*1 COUNTY OF ALLEGHENY AMERICAN CIVIL et al. UNION,
LIBERTIES GREATER PITTSBURGH
CHAPTER, et al. Argued February 22, No. 87-2050. July 1989 Decided 1989* *Together 88-90, with No. Chabad v. American Liberties Civil Union al., 88-96, et City Pittsburgh and No. v. American Civil Liberties Union, al., Pittsburgh Chapter, Greater et also on certiorari to the same court.
Blackmun, J., judgment announced the of the Court and delivered IV, III-A, V, respect and in which opinion of the Court with to Parts Brennan, Marshall, Stevens, O’Connor, JJ., joined, opinion an and II, O’Connor, JJ., I in and respect with to Parts and which Stevens B, Stevens, J., joined, respect in opinion an with to Part which III— VII, O’Connor, J., respect joined, joined, opinion an with to Part in which O’Connor, J., respect opinion opinion to Part VI. filed and an in Part II. concurring part concurring judgment, in and in the of which Stevens, JJ., Brennan, J., joined, post, p. Brennan 623. filed an and part dissenting part, in in in which Marshall and opinion concurring and Stevens, J., Stevens, JJ., opinion joined, post, p. 637. filed an concur- Marshall, JJ., part, in Brennan and ring part dissenting in which and Kennedy, J., opinion concurring joined, post, p. 646. filed an Rehnquist, J., part, and judgment part dissenting and which C. Scalia, JJ., joined, p. post, White 655. argued petitioners in Nos. 87- the cause for Buscemi
Peter him the briefs were George 2050 and 88-96. With on M. McTiernan, Janocsko, George L. D. R. Pellegrini, Robert *5 Specter. argued R. petitioner Nathan Lewin the cause for in No. 88-90. With him on the briefs was Charles H. Saul.
Roslyn argued respondents. M. Litman the cause for respondents With her on the brief for American Civil Liber Pushinsky, ties Union et al. were Jon Lieber, James B. John Shapiro. Powell, A. Jeffrey and R. Steven Teitel, Ruti P. Sinensky, M. Freeman, Steven Shevitz, Richard E. and Jill respondent L. † Kahn filed a brief for Tunador. judgment announced the of the Court
Justice Blackmun opinion respect and delivered the of the Court with to Parts opinion respect III-A, IV, V, and an with I Parts and II, join, which Justice and Justice an Stevens O’Connor opinion respect with to Part III-B, in which Ste- joins, opinion respect with VII, to Part in which Jus- vens joins, opinion respect and an to Part VI. tice O’Connor litigation constitutionality This concerns the of two recur- ring holiday displays public property located on in downtown Pittsburgh. placed The first is a creche on the Grand Stair- Allegheny County case of the Courthouse. The second is a placedjust City-County Chanukah menorah outside the Build- ing, sign saluting liberty. next to a Christmas tree and a Appeals Court of for the Third Circuit ruled that each violates the Establishment Clause of the First Amendment impermissible because each has the endorsing effect of re- † Briefs of urging amici curiae reversal were filed for the United States by Fried, Solicitor General Deputy Ayer, Solicitor General and Michael K. Warren, Kellogg; city for the Michigan, by Williams; Robert E. for Con Lorence, cerned by Women for America Jordan W. Campbell, Cimron and Bird; Wendell R. for the National Jewish Commission on Law and Public by Rapps Stern; Affairs Dennis and A. David and for the National Legal by Davis, Skolroocl, Douglas Foundation W. Robert K. and William C. Wood, Jr. Briefs of urging amici curiae affirmance were filed for the American Foltin, by Rabinove, Jewish Committee et al. Samuel Richard T. James Greilsheimer, Stein, G. Klinger, Klein, Alan M. David A. Lauren G. Boothby; Lee and for the American Congress Jewish et al. Arlene Fickler, Stern, Waldman, Marc D. Lois C. Amy Adelson.
579 (1988). agree ligion. dis- that the creche F. 2d 655 We 842 play the Court effect but reverse that unconstitutional has display. regarding judgment Appeals’ the menorah County by Allegheny county and is owned
The courthouse county government. of the It houses the offices is its seat of and clerk of controller, treasurer, sheriff, commissioners, App. there. 69. trials are held court. Civil and criminal part public” of the beautiful,” and “most “main,” The “most one arch and sur- Staircase, set into courthouse is its Grand serving back- windows as a others, with arched rounded (JEV) drop. 31. see Joint Exhibit Volume Id., 157-158; Holy county permitted the Name Soci- 1981,the has Since ety, group, in the a creche a Roman Catholic holiday during county season. the Christmas courthouse needlessly, perhaps App. is the Christmas, we note 164. holiday of Naza- celebrate the birth of Jesus when Christians they Western to be the Messiah.1 reth, whom believe Day 25 on December have celebrated Christmas churches century.2 Nation, As observed this the fourth since religious, a dimension.3 secular, as well as Christmas has 1 (1987). “Jesus,” 15, 18 Encyclopedia Religion, See 8 (1987). “Christmas,” east Encyclopedia Religion, 460 Some 3 2 See churches, however, of the adopted have not December 25 as the Feast ern celebrating and January 6 the date for both the birth Nativity, retaining Complete Myers, Book of baptism of R. Celebrations: Jesus. (1972) 15, (Myers). Holidays American holiday in both secular our national culture contains Christmas “[T]he Lynch Donnelly, 465 U. S. and sectarian elements.” (1984) (BRENNAN, J., suggested dissenting). It has been n. 15 theological country exceeds the aspect this now cultural of Christmas Christmas, Barnett, holiday. The American See J. significance (Barnett) (1954) part (“[B]y the latter Study in National Culture 23 taking precedence century, aspects of Christmas were the folk-secular last ones”). over its county courthouse, creches, in the like other The creche representation manger in Bethle of the scene in the visual shortly Jesus, after the birth in the Gos hem as described figures pels and Matthew.4 The creche includes of Luke Mary, Joseph, shepherds, Jesus, animals, infant farm placed representation all or before a wooden of a men, wise bearing manger, angel has at a banner that which its crest an *7 proclaims in Excelsis Deo!” “Gloria holiday During season, the 1986-1987 the creche was on January display on the 26 to Grand Staircase from November App. 9. 59. It had a wooden fence on three sides and 15, Holy plaque stating: Display bore a “This Donated the Society.” during Name Sometime the week of December county placed plants poinsettia the red and white around the county placed evergreen The Id., fence. at 96. also small tree, bow, decorated with red behind each of the two end- posts Id., of the fence. 7.6 These trees stood 204; JEV manger alongside backdrop slightly the were and shorter angel apex than it The thus at the of the was. was creche Altogether, poinsettias, display. creche, fence, occupied space and the trees a substantial amount of on the figures Staircase. No of Santa Claus other decora Grand 2:1-21; 4 Luke 5 Matthew 2:1-11. Luke, phrase angel appearing from who to the
This comes tells of angel After the shepherds to announce the birth of the Messiah. told the they baby manger, “suddenly shepherds lying would find the God, angel heavenly praising there with the a multitude of the host was Glory peace, good saying, highest, to God and on earth will to Version). unlikely It (King men.” Luke 2:13-14 James that an wards standing at the bottom of the would be able to observer Grand Staircase distance, angel’s might but be read the text of the banner from that able to vantage point. a closer do so from indicating sign side of the staircase was a the direction 6 On each tree, county evergreen JEV 7-8. A small decorated much like offices. endposts, placed sign. was next to each directional
the trees behind Ibid. appeared App.
tions on the Grand Staircase. 188.7 Cf. (1984). Lynch Donnelly, Appendix S. A opinion photograph display. at the end of this is a county setting The uses the creche as the its annual program. During Christmas-carol See JEV 36. the 1986 county high season, invited school choirs and other musi- groups perform weekday during cal lunch hours from De- through county cember December The 23. dedicated this program peace prisoners-of- to world and to the families of persons missing war and of action Southeast Asia. App. 160;JEV 30. county
Near the Grand Staircase is an area court- “gallery house known as the forum” used for art other App. cultural exhibits. 163. creche, with its fence- frame, however, and-floral was distinct and not connected any gallery Arg. exhibit forum. See Tr. of Oral (the any integral part forum was “not kind of an of the Christ- display”); mas partments see JEV also 32-34. various de- addition, county
and officeswithin the courthouse had their own decorations, Christmas but these not also are visible *8 App. from the Grand Staircase. 167.
B City-County Building separate The is and a block removed county implies, from the and, courthouse as the name is jointly by city Pittsburgh Allegheny owned the County. city’s portion building city’s The of the houses the principal including mayor’s. city offices, The Id., at 17. responsible building’s for the Street which Grant entrance supported has Id., three rounded arches at columns. 207. years, city large
For a number of has had a Christmas tree under the arch en- middle outside Grant Street practice, city Following employees trance. this on Novem- 7 wreaths, In the arched windows behind the staircase were large two large each Ibid. red ribbon.
582 17, 1986, ber erected a 45-foot tree under the middle arch and lights Id., decorated it with and ornaments. at 218-219. A days city placed sign later, few at the foot of the tree a bearing mayor’s Liberty.” name and entitled “Salute to sign title, Beneath the stated: “During holiday city Pittsburgh this season, sa- liberty. lights lutes Let these festive remind us that we keepers liberty legacy are the of the flame of and our freedom.” JEV 41. city expanded
At least since has its Grant Street holiday display symbolic representation to include a of Cha 8-day holiday begins day nukah, an Jewish on the 25th App. the Jewish lunar month of Kislev. 138.8 The 25th of usually Kislev occurs in December,9 and thus Chanukah is holiday Day the annual Jewish that falls closest to Christmas year. began each In 1986,Chanukah at sundown on Decem Id., ber 26. at 138-139.
According to Jewish the 25th of Kislev in tradition, on (before (165 B.C.)), B.C.E. the common era the Maccabees Temple recapturing rededicated the ofJerusalem after it from accurately, the Greeks, or, more from the Greek-influenced Empire, political Seleucid Id., the course of a rebellion. Bloch, generally Background See A. The Biblical and Historical (1978) (Bloch, Bloch, Holy Days Holy Days); A. Jewish 49-78 The Biblical Background and Historical of Jewish Customs and Ceremonies 267-278 (1980) (Bloch, Ceremonies); “Hanukkah,” Encyclopedia Religion, 193- 194; Judaica, (1972); Encyclopaedia “Hanukkah,” Rankin, 1280-1288 0. (1930) Chill, Origins (Rankin); The of the Festival of Hanukkah A. The (1979) (Chill); Minhagim Trepp, Complete 241-254 L. Book of Jewish (1980) Strassfeld, (Trepp); Holidays Observance 137-151 M. The Jewish (1985) (Strassfeld). 161-177 *9 9 (4th 1975); Williams, Encyclopedia 1190 ed. J. What See Columbia (3d 1969); 302; they Worship Myers Americans Believe and How 348 ed. 202; Spier, Comprehensive generally see also Strassfeld see A. The He (1981). brew Calendar holiday
at 138.10 Chanukah is the which celebrates that early history event.11 The of the celebration of Chanukah is appears holiday’s light- unclear; central ritual —the ing lamps long single well established before a ex- —was planation of that ritual took hold.12 explains lamplighting
The Talmud13 ritual as a com during memoration of an event that occurred the rededication Temple. Temple The housed a seven-branch menor kept burning continuously. ah,14 which was to be Id., at Temple, 139, 144. When the Maccabees rededicated the they only enough day. according had oil to last for one But, (the miraculously eight days Talmud, the oil lasted for oil). length of time it took to obtain additional Id., at 139.15 publicly proclaim To celebrate this miracle, the Talmud (i. prescribes that it is a mitzvah ae., deed commandment), place lamp id., at 140,16 Jews to eight lights just outside the entrance to their homes or in a days during eight front window Id., Chanukah. (1987) Johnson, History (Johnson); P. A 10 See of the Jews 104 R. Selt zer, People, Thought: Experience History Jewish Jewish The Jewish (1980) (Seltzer). Chanukah, spelled Hanukkah,
11 Theword sometimes is Chanukkah or drawn from the 7 Encyclopaedia Hebrew for “dedication.” 1280. Judaica 161-163; 12 SeeStrassfeld Rankin 133. Talmud) (specifically Babylonian 13 TheTalmud a collection of commentary compiled rabbinic on Jewish law was the sixth cen before tury, 256-259; App. Encyclopedia Religion, “Talmud,” 140. See see also Seltzer 265. Encyclopaedia
14 “Menorah”is Hebrew for “candelabrum.” See 11 Ju- daica, “Menorah,” 1356. (Soncino Talmud, Mo’ed, Babylonian 15 SeeThe Seder 21b Shabbath 1938); 163; Trepp 143. Press Strassfeld 1972) (“In (4th ed., “Mitzvah,” Encyclopaedia in 12 Judaica 162 16 Cf. usage, meaning good common mitzvah has taken on the of a deed. Al Talmud, ready in word was used for a act as distinct this meritorious commandment”). plural positive from a mitzvah is mitzvot. *10 584 safety persecution practicality so re- from
147.17 Where lamp may placed quires, or inside the be a window blessings certain to be re- The Talmud also ordains home.18 lamp.19 lighting night One before cited each Chanukah English as “We are has been translated into such benediction blessing us with has sanctified us and commanded God who light candles of Hanukkah.” and has told us to mitzvot at 306.20 Id., any regarding
Although not contain rule Jewish law does (or lamp shape “hanuk- or substance of Chanukah customary kiyyah”), to evoke id., 146, 238,21 became memory Temple 144. The Id., of the menorah. design; Temple it had a menorah was of a tree-and-branch at 259.22 Id., candlestick with six branches. central design has menorah of tree-and-branch contrast, Chanukah day holiday plus eight a ninth for each of the branches —one — (an light used to the other the shamash extra candle to hold Temple eight). meno- at 144.23 Also contrast to Id., object; is not a sanctified it need rah, the Chanukah menorah special treated with care.24 not be 17 Bloch, According 269. to some Jewish authori See also Ceremonies miracle is the success of the Maccabees over the ties the of Chanukah Seleucids, eight days. App. 141. than that the oil lasted rather the fact candles, way, purpose lighting the Chanukah Either mitzvah, Ibid. is to celebrate a miracle. 1283; 146; 21b.
18 Trepp Encyclopaedia 7 Talmud Shabbath Judaica 19Bloch, Ceremonies 274. 20 God, you, are Lord our Ruler of the “Praised Another translation is commandments, universe, through His com our lives who has sanctified lights.” Strassfeld 167. the Hanukkah manding us to kindle Judaica, Lamp,” Encyclopaedia “Hanukkah 145; 21Trepp generally see 1288-1316. 25:31-40; also 11 forth in Exodus see menorah is set design 1356-1370. Encyclopaedia Judaica 23Bloch, 274-275. Ceremonies five Books of Moses—must be bur contains the A scroll—which Torah longer App. 237-238. when it is no usable. special in a manner ied primary Lighting is the tradition associated the menorah holiday traditions is marked other Chanukah, but give among is to children custom some Jews as well. One *11 money.25 gelt, for the children to or Another is Chanukah using gamble gelt top a with four sides. dreidel, their together letter; contains a Each of the four sides Hebrew phrase that refers to the Chanukah four letters abbreviate at 241-242.26 Id., miracle. is event as well as a Christmas, like a cultural
Chanukah, story holiday. at 143. the Chanukah Id., Indeed, religious, always political national, as well as a has had a in to divine int of national heroism addition dimension: it tells Christmas, is a winter Also, Chanukah, like ervention.27 holiday; according it was associated historians, to some as some Amer ancient times with the winter solstice.28 Just regard religious sig without to its icans celebrate Christmas nonreligious celebrate Cha nificance, some American Jews identity, expression a cultural of ethnic and “as nukah as an specifically religious rather than as a event, or national Ibid.29 event.” Bloch, 167; 277. Ceremonies
25 Strassfeld 26 Id., potato pan 277-278; Trepp 147. It a custom to serve is also they because the oil which are other fried foods on Chanukah cakes or is, tradition, App. 242- by a reminder of the miracle Chanukah. fried 243; Strassfeld 168. 164., 27 Id.,at 193; 144, 150; 176.
