in official acts or proclamations is justified by the religious sentiments of those responsible for the adoption of the First Amendment. See 2 J. Story, Commentaries on the Constitution of the United States § 1874, p. 663 (1858) (at the time of the First Amendment’s adoption, “the general, if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state”). This Court, however, squarely has rejected the proposition that the Establishment Clause is to be interpreted in light of any favoritism for Christianity that may have existed among the Founders of the Republic. Wallace v. Jaffree,
In describing what would violate his “proselytization” test, JUSTICE Kennedy uses the adjectives “permanent,” “year-round,” and “continual,” post, at 661, 664-665, n. 3, as if to suggest that temporary acts of favoritism for a particular sect do not violate the Establishment Clause. Presumably, however, Justice Kennedy does not really intend these adjectives to define the limits of his principle, since it is obvious that the government’s efforts to proselytize may be of short duration, as Governor Hammond’s Thanksgiving Proclamation illustrates. See n. 53, supra. In any event, the Court repudiated any notion that preferences for particular religious beliefs are permissible unless permanent when, in Bowen v. Kendrick,
It is not clear, moreover, why Justice Kennedy thinks the display of the creche in this lawsuit is permissible even under his lax “proselytization” test. Although early on in his opinion he finds “no realistic risk that the creche . . . represents] an effort to proselytize,” post, at 664, at the end he concludes: “[T]he eager proselytizer may seek to use [public creche displays] for his own ends. The urge to use them to teach or to taunt is ahvays present.” Post, at 678 (emphasis added). Whatever the cause of this inconsistency, it should be obvious to all that the creche on the Grand Staircase communicates the message that Jesus is the Messiah and to be worshipped as such, an inherently prosyletizing message if ever there was one. In fact, the angel in the creche display represents, according to Christian tradition, one of the original “proselytizers” of the Christian faith: the angel who appeared to the shepherds to tell them of the birth of Christ. Thus, it would seem that Justice Kennedy should find this display unconstitutional according to a consistent application of his principle that government may not place its weight behind obvious efforts to proselytize Christian creeds specifically.
Contrary to Justice Kennedy’s assertion, the Court’s decision in Lynch does not foreclose this conclusion. Lynch certainly is not “dispos-itive of [a] claim,” post, at 665, regarding the government’s display of a creche bearing an explicitly proselytizing sign (like “Let’s all rejoice in
Thus, Justice Kennedy is incorrect when he says, post, at 674, n. 10, that the Court fails to explain why today’s decision does not require the elimination of all religious Christmas music from public property.
In his attempt to legitimate the display of the creche on the Grand Staircase, Justice Kennedy repeatedly characterizes it as an “accommodation” of religion. See, e. g., post, at 663, 664. But an accommodation of religion, in order to be permitted under the Establishment Clause, must lift “an identifiable burden on the exercise of religion.” Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos,
One may agree with Justice Kennedy that the scope of accommodations permissible under the Establishment Clause is larger than the scope of accommodations mandated by the Free Exercise Clause. See post, at 663, n. 2. An example prompted by the Court’s decision in Goldman v. Weinberger,
Justice Kennedy is clever but mistaken in asserting that the description of the menorah, supra, at 582-587, purports to turn the Court into a “national theology board.” Post, at 678. Any inquiry concerning the government’s use of a religious object to determine whether that use results in an unconstitutional religious preference requires a review of the factual record concerning the religious object — even if the inquiry is conducted pursuant to Justice Kennedy’s “proselytization” test. Surely, Justice Kennedy cannot mean that this Court must keep itself in ignorance of the symbol’s conventional use and decide the constitutional question knowing only what it knew before the case was filed. This prescription of ignorance obviously would bias this Court according to the religious and cultural backgrounds of its Members, a condition much more intolerable than any which results from the Court’s efforts to become familiar with the relevant facts.
Moreover, the relevant facts concerning Chanukah and the menorah are largely to be found in the record, as indicated by the extensive citation to the Appendix, supra, at 582-585. In any event, Members of this Court have not hesitated in referring to secondary sources in aid of their Establishment Clause analysis, see, e. g., Lynch,
The display of a menorah next to a creche on government property might prove to be invalid. Cf. Greater Houston Chapter of American Civil Liberties Union v. Eckels,
It is worth recalling here that no Member of the Court in Lynch suggested that government may not celebrate the secular aspects of Christmas. On the contrary, the four dissenters there stated: “If public officials . . . participate in the secular celebration of Christmas — by, for example, decorating public places with such secular images as wreaths, garlands, or Santa Claus figures — they move closer to the limits of their constitutional power but nevertheless remain within the boundaries set by the Establishment Clause.”
Thus, to take the most obvious of examples, if it were permissible for the city to display in front of the City-County Building a banner exclaiming “Merry Christmas,” then it would also be permissible for the city to display in the same location a banner proclaiming “Happy Chanukah.”
Justice Brennan, however, seems to suggest that even this practice is problematic because holidays associated with other religious traditions would be excluded. See post, at 644. But when the government engages in the secular celebration of Christmas, without any reference to holidays celebrated by non-Christians, other traditions are excluded — and yet
It is distinctly implausible to view the combined display of the tree, the sign, and the menorah as endorsing the Jewish faith alone. During the time of this litigation, Pittsburgh had a population of 387,000, of which approximately 45,000 were Jews. U. S. Dept, of Commerce, Bureau of Census, Statistical Abstract of the United States 34 (108th ed. 1988); App. 247. When a city like Pittsburgh places a symbol of Chanukah next to a symbol of Christmas, the result may be a simultaneous endorsement of Christianity and Judaism (depending upon the circumstances of the display). But the city’s addition of a visual representation of Chanukah to its pre-existing Christmas display cannot reasonably be understood as an endorsement of Jewish — yet not Christian — belief. Thus, unless the combined Christmas-Chanukah display fairly can be seen as a double endorsement of Christian and Jewish faiths, it must be viewed as celebrating both holidays without endorsing either faith.
The conclusion that Pittsburgh’s combined Christmas-Chanukah display cannot be interpreted as endorsing Judaism alone does not mean, however, that it is implausible, as a general matter, for a city like Pittsburgh to endorse a minority faith. The display of a menorah alone might well have that effect.
See also Barnett 141-142 (describing the Christmas tree, along with gift giving and Santa Claus, as those aspects of Christmas which have be
Although the Christmas tree represents the secular celebration of Christmas, its very association with Christmas (a holiday with religious dimensions) makes it conceivable that the tree might be seen as representing Christian religion when displayed next to an object associated with Jewish religion. For this reason, I agree with Justice Brennan and Justice Stevens that one must ask whether the tree and the menorah together endorse the religious beliefs of Christians and Jews. For the reasons stated in the text, however, I conclude the city’s overall display does not have this impermissible effect.
Contrary to the assertions of Justice O’ConnoR and Justice Kennedy, I have not suggested here that the government’s failure to use an available secular alternative necessarily results in an Establishment Clause violation. Rather, it suffices to say that the availability or unavailability of secular alternatives is an obvious factor to be considered in deciding whether the government’s use of a religious symbol amounts to an endorsement of religious faith.