28 Trepp Encyclopedia Religion see also Strassfeld course, in the Southern the celebration of Christmas Chanukah Of Nonetheless, Christmas and Hemisphere during summer. both occurs long Hemisphere and have developed the Northern Chanukah first fact, In an beginning with the of winter. standing cultural associations beginning winter. as the means to mark the cient rabbis chose Chanukah Bloch, Holy Days 77. See litigation plainly Appeals in this App. 237. The Court of 29 Seealso holiday with not ... secular when it asserted Chanukah “is erred 1988). (CA3 655, 662 This assertion contradicts aspects.” 842 F. 2d by respondents’ expert own presented record evidence uneontroverted witness: significance with the set varies
The cultural of Chanukah contemporary holiday ting In Is is celebrated. which military aspects Chanukah rael, the nationalist and country, emphasis.30 story special the tradi In this receive importance gelt greater giving has taken on tion of Chanukah proximity temporal of Chanukah Christm because of the proximity suggested that the some have Indeed, as.31 prominence of Chanukah accounts for the social Christmas country.32 reason, Chanukah observed this Whatever the greater im than its American to an extent Jews community within who are non- “There are also those Jews the Jewish [T]hey something Chanukah] . on [of theistic. . . base their celebration religion.” App. other than 143. response questioning, expert added that the celebration to further *12 Thus, “certainly of Chanukah as a cultural event Ibid. on this exists.”
record, although unquestionably aspects,” Chanukah it is also has “secular (Chanukah holiday. by a See Chill 241 is celebrated secular as Jews). well as 164-165; Encyclopaedia see also 7 Judaica 1288. 30 Strassfeld 31 America, by “In Hanukkah the has been influenced celebration of giving gelt money—is While a tradition of Hanukkah an old Christmas. — one, proximity gift giving part an intrinsic the to Christmas has made holiday.” the 164. Strassfeld general, attempt equivalent “In the to create Jewish Christmas cycle given significance in than it has Hanukkah more the festival has had past.” prospered in it comes the Ibid. “Hanukkah has because about the equivalent.” same can time as Christmas and be used as the Jewish D. Elazar, Polity: Dynamics Community Organizational and The of American (1976). Jewry by pro “Hanukkah American was elaborated Jews to against glamour and tect the child and to defend Judaism the seductive Liebman, power American of Christmas.” C. The Ambivalent Jew 66 (1973). Greenblum, Identity on the See also M. Sklare & J. Jewish Subur (1967): ban Frontier 58 aspects currently emphasized “The of Hanukkah observance ex- —the change gifts lighting and the the menorah the windows ready parallels general of homes —offer to the mode of Christmas observ- holiday. provide a ance as well as ‘Jewish’ alternative to Instead of culture, general helps him alienating the Jew from the Hanukkah situate Hanukkah, short, participant in that culture. becomes for some the Jewish Christmas.”
portance would indicate: of Jewish hierarchy holidays, Chanukah low in fairly ranks religious significance.33 This status of socially Chanukah reflects its heightened cultural or secular dimension.34
On 22 of the 1986 season, December holiday city placed at the Grant entrance Street to the City-County Building 18-foot menorah Chanukah of an abstract tree-and-branch de- sign. The menorah was to the placed next city’s 45-foot Christmas one of tree, the columns against supports the arch into tree was which the set. The menorah is owned by Chabad, group,35 stored, Jewish but is erected, and re- moved each see year city. Id., 290; also Brief for 88-96, Petitioner 4.p. tree, No. the sign, and the menorah were all removed on 13. January 58, 220- App. 221. 622, is a Appendix B, p. photograph tree, sign, the menorah. 40. App. 212; JEV
I—I I—I This on litigation began 10, 1986, December when respond- ents, the Greater Pittsburgh American Chapter Civil Liberties seven residents, Union and local filed suit against the county city, and the seeking permanently enjoin from county creche in the displaying county courthouse and the city from the menorah front of displaying the City- *13 (from perspective law, See 241 the Chill of Jewish Chanukah festival”). “only a minor 34Additionally, menorahs —like Chanukah itself —have a secular as well litigation as a dimension. record in this passing contains a extensively by reference to the fact that menorahs “are used secular Jew organizations represent people.” App. ish to Jewish 310. 35 Chabad, Lubavitch, organization also known is an of Hasidic Jews teachings particular leader, who of a follow the Jewish the Lubavitch Id.., Rebbe. at 253-254. The movement Lubavitch is a branch of Hasidism, Id., which itself is branch of orthodox Judaism. at 249-250. Jews; these, Pittsburgh population 45,000 has a of total 100 to 150 fam Id., synagogue Pittsburgh’s ilies attend Lubavitch Center. at 247-251. 588 displays Respondents Building.36
County
claim
the Establishment
violate
the menorah each
the creche
applicable to state
Amendment, made
First
of the
Clause
Wallace
governments
Amendment. See
the Fourteenth
(1985).37
permit
was
Chabad
38, 48-55
472 U. S.
v. Jaffree,
display
its menorah.38
to defend the
intervene
ted to
respondents’ re
May
District Court denied
1987,the
On
Relying Lynch
injunction.
v. Don
quest
permanent
on
afor
(1984),
nelly,
that “the creche
the court stated
465 U. S.
holiday
part
stairwell and a
decoration
was
but
highschool
entertained each
foreground
which
choirs
Cert,
p.
App.
87-2050,
4a.
day
in No.
to Pet. for
noon.”
Regarding
that “it was but
the court concluded
menorah,
holiday display.”
part
insignificant
Ibid. The
of another
purpose”
displays
a secular
that “the
had
court also found
entanglement of
excessive
“did not create an
religion.”
at 5a.
Id.,
panel
Respondents appealed,
of the Court
and a divided
1988).
(CA3
Appeals
Distin-
In the course of
cases, this Court has
come to understand the Establishment Clause to mean that
government may
promote
any
not
or affiliate itself with
reli-
gious
organization,40may
doctrine or
among
not discriminate
persons
religious
on
practices,41
the basis of their
beliefs and
39
Borden,
See
Jews, Turks,
(1984)
also M.
and Infidels
(charting the
history
against
of discrimination
non-Christian citizens of the United
States
the 18th and
centuries); Laycock,
19th
“Nonpreferential” Aid to
Religion: A False
Original Intent,
Claim About
27
Mary
Wm. &
L. Rev.
(1986)
(the
(Laycock)
919-920
intolerance
18th-century
of late
Ameri
Catholics, Jews,
cans
Moslems,
towards
and atheists cannot be the basis of
interpreting the
today).
Establishment Clause
may
A State
neither
public-school
allow
religious
students to receive
public-school
instruction on
premises, Illinois ex rel. McCollum v. Board
Education
School Dist. No.
Champaign County,
“The ‘establishment of clause the First religion’ at least a state Amendment means this: Neither nor the Federal can set a church. Neither can up Government laws which aid one aid all or pass religion, religions, pre- another. in- fer one over Neither can force nor religion fluence a to to or go away remain from church person him his will or force a belief or against profess disbe- No lief can be for en- any religion. person punished or beliefs or for disbeliefs, tertaining professing in any church attendance or non-attendance. No tax can amount, small, or be levied to reli- large support any institutions, activities or whatever be gious they may form teach or called, they may or whatever adopt Neither a state nor the Federal Gov- practice religion. or in the affairs can, secretly, participate ernment openly vice versa.” or any organizations groups Id., at 15-16. (1985)
Inc.,
709-710,
employ-
703,
(reasoning
and n. 9
that other
472 U. S.
taking
particular day
for
off from
strong reasons
might also have
ees
(invali-
(1982)
Valente,
week).
Larson v.
456
228
also
U. S.
work each
See
registration
reporting requirements
imposed
dating a statute that
of their
only
religious organizations that solicit more than 50%
upon
those
nonmembers).
funds from
Inc.,
(1982).
Den,
42 Larkin v. Grendel’s
Our decisions governmental unconstitutionally tion of action that advances religion. years, paid particularly In recent we have close challenged governmental practice attention to whether the purpose “endorsing” religion, either has the or effect con- long place cern that has had a in our Establishment Clause jurisprudence. Engel Vitale, See v. 370 U. S.
(1962). Thus, S., Jaffree, Wallace held unconstitutional moment-of-silence Court Alabama’s purpose ... statute because it was “enacted sole expressing prayer *17 the State’s endorsement of activities.” similarly The Court invalidated Louisiana’s “Creationism religion” purpose. Act” because it “endorses its Edwards (1987). Aguillard, 578, v. 482 593 And the U. S. educational 44 See, 589, g., Kendrick, (1988); e. Bowen v. 487 U. S. 602 Edwards v. Aguillard, S., 583; Washington Dept. 482 U. at v. Witters Services for Blind, (1986); 410; 481, Aguilar Felton, S., 474 U. S. 485 v. 473 at U. Ball, S., 382-383; Rapids Dist. v. 473 U. at Estate School Grand Caldor, S., Inc., 708; Jaffree, v. 472 at Wallace v. 472 U. S. Thornton U. Den, S., (1985); Inc., 123; 38, 459 v. 55-56 Larkin v. Grendel’s U. at Stone Graham, S., 40; Religious 449 at Public Education and U. Committee for 646, (1980); Pittenger, supra; 444 653 Meek v. Liberty Regan, v. U. S. (1973); Lemon, 825 Public Education v. 413 U. S. Committee Sloan for 756, (1973); Nyquist, 413 772-773 Religious Liberty v. U. S. Hunt v. and (1973); McNair, 734, Levitt v. 741 Committee Public Educa 413 U. S. for (1973). Liberty, 472, Religious 413 U. S. 481-482 tion and
593 Ball, School Dist. Grand program v. 473 U. S. Rapids 373, (1985), 389-392 was held to violate the Establishment Clause because of its “endorsement” effect. See also Texas Inc. v. (1989) Monthly, Bullock, 489 1, U. S. 17 (plurality (tax opinion) limited to exemption religious periodicals “effec- belief”). tively endorses religious course, Of the word “endorsement” is not self-defining. Rather, it derives its from other words that this meaning Court has found useful over the years interpreting Thus, Establishment Clause. it has been noted that the pro- hibition endorsement of against governmental religion “pre- clude[s] from or conveying attempting convey that message religion or belief is particular religious Wallace v. Jaffree, or 472 U. at 70 preferred.” S., favored added). J., concurring judgment) (emphasis (O’Connor, Accord, Texas Inc. v. Monthly, Bullock, 489 U. S., 27, 28 (separate opinion concurring judgment) (reaffirming not favor belief over disbelief” or “government may for the dissemination of adopt “preference religious ideas”); Edwards v. 482 Aguillard, S.,U. at 593 (“preference” beliefs constitutes an endorsement of reli- particular religious School District v. gion); Abington Schempp, 374 U. S. (1963) (“The J., fullest (Goldberg, concurring) realization of true . . religious liberty requires government. effect no favoritism sects among religion or between nonre- Moreover, the term “endorsement” ligion”). closely linked to the term v. Lynch Donnelly, “promotion,” at 691 and this S., J., U. Court concurring), long (O’Connor, since has held that not . . . government “may promote one or even theory another against against Arkansas, opposite,” Epperson the militant v. U. S. (1968). See also Wallace Jaffree, S., 59-60 endorsement, (using concepts promotion, favorit- *18 ism interchangeably). “endorsement,”
Whether word key “favoritism,” is or the essential remains the same. The “promotion,” principle very prohibits govern- Establishment Clause, least, appearing position questions ment from to take a on “making belief or from adherence ato rele- any way person’s standing political in vant to a in the commu- nity.” Lynch Donnelly, (O’Connor, v. S.,U. at 687 J., concurring).
B
past
apply
We have had occasion in the
Establishment
principles
government’s display
objects
Clause
to the
religious significance.
Graham,
Stone v.
inclusion of the creche the Pawtucket hold ing, inter alia, that the inclusion of the creche did not have impermissible advancing promoting religion.45 effect of majority opinion Lynch
The rationale of the is none too opinion clear: the pro- contains strands, two neither of which guidance subsequent vides for decision in cases. First, the opinion display states that the inclusion of the creche was “no more an religion” advancement or endorsement of approved than other “endorsements” this Court has in the past, opinion at S., 683—but the offers no discernible distinguishing permissible measure for imper- between opinion missible endorsements. Second, observes that any government’s gave benefit the of the creche to re- ligion was no more than “indirect, remote, and incidental,” —ibid, saying why. without how or 45 Thereis no need here to applications Lynch review the “pur pose” “entanglement” elements of the inquiry, Lemon since present Appeals action the Court of did not consider these issues. *19 joined majority Justice O’Connor
Although opinion Lynch, she wrote a concurrence that differs in significant from the The main difference is respects majority opinion. that the concurrence a sound framework provides analytical use of evaluating governmental religious symbols. squarely rejects any foremost,
First and the concurrence notion that this Court will tolerate some en- religion. recognizes dorsement of the concurrence Rather, any “invalid,” id., endorsement of because message they it “sends to nonadherents that are outsiders, political community, accompa- not full members of the and an nying message they to adherents that are insiders, favored political community,” id., members of the at 688.
Second, concurrence articulates method for determin- ing government’s object whether the use of an meaning religion. endorsing has the effect of The effect of display depends upon message government’s that the practice question may communicates: the is “what viewers fairly purpose display.” understand to be the Id., at necessity, inquiry, upon 692. That turns context object appears: typical “[A] which the contested museum set- ting, though neutralizing not content of a reli- negates any gious painting, message of endorsement of that emphasizes Ibid. The content.” concurrence thus constitutionality depended upon of the creche in that case its “particular physical setting,” ibid., and further observes: “Every government practice judged unique must be its cir- religion,” [endorses] id., cumstances to determine whether it at 694.46 approach Lynch majority The difference between the and the con especially opinion’s
currence is
evident in each
treatment of Marsh v.
(1983).
Chambers,
case,
In
The four dissenters with the concurrence controlling question ha[d] was “whether Pawtucket by endorsing religion run afoul of the Establishment Clause through display its of the creche.” Id., 698, n. 3 (Bren- dissenting). agreed J., The dissenters also with the nan, by paid chaplains, ers contrary would be a stilted overreaction to our his- tory S., holdings.” Lynch, our at 686. concurrence, contrast, harmonized the result in Marsh with the principle rigorous way, endorsement in a explaining legislative prayer that (like Court) the invocation that commences each session of this is a form of “servefs],
acknowledgment of that only wa[y] in the reasonably possible culture, legitimate in our purposes the secular solemnizing pub- occasions, expressing future, lic confidence encouraging the rec- ognition worthy appreciation society.” S., what is U. 693. history The function and of this form suggest of ceremonial deism practices “those are not understood conveying government approval as Ibid,.; particular religious id., (BREnnan, J., beliefs.” see also at 717 dissenting).
general proposition that the context in which the religious symbol determining uses a relevant the an- question. They simply swer to that Id., at 705-706. reached different answer: the dissenters concluded display negate other elements of the Pawtucket did not presence endorsement of Christian faith caused They city’s creche. viewed the inclusion of the creche in the placing government’s imprimatur overall “the approval particular religious exemplified by on the beliefs they Id., creche.” at 701. Thus, stated: “The effect on mi- nority religious groups, may reject as well as on those who all religion, convey message is to that their views are not similarly worthy public recognition public nor entitled support.” Ibid. despite divergence
Thus, at the line, bottom five Jus- Lynch agreed upon tices in concurrence and dissent in *21 principles: government’s relevant constitutional the use re-of symbolism ligious is if unconstitutional it has the effect of en- dorsing religious government’s beliefs, and the effect of the religious symbolism depends upon use of its context. These general principles adopted by sound, are and have been the subsequent Lynch, Court in cases. Since the Court has evaluating that, made clear when the effect of conduct under the Clause, Establishment we must ascertain challenged governmental sufficiently “the whether action is by likely perceived controlling to be adherents of the denomi- as an endorsement, nations and the nonadherents as a dis- approval, Rap- of their individual choices.” Grand Accordingly, present ids, S., 473 U. at 390. our task is to display determine whether the of the creche meno- and the respective “particular physical settings,” rah, in their has the endorsing disapproving religious effect of beliefs.47 47 county city argue The and that use religious symbols the their of does they not the violate Establishment Clause are be unless shown to “coer Reply County Allegheny 1-6; cive.” Brief for Petitioners et Tr. al. 9,11. recognize Arg. They Oral repeatedly this Court has stated that
r-n county’s display. There is no first turn to the creche We capable communi- the creche itself doubt, course, Lynch, cating religious message. at 685 S.,U. See concurring); opinion); (majority J., at id., (O’Connor, dissenting); J., id., id., at 701 (Black- (Brennan, dissenting). in uses Indeed, creche this lawsuit mun, J., Nativity picture make words, scene, as well of the “Glory unmistakably religious meaning in clear. to God its angel Glory Highest!” says in to God be- the creche— praise to of the birth of Jesus. This God Christian cause just indisputably as it terms is —indeed sectarian — Gospel said or in a church service. is when holding Lynch, of a creche Under Court’s effect nothing display setting. Lynch, Here, turns on its unlike display reli- from the creche’s in the context of the detracts fig- comprised gious message. Lynch display a series point. objects, group had its each of which own focal ures sepa- objects reindeer of attention house and his were Santa’s story specific had from the their visual creche, rate may Similarly, “talking” wishing be, tell. whatever well obviously separate from the creche. was a of attention center single alone: it Here, the creche stands is the contrast, on the Grand Staircase.48 element necessary any “proof of coercion” element claim under is “not Religious Public Education and Establishment Clause.” Committee for 786; S., Abington v. Liberty Nyquist, also District see School *22 222-223; Engel Vitale, S., But S., v. 430. Schempp, 374 U. at at principle. Reply Brief they suggest that reconsider this the Court 3; Congress Allegheny County et al. cf. American Jewish Petitioners (CA7 1987) McConnell, opinion); Chicago, (dissenting F. 827 2d 137 Establishment, L. Rev. Mary 27 Wm. The Element of & Coercion: Lost (1986). so, proceeds to control apply The to do and the 933 Court declines showing require independent ling endorsement which does not inquiry, of coercion. presence or other Christmas decorations elsewhere of Santas forum, negate county courthouse, nearby gallery the fail to the the and of surrounding
The floral decoration the creche cannot be equivalent symbols viewed as somehow to the in the secular Lynch display. good overall frame, frames, The floral like all only message serves to draw one’s attention to the the inside surrounding frame. The floral decoration the creche con- than to, from, tributes rather detracts the endorsement of religion conveyed by county the creche. It is ifas had Holy Society display Name allowed the on the cross county Grand Easter, Staircase had surrounded county say the cross with Easter lilies. The could not that surrounding the cross with traditional of the flowers season negate Christianity conveyed by would the endorsement of the cross on the Grand Staircase. Its contention that the greens negate traditional Christmas the endorsement effect of the creche fares no better. setting
Nor does the fact that the creche was the for the county’s program annual Christmas-carol diminish its reli- gious program meaning. only the carol First, 1986lasted occupied from December 3 to December at most one day. hour a 28. The effect of the JEV creche on those who major- singing viewed it when the choirs were not vast —the ity negated by presence of the be time—cannot of the program. per- choir Second, because some of the carols formed at the creche were nature,49 site of the likely augment qual- those carols were more ity of the scene than to secularize it.
Furthermore, Staircase, the creche sits on the Grand part” building “main” and “most of the is the beautiful county App. government. seat of 157. could No viewer reasonably occupies think that it this location without clearly endorsement effect creche. The record demonstrates frame, creche, any was its own from its floral distinct building. Arg. in the Tr. 7. other decorations or exhibitions of Oral 49 App. nonreligious sung as well as (religious See carols were program).
600'
support approval government.50 by permit- and of the Thus, ting “display particular physical the of the creche this set- ting,” Lynch, concurring), 465 S.,U. at 692 (O’Connor, J., county message supports the sends an unmistakable that it promotes praise the Christian to God that is the creche’s religious message. sign disclosing
The fact that the creche bears a
its owner-
ship by
organization
a Roman Catholic
does not alter this con-
contrary,
sign simply
clusion. On the
demonstrates that
government
endorsing
religious message
of that
organization,
communicating message
rather than
of its
only
own. But the Establishment Clause does not limit
religious
government’s
content of the
own communications.
prohibits
government’s support
It
promotion
also
by religious organizations.
communications
See,
g.,
Monthly,
(1989)
e.
Texas
Inc.
Bullock,
v.
1S.
(government support
of the distribution of
mes-
sages by religious organizations violates the Establishment
Clause).
very concept
Indeed, the
of “endorsement” con-
50The
appear
Grand Staircase does not
to be the kind of
location which
all
place
were free to
displays
time,
their
for weeks at a
pres
so that the
ence of the creche in that location for over six weeks would then not serve
associate the
with the creche. Even if the Grand Staircase
occasionally
(for
displays
was used for
other than the
example,
créche
a dis
play
flags
commemorating
anniversary
the 25th
independ
Israel’s
ence, id.,
176),
any display
remains true that
fairly may
located there
be
express
understood to
views that
support
receive the
and endorsement
government.
any event,
In
county’s
press
own
releases made
public
clear
county
to the
associated itself with the creche.
JEV
(flier
identifying
program county
id.,
30;
the choral
sponsored);
App.
(linking
the creche
program). Moreover,
to the choral
county created a visual link between
placed
itself and the creche: it
next to
county signs
official
evergreens
two small
identical to those in the creche
display.
respect,
this
the creche here does not
“public
raise the
kind
issue,
Vincent,
forum”
cf.
v.
(1981),
Widmar
presented by
U. S. 263
(CA2
McCreary
Stone,
1984),
creche
739 F.
2d 716
aff’d
equally divided Court sub nom. Board
Trustees
Scarsdale v. Mc
(1985)
Creary,
(private
public park).
veys someone else’s of the sense religion, by government Es- prohibiting of the endorsement prohibits precisely what occurred here: Clause tablishment lending support government’s to the communicationof its the message. religious religious organization’s county argues Finally, that it is sufficient to validate the display dis- on the Grand Staircase that the of the creche the play is a national Christmas, and Christmas celebrates holi- proves day. argument-obviously would too much. It This inside a courthouse on of the Eucharist celebration allow the county may have doubts about While the Eve. Christmas celebrating Eucharist inside status of the constitutional auspices, government’s Tr. of see courthouse under may government Arg. not. The Court does 8-9, this Oral acknowledge phenomenon, but under as a cultural Christmas may it as a not observe Christian the First Amendment praise people of holy day suggesting for the birth that God Jesus.51 may government celebrate Lynch teaches sum, way in a but not form, manner and in some
Christmas
County
Allegheny
has
Here,
doctrine.
Christian
endorses
Christmas
transgressed
to celebrate
line.
It has chosen
this
endorsing patently
way
Christian
effect of
that has the
in a
Glory
Christ. Under
message:
of Jesus
for the birth
to God
required
nothing
more is
Lynch,
cases,
of our
and the rest
an “accommodation” of
justified as
display of the creche be
can the
Nor
Christ
Presiding Bishop Church
Jesus
Corporation
religion. See
of
of
(1987).
Amos,
efforts
Government
Latter-day
V join three him Justices who Kennedy find would creche consistent with the argues Establishment Clause. He that this nec- conclusion essarily follows from the Court’s decision in Marsh v. Cham- (1983), bers, U. S. 783 which sustained constitution- legislative ality prayer. Post, He 665. also asserts setting, poses creche, even in this “no risk” realistic *25 “representing] post, proselytize,” an effort to at hav- 664, ing repudiated inquiry the Court’s in endorsement favor “proselytization” approach. analysis The Court’s unjustified hostility creche, contends, he “reflects an toward religion.” Post, at 655. permitting reasons for Kennedy’s the creche on
Justice the Grand Staircase and his condemnation of the Court’s rea- deciding reaching impli- sons for otherwise so far are their they require response depth. cations that in some
A specifically In Marsh, the Court relied on the that fact Congress legislative prayer authorized at the same time that produced Rights. supra. the Bill of 46, See n. Justice argues legitimates however, “prac- that Marsh all Kennedy, greater potential tices no with for an establishment of reli- gion” “accepted dating than those traditions back to the Founding.” Post, 670, Otherwise, 669. the Justice as- (“In practices such serts, as our national motto We God Trust”) (with Pledge Allegiance phrase and our “under 249) danger God,” 1954, added Pub. 396, L. 68 Stat. are in invalidity. previous opinions Our have considered in dicta the motto pledge, characterizing and the them as consistent with the proposition government may not an en- communicate Lynch,
dorsement of belief. S.,U. at 693 (O’Connor, concurring); (Brennan, J., id., at 716-717 J., dissenting). subject We need not return to the of “ceremo- supra, nial deism,” see n. because there is an obvious displays distinction between creche and references to God pledge. history may the motto and the However affect constitutionality of nonsectarian references to government,52history legitimate practices cannot government’s allegiance particular demonstrate the to a sect or creed. recognized
Indeed, Marsh itself, the Court that not even “unique history” legislative prayer, S.,U. at 791, justify contemporary legislative prayers can that have the ef- affiliating any fect of specific one faith legislative prayers or belief. Id., at 794-795. The involved principle Marsh particular did not violate this because the chaplain had “removed all references to Christ.” Id., plainly n. 14. sweeping Thus, Marsh does not stand for the Kennedy proposition apparently would ascribe to namely, accepted practices years it, that all old and their equivalents today. given are constitutional Nor can Marsh, reasoning, compel its facts and its the conclusionthat the dis- play of the creche involved in this lawsuit is constitutional. *26 Kennedy Although says compre- Justice that he “cannot hend” how the creche could be invalid Marsh, after post, surely distinguish specifi- 665, he is able between a cally symbol, general Christian like a creche, and more reli- gious legislative prayers references, like in Marsh. 52 It noting just is worth that because Marsh validity sustained the legislative prayer, of necessarily does not practices follow that like proclaiming Day Prayer a National of post, are constitutional. See Legislative 672-673. prayer urge does not engage citizens to in practices, and on that basis distinguishable could well be from an exhorta tion from people they to the that engage conduct. But, practice us, as this express is not before we judgment no about its constitutionality. 604 gut reading the core Marsh would of Kennedy’s
Justice it. this understands Clause, as Court Establishment of the say, perhaps history contains it is sad Nation, this Christianity examples endorsed acts that of official numerous specifically. Turks, and Infidels Borden, Jews, See M. (1984).53 Founding examples to the date back of these Some heritage Republic,54 discrimination this of official but of the 53 especially apt in recounts is one that is Among the this scholar stories Kennedy’s Proclamations, post, Thanksgiving citation of light of Justice at 671: Carolina, Hammond, announced a governor of H. South “When James 1844, Humiliation, Prayer’ in he . . . exhorted and day ‘Thanksgiving, respective places at their all to assemble ‘our citizens of denominations Creator, and his Son Jesus worship, up to offer their devotions to God their protested, Christ, of the world.’ The Jews of Charleston the Redeemer preference discrimination charging Hammond with ‘such obvious por- utter exclusion of a your proclamation, as amounted to an the tenor of responded T have people of Carolina.’ Hammond tion of the South I in a land! And thought it a matter that lived Christian always settled people. That in magistrate of a Christian temporary I chief that was be, people publicly, I called to an country among such a should such a acknowledging for account, required to make amends reprimanded and world, pos- have believed of the I would not as the Redeemer Jesus Christ 1845).” (The Occident, January Borden sible, pass’ if it had not come to Borden). (emphasis n. nonsectarian or deist mold Thus, Thanksgiving Proclamations fit the not all Kennedy. Moreover, the by Jews examples quoted did those sectarian succinctly captured precise evil caused such of Charleston they pref- an official Hammond’s: demonstrate proclamations as Governor against Christianity corresponding officialdiscrimination and a erence for political non-Christians, portion amounting to an exclusion of all Clause, in very evil that the Establishment community. against It is this Indeed, better could not have the Jews Charleston part, is directed. inquiry. concepts endorsement formulated the essential instance, Maryland adopted Rights” a “Declaration reli impose support “for the of the Christian legislature to a tax allowed its “a belief the Chris that all state officialsdeclare gion” requirement and a Stokes, in the States 865- and State United religion.” 1 A. Church tian (1950). against to remove these discriminations Efforts made *27 id., Id., (quot- at at also 513 unsuccessful. 867. See were non-Christians
605 against place jurisprudence no non-Christians has in the of the Establishment Clause. else Whatever the Establish (and may ment mean we Clause have held it to mean no offi preference nonreligion, g., cial for even over see, e. Monthly, (1989)), Texas Bullock, Inc. v. S. 1 U. it cer tainly very government may means at the that least not dem (includ preference particular onstrate a for one sect or creed ing preference Christianity religions). for over other “The clearest command the of Establishment is that Clause one officially preferred denomination cannot be over (1982). another.” v. Valente, Larson U. S. 228, throughout There have been breaches of this command this history, they any way Nation’s but cannot diminish in Laycock, swpra, force of the command. Cf. n. 923.55
B Although misreading Kennedy’s is of Marsh predicated recognize on a failure to the bedrock Establish- principle regardless history, govern- ment Clause that, may preference particular ment not demonstrate for a faith, acknowledge even he is forced to that some instances of such constitutionally favoritism are 664-665, intolerable. Post, long n. 3. He concedes also that the term “endorsement” way defining “preference” has been another a forbidden for ing explicitly proclamation Adams, Christian of President John who urged grace “through all Americans to seek God’s the Redeemer of the “by Holy Spirit”). world” and His Kennedy evidently 55 Justice contemporary believes that references (like Jesus) exclusively Trinity divinity creeds Christian or the proclamations justified by official acts or sentiments responsible adoption those the First See 2 J. Amendment. Story, § Commentaries on Constitution of the United States (1858) (at p. adoption, general, the time of the First Amendment’s “the was, Christianity if not the universal in America ought sentiment state”). Court, however, encouragement from squarely receive This rejected proposition has that the Establishment Clause is to be inter Christianity preted any light may favoritism for have existed among Republic. Jaffree, S., the Founders of the Wallace v. at 52. *28 606 particular post, repudiate sect, but he would 668-669, inquiry “jurisprudence
the Court’s endorsement
aas
of minu-
post,
particular
tiae,”
674, because it examines the
con-
symbols.
employs religious
texts which
tagged many
label,
course,
This
could be
on
areas of
adjudication.
example,
determining
constitutional
For
requires
prob-
whether the Fourth Amendment
a warrant and
government may
particular
able cause before the
conduct a
gov-
seizure,
search or
“we have not hesitated to balance the
privacy
practicality
ernmental
interests to assess the
probable
requirements
particu-
the warrant and
cause
in the
Railway
lar context,” Skinner v.