In Lynch, in contrast, there was no need for Pawtucket to include a creche in order to convey a secular message about Christmas. See
Thus, the menorah retains its religious significance even in this display, but it does not follow that the city has endorsed religious belief over nonbelief. In displaying the menorah next to the tree, the city has demonstrated no preference for the religious celebration of the holiday season. This conclusion, however, would be untenable had the city substituted a creche for its Christmas tree or if the city had failed to substitute for the menorah an alternative, more secular, representation of Chanukah.
This is not to say that the combined display of a Christmas tree and a menorah is constitutional wherever it may be located on government property. For example, when located in a public school, such a display might raise additional constitutional considerations. Cf. Edwards v. Aguillard,
In addition, nothing in this opinion forecloses the possibility that on other facts a menorah display could constitute an impermissible endorsement of religion. Indeed, there is some evidence in this record that in the past Chabad lit the menorah in front of the City-County Building in a religious ceremony that included the recitation of traditional religious blessings. See App. 281. Respondents, however, did not challenge this practice, there are no factual findings on it, and the Court of Appeals did not consider it in deciding that the display of a menorah in this location necessarily endorses Judaism. See
There is also- some suggestion in the record that Chabad advocates the public display of menorahs as part of its own proselytizing mission, but again there have been no relevant factual findings that would enable this Court to conclude that Pittsburgh has endorsed Chabad’s particular proselytizing message. Of course, nothing in this opinion forecloses a challenge to a menorah display based on such factual findings.
Concurrence Opinion
with whom Justice Brennan and Justice Stevens join as to Part II, concurring in part and concurring in the judgment.
I — I
Judicial review of government action under the Establishment Clause is a delicate task. The Court has avoided drawing lines which entirely sweep away all government recognition and acknowledgment of the role of religion in the lives of our citizens for to do so would exhibit not neutrality but hostility to religion. Instead the courts have made case-specific examinations of the challenged government action and have attempted to do so with the aid of the standards described by Justice Blackmun in Part III-A of the Court’s opinion. Ante, at 590-594. Unfortunately, even the development of articulable standards and guidelines has not always resulted in agreement among the Members of this Court on the results in individual cases. And so it is again today.
The constitutionality of the two displays at issue in these cases turns on how we interpret and apply the holding in Lynch v. Donnelly,
The Lynch Court began its analysis by stating that Establishment Clause cases call for careful line-drawing: “[N]o fixed, per se rule can be framed.” Id., at 678. Although de-
The Court also concluded that inclusion of the creche in the display did not have the primary effect of advancing religion. “[Djisplay of the creche is no more an advancement or endorsement of religion than the Congressional and Executive recognition of the origins of the Holiday itself as ‘Christ’s Mass,’ or the exhibition of literally hundreds of religious paintings in governmentally supported museums.” Id., at 683. Finally, the Court found no excessive entanglement between religion and government. There was “no evidence of contact with church authorities concerning the content or design of the exhibit prior to or since Pawtucket’s purchase of the creche.” Id., at 684.
I joined the majority opinion in Lynch because, as I read that opinion, it was consistent with the analysis set forth in my separate concurrence, which stressed that “[ejvery gov
In my concurrence in Lynch, I suggested a clarification of our Establishment Clause doctrine to reinforce the concept that the Establishment Clause “prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community.” Id., at 687. The government violates this prohibition if it endorses or disapproves of religion. Id., at 688. “Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Ibid. Disapproval of religion conveys the opposite message. Thus, in my view, the central issue in Lynch was whether the city of Pawtucket had
In Lynch, I concluded that the city’s display of a creche in its larger holiday exhibit in a private park in the commercial district had neither the purpose nor the effect of conveying a message of government endorsement of Christianity or disapproval of other religions. The purpose of including the creche in the larger display was to celebrate the public holiday through its traditional symbols, not to promote the religious content of the creche. Id., at 691. Nor, in my view, did Pawtucket’s display of the creche along with secular symbols of the Christmas holiday objectively convey a message of endorsement of Christianity. Id., at 692.
For the reasons stated in Part IV of the Court’s opinion in these cases, I agree that the creche displayed on the Grand Staircase of the Allegheny County Courthouse, the seat of county government, conveys a message to nonadherents of Christianity that they are not full members of the political community, and a corresponding message to Christians that they are favored members of the political community. In contrast to the creche in Lynch, which was displayed in a private park in the city’s commercial district as part of a broader display of traditional secular symbols of the holiday season, this creche stands alone in the county courthouse. The display of religious symbols in public areas of core government buildings runs a special risk of “mak[ing] religion relevant, in reality or public perception, to status in the political community.” Lynch, supra, at 692 (concurring opinion). See also American Jewish Congress v. Chicago,
II
In his separate opinion, Justice Kennedy asserts that the endorsement test “is flawed in its fundamentals and unworkable in practice.” Post, at 669 (opinion concurring in judgment in part and dissenting in part). In my view, neither criticism is persuasive. As a theoretical matter, the endorsement test captures the essential command of the Establishment Clause, namely, that government must not make a person’s religious beliefs relevant to his or her standing in the political community by conveying a message “that religion or a particular religious belief is favored or preferred.” Wallace v. Jaffree,
An Establishment Clause standard that prohibits only “coercive” practices or overt efforts at government proselytization, post, at 659-662, 664-665, but fails to take account of the numerous more subtle ways that government can show favor
I continue to believe that the endorsement test asks the right question about governmental practices challenged on Establishment Clause grounds, including challenged practices involving the display of religious symbols. Moreover, commentators in the scholarly literature have found merit in the approach. See, e. g., Beschle, supra, at 174; Comment, Lemon Reconstituted: Justice O’Connor’s Proposed Modifications of the Lemon Test for Establishment Clause Violations, 1986 B. Y. U. L. Rev. 465; Marshall, “We Know It When We
Justice Kennedy submits that the endorsement test is inconsistent with our precedents and traditions because, in his words, if it were “applied without artificial exceptions for historical practice,” it would invalidate many traditional practices recognizing the role of religion in our society. Post, at 670. This criticism shortchanges both the endorsement test itself and my explanation of the reason why certain longstanding government acknowledgments of religion do not, under that test, convey a message of endorsement. Practices such as legislative prayers or opening Court sessions with “God save the United States and this honorable Court” serve the secular purposes of “solemnizing public occasions” and “expressing confidence in the future,” Lynch,
Under the endorsement test, the “history and ubiquity” of a practice is relevant not because it creates an “artificial exception” from that test. On the contrary, the “history and ubiquity” of a practice is relevant because it provides part of the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsement of religion. It is the combination of the