Labor Executives’ Assn.,
(1989)
added),
(emphasis
inquiry
Indeed, not even under Justice Kennedy’s proach can the Establishment be into an Clause transformed exception to this rule. The Justice would substitute the “proselytization” post, term “endorsement,” for at 659-660, “proselytization” 661, 664, but his suffers the same test from requiring “defect,” if one must call that, close factual analysis. example, Kennedy doubt, has no “for city permit [Establishment] Clause forbids permanent large city erection of a Latin cross on the roof of year-round religious hall . . . because such obtrusive dis- play place government’s weight would behind an obvious proselytize particular religion.” effort to on behalf of a Post, suggests city at 661. He also that a would demonstrate an preference Christianity displayed unconstitutional if it symbol during every major holiday Christian Christian but religious symbols did not during of other faiths *29 religious holidays. other Post, at 664-665, n. 3. But, for enough preference Kennedy, would it be of a Justice Christianity city year displayed if that each a creche for 40 days during days the Christmas season and a cross for 40 dur- (and ing symbols religions)? Lent never the of other If so, 40-day then what if there were no cross but the creche dis- play sign exhorting city’s contained a the citizens “to offer up their devotions to God their Creator, and his Son Jesus supra. Christ, the Redeemer of the world”? See n. 53, point questions of these rhetorical is obvious. In order precisely government to define what could and could not do “proselytization” Kennedy’s under Justice test, the Court particular would have to decide a series of cases with fact patterns along spectrum government that fall refer- (from permanent display ences atop to of a cross city passing hall a reference to divine Providence in an address). official If one wished to be “uncharitable” to Jus- post, say see at 675, one could that his meth- tice Kennedy, odology requires counting days during the number of which government displays symbols subtracting Christian days during from this the number of which non-Christian symbols displayed, by are divided the number of different religions represented displays, non-Christian in these factoring equation prominence then somehow into this display’s degree sym- location and the to which each possesses inherently proselytizing quality. bol an Justice position by pointing course, could defend his Kennedy, inevitably fact-specific question nature of the whether particular governmental practice signals government’s preference specificreligious unconstitutional for a faith. But because Justice Kennedy’s formulation this essential Es- inquiry tablishment Clause less fact is no intensive than the adopted “endorsement” the Court, formulation Justice wary accusing Kennedy should be the Court’s formulation “using tape post, measure,” little more than intuition and a lest he find his formulation convicted own on iden- charge. tical perhaps only
Indeed, real distinction between Justice “proselytization” test and the Court’s “endorse Kennedy’s inquiry clarity ment” is a burden of “unmistakable” apparently require Kennedy would specific favoritism for sects order to hold the favoritism in violation of the Post, Establishment Clause. at 664-665, question particular practice n. 3. The whether “would place government’s weight behind an obvious effort to proselytize particular religion,” post, for a is much the practice government’s same as whether the demonstrates the *30 support, promotion, particular or “endorsement” of the creed particular except requires of a to the extent that it an sect— allegiance government “obvious” between the and the sect.56 impose cases, however, Our no such burden on demon- strating particular has favored sect or contrary, expressly required creed. On the we have “strict 56 test, In describing “proselytization” what would violate his JUSTICE Kennedy adjectives “permanent,” “year-round,” “continual,” uses the 661, 664-665, 3, post, at n. suggest temporary as if to that acts of favor particular for a itism sect do not violate the Establishment Clause. Pre Kennedy however, sumably, really adjec does not intend these Justice principle, tives to define the limits of his since it is obvious that proselytize may duration, government’s efforts to be of short as Governor 53, Thanksgiving Hammond’s Proclamation illustrates. n. supra. See In event, repudiated any any preferences particular the Court notion that when, permissible permanent are beliefs unless Bowen v. Ken S., 620, drick, inquiry at it ordered an “specific into the instances of impermissible may behavior” have occurred in the administration of a statutory program.
scrutiny” practices suggesting prefer- “a denominational ence,” “ keeping Larson v. Valente, 456 U. S., 246, ” unwavering vigilance ‘the requires’ that the Constitution against any violation of the Establishment Clause. Bowen (1988) v. Kendrick, 487 U. S. J., con- (O’Connor, curring), quoting (dissenting opinion); id., at 648 see also Lynch, (“[T]he concurring) atS.,U. 694 (O’Connor, J., myriad, ways subtle in which Establishment Clause values judicial can be scrutiny” eroded” necessitates “careful “[g]overnment practices purport to celebrate or ac- knowledge religious significance”). events with Thus, when all done, is said and Kennedy’s effort to abandon Justice inquiry “proselytization” the “endorsement” in favor of his nothing attempt test seems more than an to lower consider- ably scrutiny the level of in Establishment Clause cases. vigilance We choose, however, to adhere to the the Court has managed to maintain thus far, and to the endorsement in- quiry vigilance.57 that reflects our Kennedy clear, moreover, It why is not thinks the the creche in permissible this lawsuit is even lax “proselytiza under his tion” Although early test. opinion on in his he finds “no realistic risk that represents] the creche . . . an proselytize,” post, effort to at the end he eager proselytizer concludes: may [public “[T]he seek to use creche displays] for urge his own ends. The to use them to teach or to taunt is added). ahvays present.” Post, (emphasis at 678 Whatever the cause of inconsistency, this it should be obvious to all that the creche on the Grand Staircase message communicates the that Jesus is the Messiah and to be worshipped such, inherently prosyletizing if message ever there was fact, one. angel display represents, the creche according to tradition, Christian original “proselytizers” one of the of the Christian angel appeared faith: the who shepherds to the to tell them of the birth of Kennedy *31 Thus, Christ. it would seem that Justice should find this dis play according unconstitutional application to a consistent principle his government may that place not weight its pros behind obvious efforts elytize specifically. Christian creeds Kennedy’s Contrary assertion, to Justice the Court’s decision in Lynch does not foreclose Lynch certainly this conclusion. “dispos- is not claim,” post, itive of regarding government’s [a] at display of a (like creche bearing explicitly proselytizing sign rejoice “Let’s all
c repeatedly Although Kennedy accuses Court Justice hostility” harboring or “callous indifference” to- a “latent nothing religion, post, at could be further from 657, 664, ward be said to be as offensive truth, and the accusations could they apparently has mis- Kennedy as are absurd. Justice pluralism, respect perceived respect religious for com- hostility Constitution, manded or indifference to religion. misperception No could be more antithetical to the values embodied the Establishment Clause. weapon Kennedy’s accusations are shot from a
Justice triggered by following proposition: government may if aspects Christmas, celebrate the secular then it must be religious aspects because, allowed to celebrate the as well discriminating against government otherwise, the wTouldbe just religious, as a and not citizens who celebrate Christmas holiday. proposition, at secular, Post, 663-664. This how government ever, is flawed its foundation. The does not any against discriminate citizen the citizen’s on basis of government faith if the in its functions is secular operations. contrary, On the the Constitution mandates that secular, remain rather than affiliate precisely itself beliefs or order institutions, discriminating among to avoid citizens on the basis of their religious faiths.
A it state, remembered, secular must be is not the same as antireligious an atheistic or state. A secular state estab- lishes neither atheism nor as its officialcreed. Jus- exactly says Kennedy thus has backwards when he tice enforcing requirement govern- the Constitution’s that Christ, world,” 53, supra). Jesus the Redeemer of the cf. n. As much as Kennedy tries, 665-666, post, hiding see there is no behind the Justice constitutionality every Lynch possible govern- fiction decides Kennedy’s fiction, display. stripped of this ment creche Once basis, opinion transparently principled prece- lacks a with our consistent dents, be held constitutional. asserting that the creche here must *32 prescription orthodoxy.
ment remain secular ais Post, at directly proscription 678. It follows from the Constitution’s against government religious affiliation with beliefs or insti- orthodoxy religious that no tutions there is on matters in Although the secular state. accuses the Kennedy Justice history,” rewriting perhaps Court “an of Orwellian it ibid., slipped is himself has a who into form of Kennedy newspeak equates Orwellian when he the constitutional com- government prescribed orthodoxy. mand secular with a society pluralistic may sure, To be in a there be some religion would-be wish theocrats, who that their were an es- perhaps may creed, tablished of them some be even au- enough religion dacious to claim that the lack established against preferences. gets discriminates their But claim this premise relief, no for it contradicts the fundamental princi- Establishment Clause itself. The antidiscrimination ple necessarily inherent the Establishment Clause means that would-be discriminators on the basis of cannot prevail. prohibiting government
For
claim
reason,
this
celebrating
religious holiday
from
Christmas as a
discrimi-
against
nates
Christians
favor of nonadherents must fail.
Celebrating
religious,
opposed
as a
as
a secular,
Christmas
to
holiday, necessarily
professing, proclaiming,
entails
or be-
lieving
manger
Nazareth,
that Jesus of
born
Bethle-
government
If
hem,
Christ,
is the
the Messiah.
cele-
(for
holiday
example, by
Christmas
brates
issuing
proclamation saying:
rejoice
an official
“We
in birth!”),
glory
government really
of Christ’s
it means that the
declaring
specifically
Messiah,
Jesus to
be
Christian
confining
government’s
In contrast,
belief.
own celebra-
holiday’s
aspects
tion of Christmas
does
secular
not
favor the
those
beliefs
non-Christians over
simply permits
Christians.
to ac-
Rather,
knowledge
holiday
allegiance
expressing
without
an
Chris-
would
favor
truly
beliefs,
allegiance
Christian
*33
may
sure, some Christians
To be
tians over non-Christians.
to
its
Chris-
allegiance
proclaim
to see the government
wish
Christmas, but the Con-
in a
celebration
religious
tianity
desire,
of that
the gratification
not permit
stitution does
”
“
it is
liberty’
secular
the ‘the
logic
contradict
which would
See
to protect.
Establishment Clause
of the
the purpose
Valente,
The
Bailyn,
Larson
B.
S.,
244,
quoting
v.
(1967).
American Revolution
of the
Origins
Ideological
of Christmas
lo
celebrations
course, not all religious
Of
violate the Establishment
property
on government
cated
unconstitutional,
for
for
example,
It
is not
obviously
Clause.
go caroling
a
church to
from local
a
group
parishioners
a
in Advent or for Chris
Sunday
on
city
any
through
park
their
during
carols
to
university
sing
tian club at a public
Vincent,
Equally prop- faith located on government of Christian proclamations because Clause just are the Establishment erty permitted as the exam- season, holiday occur Christmas they during And once illustrates. surely in the courthouse of Mass ple made that a particular proclamation has been judgment loca- from a belief, particular when disseminated Christian of demonstrating has the effect on government property, tion then it nec- faith, endorsement of Christian the government’s to enjoined protect must be practice follows essarily some citizens who follow of those rights the constitutional thus incontrovertible It is Christianity. creed other than on the determina- today, premised decision that the Court’s demon- on the Grand Staircase display tion that the creche Kennedy post, says, n. Thus, when he is incorrect require why today’s does not explain decision that the Court fails public property. music from religious of all Christmas elimination county’s Christianity, strates the endorsement of not does represent hostility but, instead, or indifference to respect diversity the Constitution requires.59
VI display City- The of the Chanukah menorah in front County Building may present well a closer constitutional question. recognize, menorah, one must is a symbol: it serves to commemorate the miracle of the oil as de- message scribed in the Talmud. But the menorah’s is not exclusively religious. primary The menorah is the visual 59In attempt legitimate his of the creche on the Grand *34 Kennedy Staircase, repeatedly characterizes it as an “accommo Justice See, religion. g., post, dation” of e. at 664. But an accommodation of 663, Clause, religion, permitted in order to be under the Establishment must lift “an religion.” Corporation identifiable burden on the exercise of of Presiding Amos, Bishop Latter-day v. Church Jesus Christ Saints of of of S., (emphasis in J., concurring judgment) at 348 in (O’ConnoR, 483 U. McConnell, original); Religion, see Accommodation also of S. Ct. Rev. “specifically 1, (defining “accommodation” as action as for 3-4 purpose facilitating religion,” usually by exempt the the free exercise of thus, ing religious practices general regulations). from Defined the con cept plainly display of accommodation has no relevance to the of the creche in siupra. this lawsuit. See n. Kennedy may agree scope One with Justice the of accommoda- permissible larger scope tions under the than the Establishment Clause is by post, mandated the Free at accommodations Exercise Clause. See example prompted by n. 2. An the Court’s decision Goldman (1986), Weinberger, readily although the Free 475 U. S. comes to mind: require exempt yarmulkes Air from Exercise Clause does not the Force to rule, plausible a no-headdress it is at least that the Establishment Clause permits promulgate regulation exempting yarmulkes Air to a the Force (and religiously headeoverings) similar motivated from its no-headdress category “permissible religion rule. But a accommodations of not re- quired the Free Exercise Clause” aids the creche on the Grand Stair- location, Prohibiting display case not at all. the of a creche at this it bears Christianity impose practice (except the repeating, does not a burden on officially approved the sect seeks to be an extent that some Christian display religion), permitting and therefore is not “accommodation” the conventional sense. religious holiday symbol has both Christmas, that, like secular dimensions.60 next to a Christmas here stands Moreover, the menorah challenge liberty. saluting sign has been While no tree and sign, pres- and the their of the tree made here to determining obviously the effect of the me- relevant ence placing necessary display. menorah result norah’s holiday an “overall to create next to a tree is Christmas represents setting” and Chanukah—two both Christmas holidays, Lynch, S., not one. See (O’Connor, concurring). J., displays symbols Pittsburgh of both
The mere fact that the constitutional in- not end Christmas and Chanukah does quiry. city If and Chanukah as celebrates both Christmas religious holidays, Clause. then it the Establishment violates Kennedy asserting that the de is clever but mistaken 60 Justice menorah, 582-587, scription purports turn the supra, Court Post, Any inquiry concerning theology into a “national board.” at 678. government’s religious object of a to determine whether that use use requires religious preference in an a review of the results unconstitutional object inquiry if concerning is con factual record —even Kennedy’s “proselytization” Surely, pursuant test. ducted to Justice Kennedy keep igno mean that this Court must itself cannot ques symbol’s use and decide constitutional rance of conventional prescrip only the case was filed. This knowing tion what it knew before according to the ignorance obviously would bias this Court tion of *35 Members, a condition much more intoler backgrounds and cultural of its familiar any from the Court’s efforts to become able than which results with the relevant facts. are
Moreover, concerning Chanukah and the menorah the relevant facts record, by to the extensive citation largely in the as indicated to be found event, any of this Court Appendix, Members supra, at 582-585. secondary their Estab- sources aid of referring not hesitated in to have 709-712, S., see, 721-724 analysis, g., Lynch, 465 U. e. lishment Clause government J., question “whether a dissenting), because the (Brennan, part legal “in religion” large is activity an endorsement of communicates interpretation judicial of social on the basis of question to be answered (O’CONNOR,J., concurring). facts,” id., at 693-694 The Christianity simultaneous endorsement ofJudaism and is constitutionally no less infirm than the endorsement of Chris- tianity alone.61
Conversely,
city
if the
celebrates both Christmas and Cha-
holidays,
nukah as
beyond
secular
then its conduct is
reach
government
of the Establishment Clause. Because
may
holiday,62
celebrate Christmas as a secular
it followsthat
government may
acknowledge
also
Chanukah
aas
secular
holiday. Simply put, it would be a form of discrimination
against
Pittsburgh
Jews to allow
to celebrate Christmas as a
simultaneously
cultural
disallowing
city’s
tradition while
acknowledgment
contemporaneous
of Chanukah as a
cultural
tradition.63
display
of a menorah next to a
government
creche on
property
might prove to be invalid. Cf. Greater
Chapter
Houston
American
Eckels,
(SD
Civil Liberties
Supp.
Union v.
589 F.
1984), appeal
Tex.
dism’d,
(CA5),
(1985) (war
755 F.
denied,
2d 426
cert.
in original). 63Thus, examples, to take the most obvious of if permissible it were for city display City-County in front Building a banner exclaiming Christmas,” “Merry permissible then it would also be city in the proclaiming “Happy same location a banner Chanukah.” Brennan, however, suggest seems to practice that even this problematic holidays because associated with other traditions post, would be excluded. See 644. But when the engages Christmas, in the any secular celebration of without reference to holi- days non-Christians, celebrated other traditions are yet excluded —and *36 616 question
Accordingly, for Establishment the relevant display tree, purposes of the combined is whether Clause endorsing sign, of both has the effect the menorah and recognizes simply that faiths, or rather and Jewish Christian part the same winter- are Chanukah both Christmas holiday in our so- a secular status has attained season, which display, particular interpretations ciety. this the two Of plausible also in line with and is far more the latter seems Lynch.64 is not itself a reli menorah, unlike the tree,
The Christmas Although gious symbol. once carried reli trees Christmas they typify today gious secular celebration connotations, Illi Liberties Union American See Civil of Christmas. (CA7), denied, cert. 265, 271 Charles, 794 F. 2d nois v. St. (1986); Law American Constitutional Tribe, 961 L. 479 U. S. 1988) (Tribe).65 (2d place Americans Numerous ed. celebration of approved government’s secular BRENNAN has 62, supra. n. Christmas. See tree, display of the distinctly view the combined implausible to It is During the endorsing the faith alone. sign, the menorah as Jewish 387,000, ap which population of litigation, Pittsburgh had a time of this Commerce, 45,000 Dept, of Bureau of Cen U. S. proximately were Jews. (108th 1988);App. 247. ed. sus, the United States Abstract of Statistical symbol symbol next to a city Pittsburgh places a of Chanukah a like When endorsement of Christian Christmas, may be a simultaneous the result display). But upon the circumstances of ity (depending and Judaism pre-existing representation of Chanukah to its city’s addition of visual reasonably understood as an endorsement display be cannot Christmas Thus, Christmas- unless combined yet not Christian —belief. Jewish — of Christian fairly as a double endorsement display can be seen Chanukah holidays celebrating without faiths, as both it must be viewed and Jewish endorsing faith. either Pittsburgh’s combined Christmas-Chanukah The conclusion mean, however, does not endorsing alone interpreted as Judaism be cannot matter, city Pittsburgh like general as a implausible, might well have display of a menorah alone minority faith. The endorse that effect. tree, along with (describing the Christmas 141-142 also Barnett See Claus, which have be- aspects those of Christmas and Santa gift giving *37 subscribing in trees their homes without to Chris-
Christmas religious city’s beliefs, tian and when the tree stands alone in City-County Building, front of the it is not considered an en- Indeed, faith. a dorsement of Christian 40-foot Christmas objects tree was one of the that validated the in creche widely Lynch. accepted the The view of Christmas tree as preeminent symbol holiday the secular of the Christmas sea- emphasize component the son serves to sage secular of the mes- accompanying other elements of an communicated holiday including display, the menorah.66 Chanukah clearly predominant tree, moreover, the element city’s display. occupies posi- the The 45-foot tree the central archway in tion beneath the middle front of the Grant Street City-County Building; entrance to the the 18-footmenorah is positioned configuration, to one side. Given this it is much interpret meaning more sensible to of the menorah light In tree, rather than vice versa. the shadow of readily simply tree, the menorah is understood as a rec- ognition only way that Christmas is not the traditional of ob- winter-holiday serving circumstances, season. these then, the combination of the tree and the menorah communi- cates, not simultaneous endorsement of both the Christian intimately immigrants come identified with life” that “so national feel the culture). adopt part need to these customs in order to be a of American Of course, capable taking religious significance the tree is on a if it is deco- Gilbert, symbols. religious rated with Cf. The Season of Will Good (1958) Tension, Inter-religious (considering Reconstructionist 13 tree, Bethlehem, without the Christmas Star of as one of “the cultural celebration”). aspects of the Christmas represents 66 Althoughthe Christmas tree the secular celebration of (a Christmas, very holiday religious its association with Christmas with di mensions) might representing makes it conceivable that the tree be seen as displayed object Christian when next to an associated with Jewish I reason, with Justice Brennan and religion. agree For this Stevens that one must ask whether the tree and the menorah together beliefs of endorse Christians and Jews. For the reasons text, however, city’s I stated conclude the overall does not impermissible have this effect. instead, a secular celebration Christ- faiths, but
and Jewish acknowledgment coupled of Chanukah as a con- mas with temporaneous tradition. alternative city symbol
Although mean- has used representation ing not a Chanukah, this is case its city that are less reli- has reasonable alternatives which predominantly imagine gious It is difficult to nature. city place symbol could next to of Chanukah that the secular *38 An would look out of tree. 18-foot dreidel its Christmas mocking interpreted by place might as the cele- be some The of a more secular alterna- of Chanukah. absence bration city’s symbol part in which the ac- is itself of the context tive likely determining judged effect of in the its use tions must be message government’s secular of the menorah. Where the only conveyed by symbols, one of which carries can be two reasonably might religious meaning, infer an observer from religious government to use the the fact that the has chosen promote religious symbol that the means to Abington Schempp, 374 S., faith. District v. U. School See (Establishment concurring) J., at 295 Clause for- (Brennan, religious to serve secular ends when secu- bids use of means suffice); But where, here, lar see also Tribe 1285.67 as means of endorsement made, no such has been this inference choice present.68 not 67Contrary and Justice Ken to the assertions of Justice O’ConnoR nedy, government’s failure to suggested I have not here that the use an necessarily alternative results an Establishment Clause available secular Rather, say availability unavailability or violation. suffices deciding an to be considered in secular alternatives is obvious factor religious symbol amounts to an government’s the use of endorse whether religious faith. ment of contrast, Pawtucket to include a Lynch, there was no need for convey message a secular about Christmas. See creche order Thus, S., J., dissenting). unless the addition at 726-727 (Blackmun, U. recognized an display was endorsement of the creche to the Pawtucket faith, “relegated was to the role of a neutral the creche there of Christian mayor’s sign possibility The further diminishes interpreted tree and the will be menorah as a dual endorse- Christianity sign ment and Judaism. states that dur- ing holiday city liberty. season salutes Moreover, sign upon light, draws the theme of commonto both Cha- festivals, nukah Christmas as winter and links that legacy theme with freedom, this Nation’s which an allows holiday way American to celebrate season whatever he religiously sign wishes, otherwise. no While can disclaim message overwhelming an of endorsement, see Stone v. Gra- “explanatory plaque” may an ham, S.,U. confirm particular government’s contexts association with symbol religious represent government’s spon- not does sorship Lynch, S., beliefs. See at 707 dissenting). mayor’s sign J., Here, the serves (Brennan, already to confirm what the context reveals: that the the menorah is not endorsement faith but simply recognition diversity. of cultural *39 season,” id., harbinger holiday serving of the no function differ performed by that symbols ent from the secular of Christmas. But the Pittsburgh same cannot be said addition of of the the menorah to the dis play. The Pittsburgh display inclusion of the menorah here the broadens only holiday to refer not to Christmas but also to Chanukah —a different belonging to a It different tradition. does not demean Jewish faith or the religious significance say of the menorah to the menorah this con (with represents holiday text the of Chanukah religious as a whole and sec aspects), just rep ular as the tree in this context Christmas can be said to (with holiday religious resent the of Christmas as a its whole and secular aspects).
Thus, religious the menorah retains its significance display, even in this city but it not the religious does follow that has endorsed belief over tree, nonbelief. displaying city the menorah next to the the has demon- preference holiday strated no for the celebration of the season. conclusion, however, This would be city untenable had the substituted a city creche its if for Christmas tree or the had failed to substitute for the secular, alternative, representation menorah more of Chanukah. “sufficiently likely” Given all these considerations, is not Pittsburgh perceive residents the will combined dis play sign, tree, of the the the menorah as an “endorse “disapproval ment” or of their ... individual Rapids, choices.” Grand S., 473U. at 390. anWhile ad judication display’s effect must take into account perspective of one who is neither nor Jewish, Christian religions, as well as of those who adhere either these constitutionality judged ibid., the of its effect must be also according to the standard aof “reasonable observer,” see Washington Dept. Witters v. Blind, Services 474 U. S. for (1986) concurring part 481, 493 J., and concur (O’Connor, ring judgment); govern (challenged see also Tribe 1296 practices judged perspective ment be should “from ”). against a ‘reasonable non-adherent’ When measured this par standard, the menorah need not be excluded from this display. ticular Pittsburgh Christmas tree alone location does not endorse Christian belief; and, on facts fairly before us, addition of the menorah “cannot be understood to” result the simultaneous endorsement of Lynch, Christian and Jewish faiths. S.,U. at 693 concurring). contrary, purposes J., On the (O’Connor, city’s display of the Establishment Clause, overall must conveying city’s recognition be understood secular celebrating winter-holiday of different traditions for season.69 particular
The conclusion here that, in this context, the display endorsing menorah’s not does have an effect reli- say This is not combined Christmas tree and *40 menorah may is constitutional wherever be located on prop erty. example, school, For public when in display located such might Aguillard, raise additional Cf. Edwards constitutional considerations. v. (Establishment S., applied 583-584 be special Clause must context). sensitivity public-school in the faith gious does not foreclose the that the possibility display of the menorah violate might either the or “purpose” “entan- glement” of the Lemon prong analysis. These issues were not addressed Court of Appeals may be consid- ered by that court on remand.70
VII Lynch Donnelly confirms, and in no way repudiates, longstanding constitutional principle government may not in a engage practice has the effect of promoting endorsing beliefs. The in .display the creche county courthouse has this unconstitutional effect. The dis- play the menorah front of the City-County Building, however, does not have this effect, its given “particular phys- ical setting.” judgment Court of Appeals affirmed part reversed and the part, cases are remanded for further
proceedings.
It is so ordered. 70 addition, nothing opinion this possibility forecloses the that on other display facts menorah impermissible could constitute endorse religion. Indeed, ment of there is some evidence this record that in the past Chabad lit the menorah in City-County front of the Building in a reli gious ceremony that included the recitation of traditional bless ings. App. Respondents, however, See 281. challenge prac did not this tice, there findings it, are no factual Appeals on and the Court of did not deciding display consider it in of a menorah in this location neces sarily 2d, endorses Judaism. See 842 F. at 662.
There is also- suggestion some in the record that Chabad advocates the public display part of menorahs as mission, its own proselytizing but again there have been no relevant findings factual that would enable this Pittsburgh Court to conclude that has particular pros- endorsed Chabad’s elytizing message. course, nothing opinion Of in this forecloses a chal- lenge to a menorah findings. based on such factual *41 O’Connor, with whom
Justice Justice Brennan join concurring part as to Part Stevens II, *42 concurring judgment. in the
I—I government Judicial review of action under the Establish- ment Clause is a delicate task. The Court has avoided draw- ing entirely sweep away government recogni- lines which all acknowledgment tion and in the role of the lives of neutrality our citizens for to do so would exhibit not but hos- tility religion. case-specific Instead the courts have made challenged government examinations of the attempted action and have so to do with the aid of the standards described opinion. in Part III-A of the Court’s
Justice Blackmun Unfortunately, development Ante, at 590-594. even the guidelines always articulable standards and has not resulted agreement among in the Members of this Court on the results today. again in individual cases. And it so is constitutionality displays The of the two at issue in these interpret apply holding cases turns on how we and the in (1984), Lynch Donnelly, in U. S. 668 which we re- jected challenge city an Establishment Clause to the of Paw- tucket’s of a creche in annual inclusion its Christmas holi- day display. Lynch The seasonal reviewed was privately park shopping located in a owned heart of the the Id., creche, at 671. In to the district. addition the dis- play pulling house, included “a Santa Claus reindeer Santa’s sleigh, candy-striped poles, tree, carolers, a Christmas cut- figures representing such as a clown, out characters an ele- teddy lights, phant, [and] bear, hundreds of colored and a large rea[d] banner that ‘SEASONS GREETINGS.’” Ibid. display. city components Setting the the The owned all city up dismantling year, the creche about cost $20 expenses lighting were and nominal incurred creche. Lynch began analysis by stating Court its that Estab- line-drawing: “[N]o call careful lishment Clause cases for per Although Id., se rule can be framed.” at 678. fixed, de- any single willing daring it was not to be confined asking essentially applied test, the Lemon test, the Court pur- challenged has a secular law or conduct “whether principal primary pose, to advance or effect is its whether entangle- religion, an excessive whether it creates inhibit (citing religion.” S., at 679 ment of (1971)). reversing Kurtzman, 403 Lemon v. U. S. 602 inclusion of the decision, which held that the lower court’s holiday display the Establishment violated creche court erred “fo- stressed that the lower Clause, Court exclusively cusing atS., on creche.” 465 U. 680. almost rejected city’s doing, that its reasons for claim “In so essentially including as its are the same reasons the creche sponsoring display as a Ibid. When viewed whole.” *43 Holiday season,” in the the Christmas the Court “context of suggest that in- reasoned, insufficient evidence to there was holiday part display was an ef- of the of the clusion creche message. particular religious Ibid. The to advocate a fort purpose for in- that Pawtucket had a secular Court concluded holiday display, namely, cluding the in its Christmas creche Holiday.” depict origins Id., 681. of that “to in that inclusion of the creche The Court also concluded primary advancing religion. display effect of did not have “[Djisplay or en- of the creche is no more advancement religion Congressional and Executive of than the dorsement origins Holiday recognition of the itself as ‘Christ’s literally of the exhibition of hundreds Mass,’ governmentally supported paintings Id., in museums.” Finally, entanglement found no excessive be- 683. the Court religion government. There was “no evidence of tween concerning the content or de- with church authorities contact purchase prior sign to or since Pawtucket’s of of the exhibit Id., at 684. the creche.” majority opinion Lynch joined because, in as I
I
read
analysis
opinion,
set forth in
it was consistent with the
that
“[ejvery gov-
my separate
concurrence, which stressed
practice
judged
ernment
unique
must be
in its
circumstances
to determine whether it constitutes an endorsement or dis-
approval
added).
religion.”
(emphasis
Id.,
of
at In-
by referring repeatedly
deed,
to “inclusion of the
creche”
larger holiday display,
id., at 671, 680-682, 686, the
Lynch majority recognized that the creche had to be viewed
light
part.
of the total
of which it was a
Moreover,
joined
I
Lynch
concerning
Court’s discussion in Part II of
government acknowledgments
religion
in American life be-
my
acknowledgments
legislative
cause,
view,
such as the
prayers upheld
(1983),
in Marsh v. Chambers,
secular expressing occasions, encouraging recognition confidence in the future, and worthy appreciation society.” what Lynch, (concurring opinion). they U. S., at 693 Because serve such purposes “history secular ubiquity,” and because of their government acknowledgments such are not under- conveying particular religious stood as an endorsement of be- “[government liefs. Ibid. At the same time, is clear that practices purport acknowledge to celebrate or events religious significance subjected judi- must be to careful scrutiny.” Id., cial at 694. my Lynch, suggested concurrence I a clarification concept our Establishment Clause doctrine to reinforce the “prohibits government
that the Establishment Clause from *44 making religion any way per- adherence to a relevant in to a standing political community.” in son’s Id., at 687. The government prohibition violates this if it endorses or dis- approves religion. Id., of at 688. “Endorsement sends a message they to nonadherents that are outsiders, not full political community, accompanying of members and an message they to adherents that insiders, are favored mem- political community.” Disapproval bers of the Ibid. of reli- gion conveys opposite message. my Thus, in view, the Lynch city central in issue was whether the of Pawtucket had Christianity by part displaying a a creche as of endorsed symbols larger the Christmas of traditional secular of exhibit holiday season. city’s display Lynch, a in I of creche
In concluded holiday private park larger in in the commercial exhibit a its conveying purpose nor the effect of a had neither district Christianity message or of endorsement of dis- religions. purpose including approval of other The of larger display public creche in the was to celebrate the holi- day through symbols, promote its traditional not to the reli- my gious Id., inNor, view, content of the creche. at 691. display along sym- of the creche with secular did Pawtucket’s objectively convey holiday message of the Christmas bols Christianity. Id., at 692. endorsement opinion in For the reasons stated Part IV of the Court’s agree displayed cases, I that the creche on the Grand these Allegheny County Courthouse, of the the seat of Staircase county government,
conveys message to nonadherents of Christianity they political are not full of the members community, corresponding message and a to Christians that community. they political favored members are Lynch, displayed the creche in contrast to which was park city’s private part in the commercial district as display symbols a broader traditional secular of the holi- day county season, this creche stands alone in the court- symbols public The house. areas of government buildings special “mak[ing] runs a core risk of reality public perception, relevant, to status (concur- political community.” Lynch, supra, in at 692 ring opinion). Congress See also American Jewish Chi- (CA7 1987)(“Because cago, City 827 F. 2d Hall is so plainly government ownership every under control, dis- activity building implicitly play marked with the stamp government approval. presence nativity aof lobby, inevitably in the therefore, scene creates a clear and impression strong government tacitly that the local endorses
627 Christianity”). correctly place- The Court concludes that symbol religious holiday ment of the central of the Christmas County Allegheny season at the Courthouse has the uncon- conveying government stitutional a effect of endorsement of Christianity.