Contrary to Justice Kennedy’s assertions, neither the endorsement test nor its application in these cases reflects “an unjustified hostility toward religion.” Post, at 655. See also post, at 663, 667-678. Instead, the endorsement standard recognizes that the religious liberty so precious to the citizens who make up our diverse country is protected, not impeded, when government avoids endorsing religion or favoring particular beliefs over others. Clearly, the government can acknowledge the role of religion in our society in numerous ways that do not amount to an endorsement. See Lynch, supra, at 693 (concurring opinion). Moreover, the government can accommodate religion by lifting government-imposed burdens on religion. See Wallace v. Jaffree, 472
Ill
For reasons which differ somewhat from those set forth in Part VI of Justice Blackmun’s opinion, I also conclude that the city of Pittsburgh’s combined holiday display of a Chanukah menorah, a Christmas tree, and a sign saluting liberty does not have the effect of conveying an endorsement of religion. I agree with Justice Blackmun, ante, at 616-617,
That formulation of the question disregards the fact that the Christmas tree is a predominantly secular symbol and, more significantly, obscures the religious nature of the menorah and the holiday of Chanukah. The opinion is correct to recognize that the religious holiday of Chanukah has historical and cultural as well as religious dimensions, and that there may be certain “secular aspects” to the holiday. But that is not to conclude, however, as Justice Blackmun seems to do, that Chanukah has become a “secular holiday” in our society. Ante, at 615. The Easter holiday celebrated by Christians may be accompanied by certain “secular aspects” such as Easter bunnies and Easter egg hunts; but it is nevertheless a religious holiday. Similarly, Chanukah is a religious holiday with strong historical components particularly important to the Jewish people. Moreover, the menorah is the central religious symbol and ritual object of that religious holiday. Under Justice Blackmun’s view, however, the menorah “has been relegated to the role of a neutral harbinger of the holiday season,” Lynch,
In characterizing the message conveyed by this display as either a “double endorsement” or a secular acknowledgment of the winter holiday season, the opinion states that “[i]t is distinctly implausible to view the combined display of the tree, the sign, and the menorah as endorsing Jewish faith alone.” Ante, at 616, n. 64. That statement, however, seems to suggest that it would be implausible for the city to endorse a faith adhered to by a minority of the citizenry. Regardless of the plausibility of a putative governmental purpose, the more important inquiry here is whether the governmental display of a minority faith’s religious symbol could ever reasonably be understood to convey a message of endorsement of that faith. A menorah standing alone at city hall may well send such a message to nonadherents, just as in this case the creche standing alone at the Allegheny County Courthouse sends a message of governmental endorsement of Christianity, whatever the county’s purpose in authorizing the display may have been. Thus, the question here is whether Pittsburgh’s holiday display conveys a message of endorsement of Judaism, when the menorah is the only religious symbol in the combined display and when the opinion acknowledges that the tree cannot reasonably be understood to convey an endorsement of Christianity. One need not characterize Chanukah as a “secular” holiday or strain to argue that the menorah has a “secular” dimension, ante, at 587, n. 34, in order to conclude that the city of Pittsburgh’s combined display does not convey a message of endorsement of Judaism or of religion in general.
The message of pluralism conveyed by the city’s combined holiday display is not a message that endorses religion over nonreligion. Just as government may not favor particular religious beliefs over others, “government may not favor religious belief over disbelief.” Texas Monthly, Inc. v. Bullock,
My conclusion does not depend on whether or not the city had “a more secular alternative symbol” of Chanukah, ante, at 618, just as the Court’s decision in Lynch clearly did not turn on whether the city of Pawtucket could have conveyed its tribute to the Christmas holiday season by using a “less religious” alternative to the creche symbol in its display of traditional holiday symbols. See Lynch, supra, at 681, n. 7 (“Justice Brennan argues that the city’s objectives could have been achieved without including the creche in the display, [465 U. S.,] at 699. True or not, that is irrelevant. The question is whether the display of the creche violates the Establishment Clause”). In my view, Justice Blackmun’s new rule, ante, at 618, that an inference of endorsement arises every time government uses a symbol with religious meaning if a “more secular alternative” is available is too blunt an instrument for Establishment Clause analysis, which depends on sensitivity to the context and circumstances presented by each case. Indeed, the opinion appears to recognize the importance of this contextual sensitivity by creating an exception to its new rule in the very case announcing it: the opinion acknowledges that “a purely secular symbol” of Chanukah is available, namely, a dreidel or four-sided top, but rejects the use of such a symbol because it “might be interpreted by some as mocking the celebration of Chanukah.” Ibid. This recognition that the more religious
In sum, I conclude that the city of Pittsburgh’s combined holiday display had neither the purpose nor the effect of endorsing religion, but that Allegheny County’s creche display had such an effect. Accordingly, I join Parts I, II, III-A, IV, V, and VII of the Court’s opinion and concur in the judgment.
Concurrence Opinion
with whom Justice Marshall and Justice Stevens join, concurring in part and dissenting in part.
I have previously explained at some length my views on the relationship between the Establishment Clause and government-sponsored celebrations of the Christmas holiday. See Lynch v. Donnelly,
According to the Court, the creche display sends a message endorsing Christianity because the creche itself bears a
Thus, the decision as to the menorah rests on three premises: the Christmas tree is a secular symbol; Chanukah is a holiday with secular dimensions, symbolized by the menorah; and the government may promote pluralism by sponsoring or condoning displays having strong religious associations on its property. None of these is sound.
f-H
The first step toward Justice Blackmun’s conclusion is the claim that, despite its religious origins, the Christmas tree is a secular symbol. He explains:
“The Christmas tree, unlike the menorah, is not itself a religious symbol. Although Christmas trees once carried religious connotations, today they typify the secular celebration of Christmas. Numerous Americans place Christmas trees in their homes without subscribing to Christian religious beliefs, and when the city’s tree stands alone in front of the City-County Building, it is not considered an endorsement of Christian faith. Indeed, a 40-foot Christmas tree was one of the objects that validated the creche in Lynch. The widely accepted view of the Christmas tree as the preeminent secular symbol of the Christmas holiday season serves to emphasize the secular component of the message communicated by other elements of an accompanying holiday display, including the Chanukah menorah.” Ante, at 616-617 (citations and footnotes omitted).
Justice O’Connor accepts this view of the Christmas tree because, “whatever its origins, [it] is not regarded today as a religious symbol. Although Christmas is a public holiday that has both religious and secular aspects, the Christmas tree is widely viewed as a secular symbol of the holiday, in contrast to the creche which depicts the holiday’s religious dimensions.” Ante, at 633.
Thus, while acknowledging the religious origins of the Christmas tree, Justices Blackmun and O’Connor dismiss their significance. In my view, this attempt to take the “Christmas” out of the Christmas tree is unconvincing. That the tree may, without controversy, be deemed a secular symbol if found alone does not mean that it will be so seen when combined with other symbols or objects. Indeed, Justice Blackmun admits that “the tree is capable of taking on a religious significance if it is decorated with religious symbols.” Ante, at 617, n. 65.