II separate opinion, In his asserts that Kennedy in the endorsement test “is flawed its fundamentals and un- practice.” (opinion concurring Post, in at 669 in workable judgment part dissenting my part). view, nei- persuasive. ther criticism is As a theoretical the en- matter, captures dorsement test the essential command of the Estab- namely, government that Clause, lishment person’s religious must not make a standing
beliefs relevant to his or her political community conveying message “that particular religious preferred.” belief is favored or Wal- (1985) lace 472 70 Jaffree, 38, J., v. U. S. con- (O’Connor, curring judgment); Rapids Dist. Ball, School Grand (1985). See also Beschle, S. Conserva- Religion Neutrality, Clauses, tive as Liberal: The Liberal Approach and the of Justice O’Connor, Notre Dame L. (1987); Developments Religion Note, Rev. the Law— (1987)(Develop- State, and the 100Harv. L. Rev. Law). pluralistic society. ments in live in a We cit- Our religious izens come from diverse traditions or adhere to no particular religious government all. If beliefs at is to neu- be religion, showing tral in matters of rather than either favorit- disapproval personal ism or towards citizens based on their government choices, cannot endorse the practices sending of some citizens without and beliefs clear they message to nonadherents are outsiders or less than political community. full members of the prohibits only An Establishment Clause standard that “co- government practices proselytiza- or overt efforts at ercive” post, tion, 659-662, 664-665, but fails to take account theof ways numerous more subtle can show favor- *46 628
itism to particular beliefs or
a
convey message of disapproval
to
would
others,
not, my view, adequately protect the reli
gious liberty
respect
religious diversity of the mem
bers of our pluralistic political community. Thus, this Court
has never relied on coercion alone
touchstone of Estab
e.
lishment Clause analysis.
g., Committee
Public
See,
Education & Religious
Liberty Nyquist,
786 proof of coercion might provide a basis for a claim under the Free Exercise Clause, it not a [is] element necessary claim any under the Establishment Clause”); Engel Vitale, (1962). v. 370 U. S. To require showing coercion, even indirect coercion, as an essential element of an Establishment Clause violation would make the Free Exercise Clause a redundancy. See Abing ton School District (1963) Schempp, 374 U. S. 203, 223 (“The distinction between the two clauses is apparent vi —a olation of the Free Exercise is predicated Clause on coercion while the Establishment Clause violation need not be so at tended”). See also Laycock, “Nonpreferential” Aid to Reli A .gion: False Claim About Original Intent, 27 Wm. & Mary (1986) (“If L. Rev. coercion is also an element of the establishment clause, establishment adds to free nothing ex ercise”). Moreover, as even Kennedy recognizes, any Establishment Clause test limited to “direct coercion” would fail clearly to account for forms of “[s]ymbolic recogni tion or accommodation of faith” that may violate the Establishment Clause. Post, at 661.
I continue to believe that the endorsement test asks the right about question governmental practices on challenged Establishment Clause grounds, including challenged prac- tices involving display of religious symbols. Moreover, commentators the scholarly literature have found merit See, e. g., Beschle, approach. supra, 174; Comment, Lemon Reconstituted: Justice O’Connor’s Proposed Modifica- tions of the Lemon Test for Establishment Clause Violations, 1986 B. Y. L.U. Rev. 465; Marshall, “We It Know When We
See It”: The
Court and
Supreme
Establishment,
S.
L.
Cal.
(1986);
Rev. 495
in the
Developments
Law 1647.
I
re
also
main convinced that the endorsement
test is
con
capable of
Indeed,
sistent
application.
is notable that
the three
Courts of
that have
Appeals
considered
dis
challenges
of a creche
play
standing
city
alone at
hall have each con
cluded, relying
on endorsement
part
analysis,
such
practice sends
nonadherents of
message
Christianity
are
they
outsiders
See 842 F.
political community.
2d
*47
Congress
Chicago,
(CA3
American Jewish
1988);
655
v.
827
Birmingham,
(CA7
1987); ACLU F. 2d
127-128
791
(CA6),
F. 2d
1566-1567
cert.
479
denied,
U.
939
S.
County
(1986). See also Friedman v. Board
Commis
County,
sioners Bernalillo
(CA10
longstanding practices opening legisla- existence of such as legislative prayers opening tive sessions with or Court ses- sions with “God save the United States and this honorable Court,” as well their nonsectarian nature, that leads me to particular practices, despite the conclusion that those their convey message roots, do not of endorsement of particular (con- Lynch, supra, beliefs. See at 693 curring opinion);Developments in the Law 1652-1654. Sim- ilarly, Thanksgiving public holiday, the celebration of as a despite religious origins, generally its is now understood as a patriotic particular religious celebration of values rather than question analysis, beliefs. The under endorsement in short, longstand- is whether reasonable observer would view such ing practices disapproval particular religious as a of his or her light they purpose choices, of the fact that serve a secular largely rather than a sectarian one and have lost their re- ligious significance over time. See L. Tribe, American (2d 1988). Although Constitutional Law 1294-1296 ed. requires endorsement test careful and often difficult line- drawing highly specific, and is context no alternative test has suggested captures been the essential mandate of the Establishment Clause as well as the does, endorsement test application and warrants continued and refinement. Contrary to neither assertions, the en- Kennedy’s application dorsement test nor its in these cases reflects “an unjustified hostility religion.” toward Post, at 655. See also post, 667-678. Instead, the endorsement standard recognizes religious liberty precious so to the citizens up country protected, impeded, who make our diverse not government endorsing religion favoring par- when avoids Clearly, ticular beliefs over others. can acknowledge society the role of in our in numerous ways *49 Lynch, that do not amount to an endorsement. See supra, (concurring opinion). gov- at 693 Moreover, the religion by lifting government- ernment can accommodate imposed religion. on burdens See Wallace v. Jaffree, 472 (opinion concurring judgment). S.,U. at 83-84 Indeed, may par Exercise the Free Clause that it mandate do so involving lifting ticular cases. cases of religion, burdens on the free exercise of a reasonable ob underlying server would take into account the values assessing challenged Free Exercise Clause whether the practice conveyed message a Id,., of endorsement. at 83. By “build[ing] on the concerns at the core of nonestablish recognizing] ment doctrine and of the role accommodations furthering “provides exercise,” free the endorsement test capable application a standard of consistent and avoids the against criticism levelled the Lemon test.” Rostain, Permis Religion: Reconsidering sible of Accommodations the New (1987). Statute, York Get 96 Yale J. 1147, 1159-1160 L. today, lifting cases before the Court however, do not involve governmental a religion. By burden on the free exercise of repeatedly using “acknowledgment” religion the terms of religion interchangeably, post, “accommodation”of however, 662-664, at Kennedy obscures the fact Justice displays placed at issue in these cases were not city government-imposed hall in order to remove a burden on religion. the free exercise Christians remain free to dis play their creches at their homes and Ante, churches. Allegheny County placed 601, n. 51. has neither nor re governmental moved burden on the free exercise of rather, but for the reasons stated Part IV the Court’s opinion, conveyed message governmental has endorse ment of Christian beliefs. This the Establishment Clause permit. not does
Ill For reasons which differ somewhat from those set forth in opinion, Part VI of Justice I also concludethat Blackmun’s city Pittsburgh’s holiday display combined of a Chanu- sign liberty saluting kah menorah, a Christmas tree, and conveying does not have the gion. effect endorsement reli- agree I ante, with at 616-617, Blackmun, *50 origins, regarded that tree, the Christmas whatever its is not today symbol. religious Although public as a Christmas is a holiday religious aspects, that has both and secular widely symbol Christmas tree is viewed as a secular of the holiday, depicts holiday’s to the contrast creche which religious displayed A dimensions. Christmas tree in front of city my fairly hall, view, cannot be understood as con- veying government Christianity. Although endorsement of opinion acknowledges that a Christ- Justice Blackmun’s conveys mas tree alone no endorsement of Christian beliefs, question posed by Pittsburgh’s it formulates the combined display of the tree and the menorah as whether the endorsing “has the effect of both Christian and faiths, Jewish recognizes simply or rather that both Christmas and Chanu- part winter-holiday kah are season, of the same which has at- society.” (empha- Ante, tained a secular status in our at 616 added). sis question disregards
That of the formulation fact that predominantly symbol the Christmas tree is a and, secular significantly, religious more obscures the nature of the meno- holiday opinion rah and the of Chanukah. The is correct to recognize religious holiday of Chanukah has histori- cal and cultural as well as dimensions, and may aspects” holiday. there be certain “secular to the But that is not to conclude, however, as Justice Blackmun holiday” do, seems to that Chanukah has become “secular society. holiday Ante, our at 615. The Easter celebrated may accompanied by be Christians certain “secular as- pects” egg such Easter bunnies and Easter hunts; but it is religious holiday. Similarly, nevertheless a Chanukah is a religious holiday strong components particu- historical larly important people. Jewish Moreover, the meno- religious symbol object rah is the central and ritual holiday. Under view, how- Blackmun’s relegated ever, the menorah “has been to the role of a neutral harbinger holiday Lynch, S., season,” at 727 any religious dissenting), almost devoid J., (Blackmun, question my for Estab- significance. view, the relevant Pittsburgh’s city purposes is whether lishment Clause *51 religious symbol religious of a display the menorah, of the saluting sign lib- holiday, a tree and a next to Christmas message of Judaism erty endorsement of a sends pluralism message freedom to and of a it sends or whether beliefs. own choose one’s by display conveyed message characterizing this as the
In acknowledgment a secular endorsement” or “double either a “[i]t holiday opinion states season, the of the winter display of the distinctly implausible the combined to view endorsing faith sign, Jewish menorah as and the the tree, statement, however, That Ante, 616, n. 64. alone.” city implausible suggest the to be to that would seems citizenry. minority by the a of a faith adhered to endorse pur- governmental plausibility putative Regardless the of a of govern- important inquiry pose, the is whether the here more symbol minority display could faith’s of a mental message convey reasonably of en- a to be understood ever city standing alone faith. A menorah of that dorsement just message may nonadherents, as a to well send such hall County Allegheny standing alone at the creche this case the message governmental of endorsement a of sends Courthouse Christianity, authorizing county’s purpose the whatever question may here is display the Thus, have been. message conveys holiday display Pittsburgh’s of a whether only reli- the menorah is Judaism, when of endorsement opinion display symbol when the gious and in the combined reasonably acknowledges be understood that the tree cannot Christianity. convey need not One of an endorsement holiday strain a “secular” characterize Chanukah ante, at dimension, argue a menorah has “secular” that the Pittsburgh’s city of conclude in order to n. message convey endorsement display a does not combined religion general. or of of Judaism the lighted which included its setting up holiday display, stressed the menorah, Pittsburgh tree city and and exhibit liberty pluralism by accompanying theme of “ this holi- following message: ‘During with a sign bearing Let these season, liberty. salutes day city Pittsburgh remind us that we are the of the flame keepers festive lights Ante, of freedom.’” at 582. This and our liberty legacy intended to its own dis- city convey indicates sign and freedom. By accompany- tinctive message pluralism a tree —a secular symbol its of Christmas ing liberty, Christmas season —with salute to holiday from a also cele- symbol holiday Jewish adding the same time of I conclude that the year, brated at roughly did not endorse Judaism or but rather city general, freedom of belief conveyed message pluralism during *52 season. the and indeed sec- holiday “Although religious tarian of the menorah “is not neutralized by significance” S., at 692 this setting,” Lynch, (concurring opinion), U. what viewers setting “changes may fairly particular physical a mu- understand to be the purpose display typical —as seum not content of setting, though neutralizing religious a of endorsement of negates any message religious painting, Ibid. that content.” conveyed by
The combined message pluralism city’s is not a that endorses over holiday display message may Just as not favor nonreligion. government particular favor others, beliefs over not reli- religious “government may Bullock, disbelief.” Texas Inc. v. Monthly, belief over gious (1989) in J., 271, concurring judg- U. S. (Blackmun, id., Jaffree, Wallace ment); S., 52-54; at at 70 Here, in J., by display- concurring judgment). (O’Connor, season holiday a secular the Christmas rather ing symbol one, than a city acknowledged public holiday religious alike, celebrated both citizens religious nonreligious A beliefs. reason- and it did so without Christian endorsing would, view, in the com- my appreciate able observer acknowledge display is an effort to the cultural diver- bined convey sity country tolerance of different of our and to by recogniz- or nonbelief in matters of belief choices holiday ing celebrated in diverse that the winter season is holiday ways by context, In in the this short, our citizens. physical setting conveys display particular in combined its Christianity disap- nor an of Judaism or neither proval endorsement im- beliefs, thus does not have the of alternative reality “mak[ing] religion permissible relevant, effect of political community.” public perception, to status opinion). Lynch, supra, (concurring at 692 city My depend whether or conclusion does not on not symbol” ante, Chanukah, “a more secular alternative had clearly just Lynch did at as the Court’s decision not conveyed city turn on Pawtucket could have whether the holiday by using season its tribute to the Christmas “less symbol display religious” alternative the creche its Lynch, supra, holiday symbols. n. 7 traditional See city’s objectives argues could (“Justice Brennan including have been achieved the creche the dis- without play, [465 not, True or that is irrelevant. S.,]U. at 699. question is whether the of the creche violates the Clause”). my view, Establishment Blackmun’s ante, new inference of endorsement rule, 618, that an every symbol arises time uses meaning if a “more secular alternative” is available is analysis, too blunt instrument for Establishment Clause depends sensitivity circum- which on to the context and *53 presented by opinionappears Indeed, stances each case. the sensitivity by recognize importance the contextual to of this very creating exception in the case an- to its new rule opinion purely nouncing acknowledges it: the that “a secular namely, symbol” a available, of Chanukah is dreidel or four- symbol top, rejects a sided but the use of such because interpreted by mocking “might be some celebration recognition Ibid. that the Chanukah.” This more may, depending convey on a circumstances, alternative likely implicate message that is least Establishment Clause example is an concerns excellent of the need to focus on the specific practice question particular physical setting in its determining and context whether has con- veyed attempted convey message or or a particular religious preferred. is or belief favored city Pittsburgh’s I sum, conclude that the combined holiday display purpose had nor neither the effect of en- religion, dorsing Allegheny County’s display but that creche join Accordingly, had an effect. I I, II, such Parts III-A, opinion and VII of the IV, V, Court’s and concur judgment. Brennan, whom Justice Marshall and join, concurring part dissenting
Justice Stevens part. previously explained length my
I have at some views relationship on the between the Establishment Clause and government-sponsored holiday. celebrations of Christmas (dis- (1984) Donnelly, Lynch See 465 U. S. 694-726 opinion). senting display I continue to believe of an object specifically [or other] that “retains a Christian reli- gious meaning,” incompatible separa- id., with the tion of church and state our I demanded Constitution. agree Allegheny County’s therefore with the Court that dis- play county signals of a creche at the courthouse an endorse- ment the Christian faith in violation of the Establishment join opin- Clause, III-A, Parts V of IV, and the Court’s agree, city’s display I however, ion. cannot that the of a 45- tree and an foot Christmas 18-footChanukah menorah at the building housing mayor’s entrance to the officeshows no Christianity, Judaism, favoritism towards Indeed, both. thought display I have should answer as to the first supplied the answer to second.
According Court, to the the creche sends mes- Christianity endorsing sage because the creche itself bears *54 religious meaning, angel display because an carries a declaring “Glory highest!,” banner to God the and because surrounding highlight the floral decorations the creche display rather than secularize it. The of a Christmas tree and Chanukah menorah, contrast, is said to show no en- particular religion gen- dorsement of a faith or or of faiths, symbol eral, because the Christmas tree ais secular which brings out the secular Ante, elements of the menorah. at though And, 616-617. concludes, even Justice Blackmun religious aspects, the menorah has its reveals no en- symbol dorsement of because no other could have represent aspects holiday been used the secular mocking Chanukah without its celebration. Ante, 618. endorsing religion, display merely Rather than therefore, only way demonstrates that “Christmas is not the traditional observing winter-holiday season,” confirms our diversity.” “cultural Ante, 619.
Thus, the decision as to the menorah rests on three premises: symbol; the Christmas tree is a secular Chanukah holiday symbolized by is a dimensions, with secular the me- government may promote pluralism by spon- norah; and the soring condoning displays having strong religious associa- property. tions on its of these is None sound.
f-H step The first toward conclusion is Blackmun’s origins, despite religious that, claim its the Christmas symbol. explains: tree is a secular He “The unlike the tree, menorah, Christmas is not itself religious symbol. Although Christmas trees once car- today they typify ried connotations, the secular place celebration of Christmas. Numerous Americans subscribing in their Christmas trees homes without city’s beliefs, Christian and when the tree City-County Building, stands alone front of it is not considered an endorsement of Christian faith. In- *55 objects
deed, 40-foot Christmas tree was one of the Lynch. widely that validated the creche in The ac- cepted preeminent view of the Christmas tree the sec- symbol holiday ular of the Christmas season serves to emphasize component message the secular of the com- holiday accompanying municated other elements of an display, including the at Ante, Chanukah menorah.” (citations omitted). 616-617 and footnotes accepts this view the tree Christmas O’Connor Justice origins, regarded today [it] “whatever its is not as a because, religious symbol. Although public holiday
Christmas is a religious aspects, has both and secular Christmas widely symbol holiday, tree is viewed as a secular of the depicts holiday’s religious contrast to the creche which Ante, dimensions.” at 633. acknowledging religious origins
Thus, while of the tree, Christmas and O’Connor dismiss Justices Blackmun significance. my attempt their In this to take the view, unconvincing. “Christmas” out of the Christmas tree is That controversy, sym- may, the tree without be deemed a secular bol if alone does not mean that it be seen when found will so symbols objects. Indeed, combined with other Justice capable taking that “the is on a re- admits tree Blackmun symbols.” ligious significance if it is decorated with n. 65. Ante, necessarily
The tree secular notion that Christmas is shaky acceptance despite superficial is, indeed, that, so really seriously. does not take it idea, O’Connor conceding standing city While that the “menorah alone at hall message may of endorsement of the faith, well send” Jewish “By accompanying display she nevertheless concludes: its of a symbol holiday tree —a secular of the Christmas Christmas liberty, by adding religious a salute to season—with symbol holiday roughly also from a Jewish celebrated year, city I conclude that the did not endorse same time of general, conveyed religion in but rather a mes Judaism or sage during holiday pluralism and freedom of belief “pluralism” Ante, season.” at 635. But the to which Jus religious pluralism, refers is and the “free tice O’Connor emphasizes dom of belief” she is freedom oí belief.* symbolize tree and the menorah will such pluralism only religion repre and freedom if more than one is only represented, if the scene is sented; Judaism about Ju pluralism. pluralistic message daism, not about Thus, depends possessing stresses on the tree’s Justice O’Connor religious significance. some asserting regardless tree, Christmas of its sur-
roundings, purely symbol, is a secular Justices Blackmun ignore precept they and O’Connor otherwise so enthusi- astically important embrace: that context all is determin- ing message conveyed by particular objects. ante, See (relevant question at 597 (Blackmun, J.) is “whether the *lf religious pluralism it is not display signifies, then I do not “pluralism” know what kind of Perhaps O’Connor has mind. Justice she pluralism means the cultural recognition many that results from dif- holidays, case, however, ferent religious nonreligious. In that the dis- play firecracker, giant symbolic of a menorah next to a of the Fourth of July, equally representative pluralism, would seem to be yet of this I do display pass not sense that this would muster under Justice O’Connor’s If, instead, view. approve pluralistic Justice O’Connor means to message symbolic display may associated with that stand for either the aspects given holiday, secular or of a logi- then this view would cally entail display the conclusion that a Latin cross next to an bunny springtime Easter in the would be valid under the Establishment Clause; however, again, I comport sense that such a conclusion would not possibility, with Justice O’Connor’s views. The final and the one that ante, opinion, seems most consonant with the views in her outlined see at 635, pluralism perceives is that the that Justice in Pittsburgh’s O’Connor display recognition many ways arises from the that there are different ante, holiday season,” celebrate “the winter at 636. But winter is “the holiday Christians, Jews, implicit season” to not message and the autumn, it, rather than pluralism impermissible time for sends an signal only holidays stemming Christianity, from arising not those religions, favorably dispose from other “plural- towards infra, ism.” See at 645. respective of the creche and the menorah, their
‘particular physical settings/ endorsing has the effect of beliefs”) disapproving religious (quoting School Dist. of Rapids (1985)); Ball, Grand v. S. ante, J.) (“‘[EJvery government practice 624 (O’Connor, must be judged unique in its circumstances to determine whether it disapproval religion’”) constitutes an endorsement or (quoting Lynch Donnelly, S.,U. at 694 (O’Connor, J.) (“Establishment concurring)); J., at 636 ante, (O’Connor, analysis depends sensitivity Clause . . . on to the context and presented by case”); ante, circumstances each at 637 (O’Con J.) (emphasizing specificprac “the need to focus on the nor, question particular physical setting tice in text”). in its and con analyzing symbolic
In character of the Christmas tree, both Justices and O’Connor abandon this Blackmun inquiry. doing they go badly astray. contextual so, religious signifi- Positioned as it was, Christmas tree’s cance was bound to come to the fore. Situated next to the acknowledges, which, is “a Blackmun menorah— symbol religious meaning,” ante, and indeed, is religious symbol object “the central and ritual of” Chanukah, J.) ante, at 633 (O’Connor, Christmas tree’s —the *57 by dimension could not be overlooked observers of the dis- play. though may predomi- Even the tree alone be deemed nantly hardly placed secular, it can be so characterized when forthrightly religious symbol. next to such a Consider a poster featuring a David, star of a statue of Buddha, a Christ- mosque, drawing tree, mas and a of Krishna. There can be company, that, no doubt when found such the tree serves unabashedly religious symbol. as an believes that it is the that tree Justice Blackmun changes message of the menorah, rather than the meno- abrupt rah that alters our view of the tree. After the dis- suggestion surrounding missal of the that the flora the creche might religious have diluted the character of the county quick ante, courthouse, at 599, his conclusionthat secularizing the Christmas tree had a effect on the menorah surprising. distinguishing appears, The it characteristic, is the size of the tree. tree, we told, are is much taller— 2'/2 times taller, fact—than the menorah, and is located directly building’s archways, under one of the whereas the positioned [i]n menorah “is to one side . . . the shadow of the Ante, tree.” at 617. sight
As a factual matter, seems to me that the of an 18- eye catching foot menorah would be far more than that of a conventionally rather sized Christmas tree. It also seems to likely symbol singular message me with the more predominate lacking meaning. will over one such clear homogenized message Given that Justice as- Blackmun expect sociates with the Christmas I tree, would that the me- concededly religious norah, with its character, would tend to though dominate And, the tree. shunts Justice Blackmun point opinion, to a footnote at ante, the end of his highly n. it is relevant that the menorah was lit dur- ing religious ceremony complete religious with traditional blessings. comprehend I do not challenge how the failure to separately portion city’s precludes this festivities considering assessing message us from by it in sent display as a openly whole. But see ibid. With such an re- ligious likely introduction, it is most aspects of the menorah would be front and center this display. presume say
I my interpreta- would not, however, significance tion of the tree’s is the one, “correct” or the one City-County shared Building. most visitors to the I do not know how we can decide whether it was the tree that stripped connotations menorah, from the or the religious origins menorah that laid bare the of the tree. interpretations city Both are pre- reasonable of the scene the satisfy sented, and thus both, think, should I Black- *58 requirement judged according that the “be MUn’s the standard of a ‘reasonable Ante, observer.’” at 620. I only is one observer” “reasonable
shudder to think spacing, perspective, particular views on who shares opinion, expressed mak- thus in accent Blackmun’s Justice analysis like ing look more Establishment Clause under the inquiry law. constitutional than an into an exam Art 101 today’s premise decision rests is on which The second holiday, partly for which a secular that is notion Chanukah symbol. surprise It no as a secular the menorah can serve anomaly and societal that has historical and no Chanukah beyond purely religious. range I ven- would roots that holidays begin- major religious have all, if not most, ture that figures, nings enjoy events, and histories studded with strictly religious. practices It does not seem to are not shares this kind of back- that the mere fact that Chanukah me holiday any meaningful ground sense. it a secular makes symbol, ritually religious indisputably used The menorah is significance. deep religious That, that has in a celebration prac- my said. Whatever secular is all that need be view, contempo- holiday in its has taken on of Chanukah tices the point. rary are beside observance very of the menorah of his discussion Indeed, at the outset recognizes display, that the menorah is Blackmun Justice symbol. 613. That should have been Ante, at Lynch, But, as did the Court end of the cáse. JUSTICE holiday “by focusing which on the ‘context’ Blackmun, away explain appeared, [menorah] the clear seeks to import [menorah] at 705 S., . . . .” 465 U. (Bren- opinion, By dissenting). the menorah the end of nan, J., symbol, coequal tree, of with the Christmas has become but Pittsburgh’s winter-holiday Ante, at 620. season.” inherently religious “the symbol, aided and anof secularization opinion, the ef- recalls here abetted Blackmun’s symbol. I Lynch As creche a secular render the fort in symbol suggest, such a does, Court said then: “To *59 merely and different from is ‘traditional’ therefore no Santa’s only house or reindeer is not offensive to those for whom profound significance, insulting has to those creche but who religious personal story that of insist reasons part ‘history’ in no an Christ is sense of nor unavoidable ‘heritage.’” S., element of our national 465 U. at 711-712. rightly As Justice observes, O’Connor Justice Black- religious mun “obscures the nature of the menorah and the holiday of Chanukah.” at 633. Ante, accept
I cannot, short, the effort to transform em- religious “symbol blem of faith into the innocuous for a holi- day religious that . . . has both and secular dimensions.” J.). Ante, at 614 (Blackmun,
HHI7H acceptance city m his of the s mes- Blackmun, Justice sage “diversity,” ante, 619, and, so, of even more approval “message pluralism in her of the and O’Connor, appear to beliefs,” freedom choose one’s own ante, 634, to displays believe that, concerned, where seasonal are more is display might constitutionally prob- better. Whereas a be holiday just religion, if it lematic problems vaporize showcased the one those religion as soon is in- as more than one principle I know cluded. of no under the Establishment permits govern- Clause, however, that us to conclude promotion religion acceptable long mental gion is so as one reli- contrary, interpreted is not favored. We have, on require neutrality, just among religions, to Clause not religion nonreligion. g., but between See, e. Everson v. Ewing, (1947); Board Education Wallace S. (1985). 472 U. S. 52-54 Jaffree, theory Nor do I discern the under which the permitted appropriate particular holidays ob- jects celebrating “pluralism.” message to its own use in sign announcing Liberty” religious, a “Salute to is not patriotic; government’s promote but use of its undoubtedly own cause is offensive to those whose up beliefs are not bound with their attitude toward the Nation. acceptance message religious plural-
The uncritical of a ignores message may ism also the extent to which even that *60 Many religious offend. faiths are hostile to other, each and participate indeed, refuse even to in ecumenical services de- signed very pluralism to demonstrate the Justices Black- lump objects mun and O’Connor extol. To the ritual and holidays religions together regard without to their atti- religions tudes toward inclusiveness, such or to decide which possibility should be excluded because of the of offense, is not benign pluralism: or beneficent celebration of it is instead precluded by an interference in matters the Estab- lishment Clause. government-sponsored display along- of the menorah
side a Christmas tree also works a distortion of the Jewish acknowledges, calendar. As Justice Blackmun proximity [may] accoun[t] “the of Christmas for the social prominence country.” Chanukah this Ante, 586. It proximity undoubtedly is the of Christmas that accounts for city’s participate decision to in the celebration of Chanu- significant holidays kah, rather than the far'more Jewish Kippur. Contrary impres- Rosh Hashanah and Yom to the city sion the and Justices and O’Connor seem Blackmun emphasis winter-holiday create, with their on “the sea- holiday son,” December is not the season for Judaism. city’s alongside Thus, erection the Christmas tree of the symbol relatively religious holiday, of a minor Jewish far conveying city’s recognition from “the secular of different celebrating winter-holiday traditions for season,” ante, at J.), message pluralism or “a and freedom (Blackmun, J.), belief,” ante, at 635 (O’Connor, has the effect of promoting holiday a Christianized version of Judaism. The they appear willing accept exclusively calendar revolves holiday. religions around Christian And those that have Thanksgiving holiday during period and at all between no Day in a second-class man- benefit, New Year’s will not even “liberty” city’s once-a-year and “free- tribute to ner, from “pluralism” as I understand it. of belief.” This is not dom Brennan and with whom Justice Stevens, Justice concurring part dissenting join, Marshall part. religions recognition one but two dis-
Governmental of not tinguishes prior these cases from our Establishment Clause appropriate to reexamine the text is, therefore, cases. It impact this context of the to determine its on Clause novel situation. at the
Relations between church and state end of 1780’s quite categories. European fell into two different several religion, Eng- countries, one national such as the Church of land in Great was established. The established Britain, by typically supported revenues, church tax laws con- was *61 ferring privileges only upon members, and sometimes vio- persecution although In contrast, lent of nonadherents. sev- support eral American Colonies had assessed taxes to one newly subsidized a faith, chosen none of the United States religion. repealed single States had establishment Some replaced single altogether, had establish- laws while others nondiscriminatory support providing ments with laws religion.1 more than one in, g., e. J. Swom- history is discussed establishments (1987) Liberty (Swomley). See
ley, Religious and the Secular State 24-41 (1986) (Levy). Levy, generally L. The Establishment Clause One histo passage of the First Amend rian describes the situation at the time ment as follows: church, single in England.