The notion that the Christmas tree is necessarily secular is, indeed, so shaky that, despite superficial acceptance of the idea, Justice O’Connor does not really take it seriously. While conceding that the “menorah standing alone at city hall may well send” a message of endorsement of the Jewish faith, she nevertheless concludes: “By accompanying its display of a Christmas tree — a secular symbol of the Christmas holiday season — with a salute to liberty, and by adding a religious symbol from a Jewish holiday also celebrated at roughly the same time of year, I conclude that the city did not endorse Judaism or religion in general, but rather conveyed a mes
In asserting that the Christmas tree, regardless of its surroundings, is a purely secular symbol, Justices Blackmun and O’Connor ignore the precept they otherwise so enthusiastically embrace: that context is all important in determining the message conveyed by particular objects. See ante, at 597 (Blackmun, J.) (relevant question is “whether the
Positioned as it was, the Christmas tree’s religious significance was bound to come to the fore. Situated next to the menorah — which, Justice Blackmun acknowledges, is “a symbol with religious meaning,” ante, at 618, and indeed, is “the central religious symbol and ritual object of” Chanukah, ante, at 633 (O’Connor, J.) — the Christmas tree’s religious dimension could not be overlooked by observers of the display. Even though the tree alone may be deemed predominantly secular, it can hardly be so characterized when placed next to such a forthrightly religious symbol. Consider a poster featuring a star of David, a statue of Buddha, a Christmas tree, a mosque, and a drawing of Krishna. There can be no doubt that, when found in such company, the tree serves as an unabashedly religious symbol.
Justice Blackmun believes that it is the tree that changes the message of the menorah, rather than the menorah that alters our view of the tree. After the abrupt dismissal of the suggestion that the flora surrounding the creche might have diluted the religious character of the display at the county courthouse, ante, at 599, his quick conclusion that
As a factual matter, it seems to me that the sight of an 18-foot menorah would be far more eye catching than that of a rather conventionally sized Christmas tree. It also seems to me likely that the symbol with the more singular message will predominate over one lacking such a clear meaning. Given the homogenized message that Justice Blackmun associates with the Christmas tree, I would expect that the menorah, with its concededly religious character, would tend to dominate the tree. And, though Justice Blackmun shunts the point to a footnote at the end of his opinion, ante, at 621, n. 70, it is highly relevant that the menorah was lit during a religious ceremony complete with traditional religious blessings. I do not comprehend how the failure to challenge separately this portion of the city’s festivities precludes us from considering it in assessing the message sent by the display as a whole. But see ibid. With such an openly religious introduction, it is most likely that the religious aspects of the menorah would be front and center in this display.
I would not, however, presume to say that my interpretation of the tree’s significance is the “correct” one, or the one shared by most visitors to the City-County Building. I do not know how we can decide whether it was the tree that stripped the religious connotations from the menorah, or the menorah that laid bare the religious origins of the tree. Both are reasonable interpretations of the scene the city presented, and thus both, I think, should satisfy Justice Black-MUn’s requirement that the display “be judged according to the standard of a ‘reasonable observer.’” Ante, at 620. I
The second premise on which today’s decision rests is the notion that Chanukah is a partly secular holiday, for which the menorah can serve as a secular symbol. It is no surprise and no anomaly that Chanukah has historical and societal roots that range beyond the purely religious. I would venture that most, if not all, major religious holidays have beginnings and enjoy histories studded with figures, events, and practices that are not strictly religious. It does not seem to me that the mere fact that Chanukah shares this kind of background makes it a secular holiday in any meaningful sense. The menorah is indisputably a religious symbol, used ritually in a celebration that has deep religious significance. That, in my view, is all that need be said. Whatever secular practices the holiday of Chanukah has taken on in its contemporary observance are beside the point.
Indeed, at the very outset of his discussion of the menorah display, Justice Blackmun recognizes that the menorah is a religious symbol. Ante, at 613. That should have been the end of the cáse. But, as did the Court in Lynch, JUSTICE Blackmun, “by focusing on the holiday ‘context’ in which the [menorah] appeared, seeks to explain away the clear religious import of the [menorah] . . . .”
I cannot, in short, accept the effort to transform an emblem of religious faith into the innocuous “symbol for a holiday that . . . has both religious and secular dimensions.” Ante, at 614 (Blackmun, J.).
HH I7H
Justice Blackmun, m his acceptance of the city s message of “diversity,” ante, at 619, and, even more so, Justice O’Connor, in her approval of the “message of pluralism and freedom to choose one’s own beliefs,” ante, at 634, appear to believe that, where seasonal displays are concerned, more is better. Whereas a display might be constitutionally problematic if it showcased the holiday of just one religion, those problems vaporize as soon as more than one religion is included. I know of no principle under the Establishment Clause, however, that permits us to conclude that governmental promotion of religion is acceptable so long as one religion is not favored. We have, on the contrary, interpreted that Clause to require neutrality, not just among religions, but between religion and nonreligion. See, e. g., Everson v. Board of Education of Ewing,
Nor do I discern the theory under which the government is permitted to appropriate particular holidays and religious objects to its own use in celebrating “pluralism.” The message of the sign announcing a “Salute to Liberty” is not religious, but patriotic; the government’s use of religion to promote its
The uncritical acceptance of a message of religious pluralism also ignores the extent to which even that message may offend. Many religious faiths are hostile to each other, and indeed, refuse even to participate in ecumenical services designed to demonstrate the very pluralism Justices Black-mun and O’Connor extol. To lump the ritual objects and holidays of religions together without regard to their attitudes toward such inclusiveness, or to decide which religions should be excluded because of the possibility of offense, is not a benign or beneficent celebration of pluralism: it is instead an interference in religious matters precluded by the Establishment Clause.
The government-sponsored display of the menorah alongside a Christmas tree also works a distortion of the Jewish religious calendar. As Justice Blackmun acknowledges, “the proximity of Christmas [may] accoun[t] for the social prominence of Chanukah in this country.” Ante, at 586. It is the proximity of Christmas that undoubtedly accounts for the city’s decision to participate in the celebration of Chanukah, rather than the far'more significant Jewish holidays of Rosh Hashanah and Yom Kippur. Contrary to the impression the city and Justices Blackmun and O’Connor seem to create, with their emphasis on “the winter-holiday season,” December is not the holiday season for Judaism. Thus, the city’s erection alongside the Christmas tree of the symbol of a relatively minor Jewish religious holiday, far from conveying “the city’s secular recognition of different traditions for celebrating the winter-holiday season,” ante, at 620 (Blackmun, J.), or “a message of pluralism and freedom of belief,” ante, at 635 (O’Connor, J.), has the effect of promoting a Christianized version of Judaism. The holiday calendar they appear willing to accept revolves exclusively around a Christian holiday. And those religions that have
lf it is not religious pluralism that the display signifies, then I do not know what kind of “pluralism” Justice O’Connor has in mind. Perhaps she means the cultural pluralism that results from recognition of many different holidays, religious and nonreligious. In that case, however, the display of a menorah next to a giant firecracker, symbolic of the Fourth of July, would seem to be equally representative of this pluralism, yet I do not sense that this display would pass muster under Justice O’Connor’s view. If, instead, Justice O’Connor means to approve the pluralistic message associated with a symbolic display that may stand for either the secular or religious aspects of a given holiday, then this view would logically entail the conclusion that the display of a Latin cross next to an Easter bunny in the springtime would be valid under the Establishment Clause; again, however, I sense that such a conclusion would not comport with Justice O’Connor’s views. The final possibility, and the one that seems most consonant with the views outlined in her opinion, see ante, at 635, is that the pluralism that Justice O’Connor perceives in Pittsburgh’s display arises from the recognition that there are many different ways to celebrate “the winter holiday season,” ante, at 636. But winter is “the holiday season” to Christians, not to Jews, and the implicit message that it, rather than autumn, is the time for pluralism sends an impermissible signal that only holidays stemming from Christianity, not those arising from other religions, favorably dispose the government towards “pluralism.” See infra, at 645.
Concurrence Opinion
with whom Justice Brennan and Justice Marshall join, concurring in part and dissenting in part.
Governmental recognition of not one but two religions distinguishes these cases from our prior Establishment Clause cases. It is, therefore, appropriate to reexamine the text and context of the Clause to determine its impact on this novel situation.
Relations between church and state at the end of the 1780’s fell into two quite different categories. In several European countries, one national religion, such as the Church of England in Great Britain, was established. The established church typically was supported by tax revenues, by laws conferring privileges only upon members, and sometimes by violent persecution of nonadherents. In contrast, although several American Colonies had assessed taxes to support one chosen faith, none of the newly United States subsidized a single religion. Some States had repealed establishment laws altogether, while others had replaced single establishments with laws providing for nondiscriminatory support of more than one religion.
“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.” 1 Annals of Cong. 434 (1789) (emphasis added).
Congressional debate produced several reformulations of the italicized language.
By its terms the initial draft of the Establishment Clause would have prohibited only the national established church that prevailed in England; multiple establishments, such as existed in six States, would have been permitted. But even
Similarly expanded was the relationship between government and religion that was to be disallowed. Whereas earlier drafts had barred only laws “establishing” or “touching” religion, the final text interdicts all laws “respecting an establishment of religion.” This phrase forbids even a partial establishment, Lemon v. Kurtzman,
Treatment of a symbol of a particular tradition demonstrates one’s attitude toward that tradition. Cf. Texas v. Johnson,
In my opinion the Establishment Clause should be construed to create a strong presumption against the display of religious symbols on public property.
Thus I find wholly unpersuasive Justice Kennedy’s attempts, post, at 664-667, to belittle the importance of the obvious differences between the display of the creche in this case and that in Lynch v. Donnelly,
I cannot agree with the Court’s conclusion that the display at Pittsburgh’s City-County Building was constitutional. Standing alone in front of a governmental headquarters, a lighted, 45-foot evergreen tree might convey holiday greetings linked too tenuously to Christianity to have constitutional moment. Juxtaposition of this tree with an 18-foot menorah does not make the latter secular, as Justice Blackmun contends, ante, at 616. Rather, the presence of the Chanukah menorah, unquestionably a religious symbol,
The history of religious establishments is discussed in, e. g., J. Swom-ley, Religious Liberty and the Secular State 24-41 (1987) (Swomley). See generally L. Levy, The Establishment Clause (1986) (Levy). One historian describes the situation at the time of the passage of the First Amendment as follows:
“In America there was no establishment of a single church, as in England. Four states had never adopted any establishment practices. Three had abolished their establishments during the Revolution. The remaining six states — Massachusetts, New Hampshire, Connecticut, Maryland, South Carolina, and Georgia — changed to comprehensive or ‘multiple’ establishments. That is, aid was provided to all churches in each state on a non-preferential basis, except that the establishment was limited to churches of
For a comprehensive narration of this process, see Levy 75-89. See also, e. g., Wallace v. Jaffree,
“Other members of the established church also disapproved taxation for religious purposes. One of these, James Sullivan, who was later elected Governor of Massachusetts, wrote about such taxation: ‘This glaring piece of religious tyranny was founded upon one or the other of these suppositions: that the church members were more religious, had more understanding, or had a higher privilege than, or a preeminence over those who were not in full communion, or in other words, that their growth in grace or religious requirements, gave them the right of taking and disposing of the property of other people against their consent.’
“The struggle for religious liberty in Massachusetts was the struggle against taxation for religious purposes. In that struggle there was civil disobedience; there were appeals to the Court and to the Crown in faraway England. Societies were organized to fight the tax. Even after some denominations had won the right to be taxed only for their own churches or meetings, they continued to resist the tax, even on the nonpreferential basis by which all organized religious groups received tax funds. Finally, the state senate, which had refused to end establishment, voted in 1831 to submit the issue to the people. The vote, which took place in 1833, was 32,234 for disestablishment to 3,273 for keeping the multiple establishments of religion. It was a 10 to 1 vote, and in 1834 the amendment was made effective by legislation.” Swomley 28.
Cf. Engel v. Vitale,
This proscription applies to the States by virtue of the Fourteenth Amendment. Jaffree,
“Respect,” as defined in T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796). See S. Johnson, A Dictionary of the English Language (7th ed. 1785); see also The Oxford English Dictionary 733-734 (1989); Webster’s Ninth New Collegiate Dictionary 1004 (1988).
The criticism that Justice Kennedy levels at Justice O’Connor’s endorsement standard for evaluating symbolic speech, see post, at 668-678, is not only “uncharitable,” post, at 675, but also largely unfounded. Inter alia, he neglects to mention that 1 of the 2 articles he cites as disfavoring the endorsement test, post, at 669, itself cites no fewer than 16 articles and 1 book lauding the test. See Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the “No Endorsement” Test, 86 Mich. L. Rev. 266, 274, n. 45 (1987). Justice Kennedy’s preferred “coercion” test, moreover, is, as he himself admits, post, at 660, out of step with our precedent. The Court has stated:
“The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.” Engel,
Even if the law were not so, it seems unlikely that “coercion” identifies the line between permissible and impermissible religious displays any more brightly than does “endorsement.”
In a similar vein, we have interpreted the Amendment’s strictly worded Free Speech and Free Press Clauses to raise a strong presumption against, rather than to ban outright, state abridgment of communications. See, e. g., Roaden v. Kentucky,
The point is reiterated here by amicus the Governing Board of the National Council of Churches of Christ in the U. S. A., which argues that “government acceptance of a créehe on public property . . . secularizes and degrades a sacred symbol of Christianity,” Brief for American Jewish Committee et al. as Amici Curiae ii. See also Engel,
See Brief for American Jewish Committee et al. as Amici Curiae i-ii; Brief for American Jewish Congress et al. as Amici Curiae 1-2; Tr. of Oral Arg. 44.
These cases illustrate the danger that governmental displays of religious symbols may give rise to unintended divisiveness, for the net result of the Court’s disposition is to disallow the display of the créehe but to allow the display of the menorah. Laypersons unfamiliar with the intricacies of Establishment Clause jurisprudence may reach the wholly unjustified conclusion that the Court itself is preferring one faith over another. See Goldman v. Weinberger,
The suggestion that the only alternative to governmental support of religion is governmental hostility to it represents a giant step backward in our Religion Clause jurisprudence. Indeed in its first contemporary examination of the Establishment Clause, the Court, while differing on how to apply the principle, unanimously agreed that government could not require believers or nonbelievers to support religions. Everson v. Board of Education of Ewing,
Cf. New York v. Ferber,
All these leaders, of course, appear in friezes on the walls of our courtroom. See The Supreme Court of the United States 31 (published with the cooperation of the Historical Society of the Supreme Court of the United States).
The Court long ago rejected a contention similar to that Justice Kennedy advances today:
“It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong. The history of man is inseparable from the history of religion. . . . [Early Americans] knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew rather that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men’s tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.” Engel,
After the judge and counsel for both sides agreed at a preliminary injunction hearing that the menorah was a religious symbol, App. 144-145, a rabbi testified as an expert witness that the menorah and the creche “are comparable symbols, that they both represent what we perceive to be miracles,” id,., at 146, and that he had never “heard of Hanukkah being declared a general secular holiday in the United States,” id., at 148. Although a witness for intervenor Chabad testified at a later hearing that “[w]hen used on Hanukkah in the home it is definitely symbolizing a religious ritual. . . whereas, at other times the menorah can symbolize anything that one wants it to symbolize,” id., at 240, he also agreed that lighting the menorah in a public place “probably would” publicize the miracle it represents, id., at 263.
Nonetheless, Justice Blackmun attaches overriding secular meaning to the menorah. Ante, at 613-616. Contra, ante, at 632-634 (O’Connor, J., concurring in part and concurring in judgment); ante, at 638, 641-643 (Brennan, J., concurring in part and dissenting in part); post, at 664 (Kennedy, J., concurring in judgment in part and dissenting in part). He reaches this conclusion only after exhaustive reference, not only to facts of record but primarily to academic treatises, to assess the degrees to which the menorah, the tree, and the creche are religious or secular. Ante, at 579-587, 616.
Concurrence Opinion
with whom The Chief Justice, Justice White, and Justice Scalia join, concurring in the judgment in part and dissenting in part.
The majority holds that the County of Allegheny violated the Establishment Clause by displaying a creche in the county courthouse, because the “principal or primary effect” of the display is to advance religion within the meaning of Lemon v. Kurtzman,
I
In keeping with the usual fashion of recent years, the majority applies the Lemon test to judge the constitutionality of the holiday displays here in question. I am content for present purposes to remain within the Lemon framework, but do not wish to be seen as advocating, let alone adopting, that test as our primary guide in this difficult area. Persuasive criticism of Lemon has emerged. See Edwards v. Aguillard,
The only Lemon factor implicated in these cases directs us to inquire whether the “principal or primary effect” of the challenged government practice is “one that neither advances nor inhibits religion.”
These statements must not give the impression of a formalism that does not exist. Taken to its logical extreme, some of the language quoted above would require a relentless extirpation of all contact between government and religion. But that is not the history or the purpose of the Establishment Clause. Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage. As Chief Justice Burger wrote for the Court in Walz v. Tax Comm’n of New York City,
Rather than requiring government to avoid any action that acknowledges or aids religion, the Establishment Clause permits government some latitude in recognizing and accommodating the central role religion plays in our society. Lynch v. Donnelly, supra, at 678; Walz v. Tax Comm’n of New York City, supra, at 669. Any approach less sensitive to our heritage would border on latent hostility toward religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion and so to the detriment of the religious. A categorical approach would install federal courts as jealous guardians of an absolute “wall of separation,” sending a clear message of disapproval. In this century, as the modern administrative state expands to touch the lives of its citizens in such diverse ways and redi
Our cases reflect this understanding. In Zorach v. Clauson,
“When the state encourages religious instruction . . . it follows the best of our traditions. For it then respects the religious 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. That would be preferring those who believe in no religion over those who do believe.” Id., at 313-314.
Nothing in the First Amendment compelled New York City to establish the release-time policy in Zorach, but the fact that the policy served to aid religion, and in particular those sects that offer religious education to the young, did not invalidate the accommodation. Likewise, we have upheld government programs supplying textbooks to students in parochial schools, Board of Education of Central School Dist. No. 1 v. Allen,
“It is said, and I agree, that the attitude of government toward religion must be one of neutrality. But 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. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it.
Neither government nor this Court can or should ignore the significance of the fact that a vast portion of our people believe in and worship God and that many of our legal, political and personal values derive historically from religious teachings. Government must inevitably take cognizance of the existence of religion . . . .” Id., at 306 (concurring opinion, joined by Harlan, J.).
The ability of the organized community to recognize and accommodate religion in a society with a pervasive public sector requires diligent observance of the border between accommodation and establishment. Our cases disclose two limiting principles: government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact “establishes a [state] religion or religious faith, or tends to do so.” Lynch v. Donnelly,
It is no surprise that without exception we have invalidated actions that further the interests of religion through the coercive power of government. Forbidden involvements include compelling or coercing participation or attendance at a religious activity, see Engel v. Vitale,
As Justice Blackmun observes, ante, at 597-598, n. 47, some of our recent cases reject the view that coercion is the sole touchstone of an Establishment Clause violation. See Engel v. Vitale, supra, at 430 (dictum) (rejecting, without citation of authority, proposition that coercion is required to demonstrate an Establishment Clause violation); Abington School District v. Schempp, supra, at 223; Nyquist,
“The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to existwithout sponsorship and without interference.” 397 U. S., at 669 .
This is most evident where the government’s act of recognition or accommodation is passive and symbolic, for in that instance any intangible benefit to religion is unlikely to present a realistic risk of establishment. Absent coercion, the risk of infringement of religious liberty by passive or symbolic accommodation is minimal. Our cases reflect this reality by requiring a showing that the symbolic recognition or accommodation advances religion to such a degree that it actually “establishes a religion or religious faith, or tends to do so.” Lynch,
In determining whether there exists an establishment, or a tendency toward one, we refer to the other types of church-state contacts that have existed unchallenged throughout our history, or that have been found permissible in our case law. In Lynch, for example, we upheld the city of Pawtucket’s holiday display of a creche, despite the fact that “the display advance[d] religion in a sense.” Id., at 683. We held that the creche conferred no greater benefit on religion than did governmental support for religious education, legislative chaplains, “recognition of the origins of the [Christmas] Holiday itself as ‘Christ’s Mass,’” or many other forms of symbolic or tangible governmental assistance to religious faiths that are ensconced in the safety of national tradition. Id., at 681, 683. And in Marsh v. Chambers, we found that Nebraska’s practice of employing a legislative chaplain did not violate the Establishment Clause, because “legislative prayer presents no more potential for establishment than the provision of school transportation, beneficial grants for higher education, or tax exemptions for religious organizations.”
rH h-H
These principles are not difficult to apply to the facts of the cases before us. In permitting the displays on government property of the menorah and the creche, the city and county sought to do no more than “celebrate the season,” Brief for Petitioner County of Allegheny in No. 87-2050, p. 27, and to acknowledge, along with many of their citizens, the historical background and the religious, as well as secular, nature of the Chanukah and Christmas holidays. This interest falls well within the tradition of government accommodation and acknowledgment of religion that has marked our history from the beginning.
If government is to participate in its citizens’ celebration of a holiday that contains both a secular and a religious component, enforced recognition of only the secular aspect would
There is no suggestion here that the government’s power to coerce has been used to further the interests of Christianity or Judaism in any way. No one was compelled to observe or participate in any religious ceremony or activity. Neither the city nor the county contributed significant amounts of tax money to serve the cause of one religious faith. The creche and the menorah are purely passive symbols of religious holidays. Passersby who disagree with the message conveyed by these 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.
There is no realistic risk that the creche and the menorah represent an effort to proselytize or are otherwise the first step down the road to an establishment of religion.
Respondents say that the religious displays involved here are distinguishable from the creche in Lynch because they are located on government property and are not surrounded
The fact that the creche and menorah are both located on government property, even at the very seat of government, is likewise inconsequential. In the first place, the Lynch Court did not rely on the fact that the setting for Pawtucket’s display was a privately owned park, and it is difficult to suggest that anyone could have failed to receive a message oí government sponsorship after observing Santa Claus ride the city fire engine to the park to join with the mayor of Paw-tucket in inaugurating the holiday season by turning on the lights of the city-owned display. See Donnelly v. Lynch,
Our cases do not suggest, moreover, that the use of public property necessarily converts otherwise permissible government conduct into an Establishment Clause violation. To the contrary, in some circumstances the First Amendment may require that government property be available for use by religious groups, see Widmar v. Vincent,
Nor can I comprehend why it should be that placement of a government-owned creche on private land is lawful while placement of a privately owned creche on public land is not.
If Lynch is still good law — and until today it was — the judgment below cannot stand. I accept and indeed approve both the holding and the reasoning of Chief Justice Burger’s opinion in Lynch, and so I must dissent from the judgment that the creche display is unconstitutional. On the same reasoning, I agree that the menorah display is constitutional.
The majority invalidates display of the creche, not because it disagrees with the interpretation of Lynch applied above, but because it chooses to discard the reasoning of the Lynch majority opinion in favor of Justice O’Connor’s concurring opinion in that case. See ante, at 594-597. It has never been my understanding that a concurring opinion “suggest[ing] a clarification of our . . . doctrine,” Lynch,
Even if Lynch did not control, I would not commit this Court to the test applied by the majority today. The notion that cases arising under the Establishment Clause should be decided by an inquiry into whether a “ ‘reasonable observer’ ” may “‘fairly understand’” government action to “‘sen[d] a message to nonadherents that they are outsiders, not full members of the political community,”’ is a recent, and in my view most unwelcome, addition to our tangled Establishment Clause jurisprudence. Ante, at 595, 620. Although a scattering of our cases have used “endorsement” as another word for “preference” or “imprimatur, ” the endorsement test applied by the majority had its genesis in Justice O’Connor’s concurring opinion in Lynch. See also Corporation of the Presiding Bishop of Church of Jesus Christ of Latterday Saints v. Amos,
A
I take it as settled law that, whatever standard the Court applies to Establishment Clause claims, it must at least suggest results consistent with our precedents and the historical practices that, by tradition, have informed our First Amendment jurisprudence. See supra, at 655-663; Lynch, supra, at 673-674; Marsh v. Chambers,
Our decision in Marsh v. Chambers illustrates this proposition. The dissent in that case sought to characterize the decision as “carving out an exception to the Establishment
If the endorsement test, applied without artificial exceptions for historical practice, reached results consistent with history, my objections to it would have less force. But, as I understand that test, the touchstone of an Establishment Clause violation is whether nonadherents would be made to feel like “outsiders” by government recognition or accommodation of religion. Few of our traditional practices recognizing the part religion plays in our society can withstand scrutiny under a faithful application of this formula.
The United States Code itself contains religious references that would be suspect under the endorsement test. Congress has directed the President to “set aside and proclaim a suitable day each year ... as a National Day of Prayer, on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.” 36 U. S. C. § 169h. This statute does not require anyone to pray, of course, but it is a straightforward endorsement of the concept of “turn[ing] to God in prayer.” Also by statute, the Pledge of Allegiance to the Flag describes the United States as “one Nation under God.” 36 U. S. C. § 172.
If the intent of the Establishment Clause is to protect individuals from mere feelings of exclusion, then legislative prayer cannot escape invalidation. It has been argued that “[these] government acknowledgments of religion serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.” Lynch-, supra, at 693 (O’Connor, J., concurring). I fail to see why prayer is the only way to convey these messages; appeals to patriotism, moments of silence, and any number of other approaches would be as effective, were the only purposes at issue the ones described by the Lynch concurrence. Nor is it clear to me why “encouraging the recognition of what is worthy of appreciation in society” can be characterized as a purely secular purpose, if it can be achieved only through religious prayer. No doubt prayer is “worthy of appreciation,” but that is most assuredly not because it is secular. Even accepting the secular-solemnization explanation at face value, moreover, it seems incredible to suggest that the average observer of legislative prayer who either believes in no religion or whose faith rejects the concept of God would not receive the clear message that his faith is out of step with the
B
In addition to disregarding precedent and historical fact, the majority’s approach to government use of religious symbolism threatens to trivialize constitutional adjudication. By mischaracterizing the Court’s opinion in Lynch as an endorsement-in-context test, ante, at 597, Justice Black-mun embraces a jurisprudence of minutiae. A reviewing court must consider whether the city has included Santas, talking wishing wells, reindeer, or other secular symbols as “a center of attention separate from the creche.” Ante, at 598. After determining whether these centers of attention are sufficiently “separate” that each “had their specific visual story to tell,” the court must then measure their proximity to the créche. Ante, at 598, and n. 48. A community that wishes to construct a constitutional display must also
Another important factor will be the prominence of the setting in which the display is placed. In this case, the Grand Staircase of the county courthouse proved too resplendent. Indeed, the Court finds that this location itself conveyed an “unmistakable message that [the county] supports and promotes the Christian praise to God that is the creche’s religious message.” Ante, at 600.
My description of the majority’s test, though perhaps uncharitable, is intended to illustrate the inevitable difficulties with its application.
Justice Blackmun employs in many respects a similar analysis with respect to the menorah, principally discussing its proximity to the Christmas tree and whether “it is . . . more sensible to interpret the menorah in light of the tree, rather than vice versa.” Ante, at 617; see also ante, at 635 (O’Connor, J., concurring in part and concurring in judgment) (concluding that combination of tree, menorah, and salute to liberty conveys no message of endorsement to reasonable observers). Justice Blackmun goes further, however, and in upholding the menorah as an acknowledgment of a holiday with secular aspects emphasizes the city’s lack of “reasonable alternatives that are less religious in nature.” Ante, at 618; see ibid, (noting absence of a “more secular alternative symbol”). This least-religious-means test presents several difficulties.
The result the Court reaches in these cases is perhaps the clearest illustration of the unwisdom of the endorsement test. Although Justice O’Connor disavows Justice Black-mun’s suggestion that the minority or majority status of a religion is relevant to the question whether government recognition constitutes a forbidden endorsement, ante, at 634 (O’Connor, J., concurring in part and concurring in judgment), the very nature of the endorsement test, with its emphasis on the feelings of the objective observer, easily lends itself to this type of inquiry. If there be such a person as the “reasonable observer,” I am quite certain that he or she will take away a salient message from our holding in these cases: the Supreme Court of the United States has concluded that the First Amendment creates classes of religions based on the relative numbers of their adherents. Those religions enjoying the largest following must be consigned to the status of least favored faiths so as to avoid any possible risk of offending members of minority religions. I would be the first to admit that many questions arising under the Establishment Clause do not admit of easy answers, but whatever the Clause requires, it is not the result reached by the Court today.
IV
The approach adopted by the majority contradicts important values embodied in the Clause. Obsessive, implacable resistance to all but the most carefully scripted and secu
A further contradiction arises from the majority’s approach, for thd Court also assumes the difficult and inappropriate task of saying what every religious symbol means. Before studying these cases, I had not known the full history of the menorah, and I suspect the same was true of my colleagues. More important, this history was, and is, likely unknown to the vast majority of people of all faiths who saw the symbol displayed in Pittsburgh. Even if the majority is quite right about the history of the menorah, it hardly follows that this same history informed the observers’ view of the symbol and the reason for its presence. This Court is ill equipped to sit as a national theology board, and I question both the wisdom and the constitutionality of its doing so. Indeed, were I required to choose between the approach taken by the majority and a strict separationist view, I would have to respect the consistency of the latter.
The suit before us is admittedly a troubling one. It must be conceded that, however neutral the purpose of the city and county, the eager proselytizer may seek to use these symbols for his own ends. The urge to use them to teach or to taunt is always present. It is also true that some devout adherents of Judaism or Christianity may be as offended by the holiday display as are nonbelievers, if not more so. To place these religious symbols in a common hallway or sidewalk, where they may be ignored or even insulted, must be distasteful to many who cherish their meaning.
Justice Stevens is incorrect when he asserts that requiring a showing of direct or indirect coercion in Establishment Clause cases is “out of step with our precedent.” Ante, at 650, n. 6. As is demonstrated by the language Justice Stevens quotes from Engel v. Vitale,
The majority rejects the suggestion that the display of the creche can “be justified as an ‘accommodation’ of religion,” because it “does not remove any burden on the free exercise of Christianity.” Ante, at 601, n. 51. Contrary to the assumption implicit in this analysis, however, we have never held that government’s power to accommodate and recognize religion extends no further than the requirements of the Free Exercise Clause. To the contrary, “[t]he limits of permissible state accommodation to religion are by no means coextensive with the non-interference mandated by the Free Exercise Clause.” Walz v. Tax Comm’n of New York City,
One can imagine a case in which the use of passive symbols to acknowledge religious holidays could present this danger. For example, if a city chose to recognize, through religious displays, every significant Christian holiday while ignoring the holidays of all other faiths, the argument that the city was simply recognizing certain holidays celebrated by its citizens without establishing an official faith or applying pressure to obtain adher
The majority suggests that our approval of legislative prayer in Marsh v. Chambers is to be distinguished from these cases on the ground that legislative prayer is nonseetarian, while creches and menorahs are not. Ante, at 603. In the first place, of course, this purported distinction is utterly inconsistent with the majority’s belief that the Establishment Clause “mean[s] no official preference even for religion over nonreligion.” Ante, at 605. If year-round legislative prayer does not express “official preference for religion over nonreligion,” a créche or menorah display in the context of the holiday season certainly does not “demonstrate a preference for one particular sect or creed.” Ibid. Moreover, the majority chooses to ignore the Court’s opinion in Lynch v. Donnelly,
The creche in Lynch was owned by Pawtucket. Neither the creche nor the menorah at issue in this case is owned by a governmental entity.
The majority illustrates the depth of its error in this regard by going so far as to refer to the concmrence and dissent in Lynch as “[o]ur previous opinions. ...” Ante, at 602.
Contrary to the majority’s discussion, ante, at 604-605, and nn. 53-54, the relevant historical practices are those conducted by governmental units which were subject to the constraints of the Establishment Clause. Acts of “official discrimination against non-Christians” perpetrated in the 18th and 19th centuries by States and municipalities are of course irrelevant to this inquiry, but the practices of past Congresses and Presidents are highly informative.
In keeping with his strict views of the degree of separation mandated by the Establishment Clause, Thomas Jefferson declined to follow this tradition. See 11 Writings of Thomas Jefferson 429 (A. Lipscomb ed. 1904).
Similarly, our Presidential inaugurations have traditionally opened with a request for divine blessing. At our most recent such occasion, on January 20,1989, thousands bowed their heads in prayer to this invocation:
“Our Father and our God, Thou hast said blessed is the nation whose God is the Lord.
“We recognize on this historic occasion that we are a nation under God. This faith in God is our foundation and our heritage. . . .
“We acknowledge Thy divine help in the selection of our leadership each 4 years.
“All this we pray in the name of the Father, the Son, and the Holy Spirit. Amen.” 136 Cong. Rec. 303 (1989) (Rev. Billy Graham).
If the majority’s test were to be applied logically, it would lead to the elimination of all nonsecular Christmas caroling in public buildings or, presumably, anywhere on public property. It is difficult to argue that lyrics like “Good Christian men, rejoice,” “Joy to the world! the Savior reigns,” “This, this is Christ the King,” “Christ, by highest heav’n adored,” and “Come and behold Him, Born the King of angels” have acquired such a secular nature that nonadherents would not feel “left out” by a government-sponsored or approved program that included these carols. See W. Ehret & G. Evans, The International Book of Christmas Carols 12, 28, 30, 46, 318 (1963). We do not think for a moment that the Court will ban such carol programs, however. Like Thanksgiving Proclamations, the reference to God in the Pledge of Allegiance, and invocations to God in sessions of Congress and of this Court, they constitute practices that the Court will not proscribe, but that the Court’s reasoning today does not explain.
Justice Blackmun and Justice O’ConnoR defend the majority’s test by suggesting that the approach followed in Lynch would require equally difficult line drawing. Ante, at 606; ante, at 629-630 (O’ConnoR, J., concurring in part and concurring in judgment). It is true that the Lynch test may involve courts in difficult line-drawing in the unusual case where a municipality insists on such extreme use of religious speech that an establishment of religion is threatened. See supra, at 661. Only adoption of the absolutist views that either all government involvement with religion is permissible, or that none is, can provide a bright line in all cases. That price for clarity is neither exacted nor permitted by the Constitution. But for the most part, Justice Blackmun’s and Justice O’ConnoR’s objections are not well taken. As a practical matter, the only cases of symbolic recognition likely to arise with much frequency are those involving simple holiday displays, and in that context Lynch provides unambiguous guidance. I would follow it. The majority’s test, on the other hand, demands the Court to draw exquisite distinctions from fine detail in a wide range of cases. The anomalous result the test has produced here speaks for itself.
Of course, a majority of the Court today rejects Justice Blackmun’s approach in this regard. See ante, at 636-637 (O’ConnoR, J., concurring in part and concurring in judgment).