“In of a America there was no establishment practices. adopted any Four states had never establishment Three had during remaining their establishments the Revolution. The six abolished Connecticut, Massachusetts, Hampshire, Maryland, New South states — Carolina, ‘multiple’ Georgia changed comprehensive to or and establish- — is, provided all in each That aid was churches state on non- ments. basis, preferential except that the establishment was limited to churches of backdrop against Madison, this historical that James It is Representative Virginia, then a from rose to the floor of the Congress proposed 8, 1789, First on June a number of including following: Constitution, amendments to the rights abridged none on account of “The civil shall be worship, any nor national reli- belief or shall gion equal rights nor shall full and established, be any any pretext, in- manner, conscience be or on (1789) fringed.” Cong. (emphasis 1 Annals of added). produced
Congressional reformulations of debate several language.2 suggested italicized One Member the words “Congress touching religion,'” at 731 id., shall make no laws added), “Congress (emphasis shall make no soon amended to added). establishing religion,” (emphasis id., at 766 law passage Reli- alteration, After further this became one of the gion in 1791, of the First Amendment. Ratified Clauses respecting they “Congress shall make no law state religion, prohibiting the free exercise establishment of added). (emphasis Arndt. 1 thereof,” Const., U. S. By Establishment its terms the initial draft of the Clause prohibited only established church have the national would England; multiple prevailed in such as establishments, permitted. But even States, in six would have been existed religion in three states and to those of the Christian the Protestant no Catholics in the first in the other three states. Since there were almost state, states, very any meant that the multi- group few Jews this enough practices every religious group included ple establishment nonpreferential orga- to form a church. It was this assistance members *62 1791, religion’ in and it churches that constituted ‘establishment nized adopt.” Congress the amendment forbade to C. practice this was (3d 1977). Pritchett, The American Constitution 401 ed. Levy comprehensive process, narration of this see 75-89. See aFor (1985) (Rehnquist, 38, J., also, g., Jaffree, v. 472 U. S. 92-97 e. Wallace 43-49; Drakeman, Republic: Swomley Religion and the James dissenting); Amendment, Religious Liberty in on the First James Madison Madison and 1985). (R. Alley ed. 233-235 in those and even States members of the among established churches, there was to widespread opposition estab multiple lishments because of the social divisions caused.3 Per they to haps response this opposition, subsequent drafts broad ened the of the scope Establishment Clause from “any national to religion” “religion,” a word understood primarily to “[v]irtue, mean as founded reverence of upon God, and expectation future rewards and and punishments,” only secondarily system “[a] of divine faith and worship, oppo site to others.” S. A Johnson, Dictionary of the English (7th ed. Language 1785); accord, T. A Sheridan, Complete (6th 1796). Dictionary the English ed. Language Cf. Frazee v. Illinois Dept. Employment Security, S. (1989) 829, 834 (construing “religion” protected Free Ex- by 3“Other members of the established disapproved church also taxation religious purposes. for these, Sullivan, One of James who was later elected Governor Massachusetts, wrote about such glar taxation: ‘This ing piece tyranny upon was founded one or the other of these suppositions: that the church religious, members were more had more un derstanding, higher or had a privilege than, preeminence or a over those who were not in full communion, words, or in other growth that their grace religious requirements, gave right them the of taking dispos ing property of the people of other against their consent.’ struggle “The religious liberty for struggle Massachusetts was the against religious purposes. taxation for struggle In that there was civil disobedience; appeals there were to the faraway Court and to the Crown in England. organized fight Societies were to the tax. Even after some de- right only nominations had won the to be taxed for their own churches or meetings, they tax, continued nonpreferential to resist the even on the organized religious basis which all groups received Finally, tax funds. senate, establishment, the state which had refused to end voted in 1831 to people. vote, submit the issue to the place which took was 32,234 3,273 for disestablishment keeping multiple establish- religion. vote, ments of It was a 10 1 and in 1834 the amendment was by legislation.” Swomley made effective 28. Vitale, (1962) (“Another Engel
Cf. 370 U. S. purpose upon Establishment Clause rested an awareness of the historical fact that governmentally religions established religious persecutions go hand hand”).
649 “sincerely apart ercise Clause to include held belief” denomination”). “membership organized religious from in an Plainly, proscribes legislation the Clause as ratified federal establishing religions single a number of as well as a national church.4
Similarly expanded relationship govern was the between religion ment and that was to be disallowed. Whereas ear only “establishing” “touching” lier drafts had barred laws religion, “respecting the final text interdicts all laws religion.” phrase par establishment of This forbids even a tial establishment, Lemon v. Kurtzman, 602, 403 U. S. 612 (1971);Engel (1962), only v. Vitale, 370 U. 436 S. not particular of a sect in favor of but others, also of preference nonreligion, Wallace v. Jaffree, 472 S. 38, U. (1985). significant 52 It is also that the final draft contains “respecting.” “touching,” “respecting” the word Like means concerning, or with reference to. But it also means with respect “good “regard” is, “reverence,” will,” —that —to.5 Taking meaning, into account this richer the Establishment banning religion, especially pro Clause, laws that concern pay homage religion. hibits those that symbol particular Treatment of a of a tradition demon strates one’s attitude toward that tradition. Cf. Texas v. (1989). prominent display Johnson, 491 U. 397 S. Thus the religious symbols government property on falls within the compass though of the First Amendment, even interference personal supporting by choices about a church, means of governmental tithing, primary was the concern 1791. See City, Walz v. Tax Comm’n New York 397 U. S. (1970); supra. 3, n. Whether the vice such a proscription applies This to the States virtue of the Fourteenth Jaffree, S., Amendment. at 48-55. 5“Respect,” Sheridan, as defined in T. Complete Dictionary A of the (6th 1796). English Language Johnson, ed. Dictionary See S. A (7th 1785); English Language ed. English Dictionary see also The Oxford (1989); (1988). 733-734 Collegiate Dictionary Webster’s Ninth New post, see at 660-661 *64 “coercion,” as characterized (Kennedy, part), concurring judgment part dissenting or and J., concurring in ante, at “endorsement,” J., see 626 (O’Connor, merely concurring judgment), part as state action and support specific providing purpose for and effect of with ground that Lemon, S., 612, 403 U. at it is common faiths, cf. speech “respecting symbolic governmental an establish- this may religion” Jaffree, violate the Constitution.6 Cf. ment of (1984). Donnelly, Lynch 668 v. 465 U. S. 60-61; 472 U. atS., my opinion Establishment should be con- In Clause display strong presumption against the create a strued to always symbols public property.7 There is on Kennedy at Justice O’Connor’s 6 The criticism that Justice levels symbolic speech, post, at 668- evaluating standard for see endorsement “uncharitable,” 675, largely 678, only post, at but also unfounded. is not alia, that 1 the 2 articles he cites as dis neglects Inter he to mention test, 669, than 16 favoring post, at itself cites no fewer the endorsement Smith, Symbols, Perceptions, lauding 1 the test. articles and book See Neutrality Establishment and the “No Endorse and Doctrinal Illusions: Kennedy’s (1987). Test, 266, 274, Mich. L. Rev. n. 45 ment” admits, test, moreover, is, preferred post, he himself “coercion” step precedent. out of with our The Court has stated: Clause, Clause, “The unlike the Free Exercise does not de- Establishment any compulsion pend upon showing governmental of direct and is violated religion whether the enactment of laws which establish an official those directly Engel, operate nonobserving laws to coerce individuals or not.” S., 370 U. at 430. so, unlikely identifies the
Even if the law were not it seems that “coercion” displays any permissible impermissible religious more line between brightly than “endorsement.” does vein, strictly interpreted In have the Amendment’s a similar we strong presumption Speech worded Free and Free Press Clauses to raise against, outright, abridgment rather than to ban state of communications. (1973). See, Kentucky, By suggesting g., 413 U. S. e. Roaden symbolic presumption plays considering governmental a role in such a “ my position ‘high I that a speech religion, about do not retreat from separate government parochial impregnable’ wall” should funds from Religious See Committee Public Education and schools’ treasuries. risk that such will symbols offend nonmembers of the faith advertised as well as being adherents who consider the par- ticular advertisement disrespectful. Some devout Chris- tians believe that the creche should be reveren- placed only tial such as a church or settings, perhaps private home; they do not countenance its use as an aid to commercializa- tion of Christ’s birthday. S., Cf. at 726-727 Lynch, J., dissenting).8 suit, this members of very (Blackmun, the Jewish faith firmly the use opposed to which the menorah was put by sect that particular sponsored the Pittsburgh’s City-County Even Building.9 though “[p]ass- ersby who disagree the message conveyed by these dis- *65 plays are free to ignore them, or even to turn backs,” their see at 664 post, J., in in concurring judgment (Kennedy, and in part of dissenting part), displays this kind inevitably have a greater tendency emphasize sincere and felt deeply differences individuals than among to achieve an ecumenical goal. The Establishment Clause does not allow public bodies to foment such disagreement.10 (1980)
Liberty 646, Regan, (Stevens, J., v. 444 U. S. 671 dissenting) (1947)). (quoting Ewing, 1, Everson v. Board Education 330 U. S. 18 8 point Governing reiterated here amicus the Board of the A., National in argues Council of Churches of Christ the U. S. which that “government acceptance public property of a créehe on . . . secularizes and degrades symbol Christianity,” a sacred Brief for American Jewish S., Committee Amici Engel, et al. as Curiae ii. See also 370 U. at 431. Indeed two Roman Catholics testified before the District Court in this case display 79-80, App. the créehe offended them. 93-96. 9 i-ii; See Brief for American Jewish Committee et al. as Amici Curiae Brief Congress 1-2; for American Jewish et al. as Amici Curiae Tr. of Oral Arg. 44. danger governmental
10 Thesecases illustrate the displays of reli gious symbols may give divisiveness, rise to unintended for the net result disposition display of the Court’s is to disallow the of the créehe but to Laypersons allow the of the menorah. unfamiliar with the intrica jurisprudence may cies of wholly unjusti Establishment Clause reach the preferring fied conclusion that the itself is Court one faith over another. (1986) Weinberger, See Goldman v. 475 U. S. (Stevens, J., 512-513 652
Application strong presumption against public of a use religious symbols scarcely “require a relentless extir will pation religion,” of all contact between and see post, concurring judgment part J., at 657 in in (Kennedy, dissenting part),11 prohibit display only for it will message, pre when its evaluated in the context in which it is example, carving sented, is nonsecular.12 For of Moses holding only if Commandments, Ten that is the adorn conveys equivocal message, wall, ment on a courtroom perhaps respect general, Judaism, for or for carvings depicting law. The addition of and Mo Confucius may religion, particular religions, hammed honor to an ex any tent that the First Amendment does not tolerate more permanent large than it does “the erection of a Latin cross on ” city post, the roof of J., hall. See at concur (Kennedy, ring judgment part .dissenting part). Cf. Stone (1980) curiam). (per Graham, U. S. Placement of figures Augustus, secular such as Caesar Black William Napoleon Bonaparte, alongside stone, and John Marshall signals respect these three leaders, however, not (1971) (“[T]he Kurtzman, concurring). Cf. Lemon v. 403 U. S. sought protect religious worship perva Constitution’s authors from the (“Neither S., power government”); Engel, sive at 430 the fact prayer may denominationally be neutral nor the fact that its ob *66 voluntary part servance on the of the students is can serve to free it from Clause”). the limitations of the Establishment suggestion only governmental support 11 The alternative to of religion governmental hostility represents step in giant is to it backward Religion jurisprudence. contemporary our Clause Indeed in its first Clause, Court, differing examination of the Establishment while on apply principle, unanimously agreed government how to that could not support require religions. believers or nonbelievers to Everson v. Board (Rut Ewing, S., 15-16; id., Education 330 U. at see also at 31-33 J., Accord, S., ledge, dissenting). Jaffree, 472 U. at 52-55. (1982) Ferber, (Stevens, J., New York v. 458 U. 778 12 Cf. S. con (“The question curring judgment) specific in whether a act of communica protected by always requires tion the First Amendment some consider context”). its content and its ation both for great proselytizers but for great lawgivers. It would be absurd to exclude such a from a fitting message courtroom,13 as it would to exclude Italian religious paintings by Renais sance masters from a public museum. Cf. Lynch, S., at 712-713, 717 (Brennan, J., Far dissenting). from “bor on latent dering] hostility toward see religion,” at 657 post, J., in concurring judgment part dissenting (Kennedy, this careful part), consideration of context due gives re to gard religious nonreligious members of our society.14 Kennedy’s I Thus find wholly unpersuasive Justice at- tempts, post, 664-667, to belittle the importance of the ob- vious differences between the of the creche in this (1984). case and that Lynch Donnelly, U. S. 668 if I Even had not dissented from the Court’s conclusion that creche was I Lynch constitutional, would conclude that Allegheny County’s of a unambiguous exposition sacred sym- bol inside its courthouse promoted Christianity to degree course, leaders, All appear these in friezes on the walls of our court Supreme room. See The (published Court of the United States 31 cooperation Society Supreme of the Historical of the Court of the States). United long ago rejected 14 TheCourt a contention similar to that Ken nedy today: advances argued apply way pro- “It has been that to Constitution such a as to respecting hibit state laws public establishment of services in hostility schools is to indicate a religion prayer. toward or toward Noth- course, ing, history wrong. inseparable could be more of man is history religion. [Early from the . . . knew Americans] that the First Amendment, put which tried governmental to an end to control of prayer, destroy They and of was not written to either. knew rather that quiet well-justified nearly was written to fears which all of them felt aris- ing governments past out of an awareness that had shackled men’s speak only tongues religious thoughts make them government that speak pray only them to and to wanted to the God wanted pray them to to. It is neither sacrilegious antireligious say nor separate government in country stay each this should out of the business of writing sanctioning prayers official purely religious and leave that func- people people tion to the themselves and to those the choose to look to for (footnotes omitted). guidance.” Engel, S., U. 433-435 *67 Accordingly, I con- the Establishment Clause. that violated judgment regarding creche for substan- in the Court’s cur opin- tially discussed Justice the same reasons Brennan’s join, of Justice I as well as Part IV ion, which Blackmun’s opinion. opinion I Part of Justice and O’Connor’s display agree conclusion I Court’s cannot Building City-County Pittsburgh’s constitutional. was at headquarters, governmental Standing in front of a alone convey holiday greet- might evergreen lighted, tree 45-foot Christianity tenuously ings to have constitu- linked too Juxtaposition an 18-foot tree with of this tional moment. secular, as Justice the latter not make menorah does presence Rather, at 616. contends, ante, Blackmun symbol,15 unquestionably a menorah, the Chanukah gives religious significance tree. The over- to the Christmas approval governmental of the Jew- all thus manifests religions. S., 472 U. at 60-61 Jaffree, ish and Christian Cf. (quoting Lynch, J., con- S., at 690-691 (O’Connor, in preliminary at a agreed judge After the and counsel for both sides 144-145, symbol, App. junction hearing that the menorah was a creche “are and the expert witness that the menorah rabbi testified as an mir perceive to be they represent what we comparable symbols, that both being de Hanukkah acles,” id,., “heard of and that he had never at States,” id., Al at 148. holiday in the United general clared a secular hearing that at a later testified intervenor Chabad though a witness for definitely symbolizing a reli in the home on Hanukkah “[w]hen used symbolize any menorah can whereas, times the gious . . at other ritual. agreed light id., he also symbolize,” at wants it to thing that one the miracle it publicize place “probably would” public in a ing the menorah id., represents, at 263. overriding meaning secular Nonetheless, attaches Blackmun ante, (O’Connor, Contra, at 632-634 Ante, at 613-616. to the menorah. ante, 638, 641-643 judgment); at concurring in J., part and concurring in part); post, dissenting part J., concurring (Brennan, part). dissenting He judgment part J., concurring in (Kennedy, reference, only to facts of not only after exhaustive conclusion reaches this treatises, degrees assess the to which primarily to academic but record Ante, religious or secular. tree, are menorah, and the creche 579-587, 616.
curring)). conceivably Although might interpreted it be sending message pluralism “a of and freedom to one’s choose concurring part own ante, at 634 beliefs,” J., in (O’Connor, concurring judgment); (opin- and in accord, ante, at 617-618 J.), message sufficiently ion Blackmun, of is not clear to strong presumption display, respect- overcome the ing religions very two to the exclusion of all others, is the kind of double establishment that the First Amendment was designed judgment to outlaw. I would, therefore, affirm the Appeals entirety. of the Court of in its with whom The Chief Kennedy, Justice Justice, Jus- join, concurring and in the tice White, Justice Scalia judgment part dissenting part. in majority County Allegheny holds that the violated by displaying the Establishment Clause a creche in the county “principal primary courthouse, because or effect” display meaning is advance within the (1971). Kurtzman, Lemon 602, v. 403 U. S. 612-613 This unjustified view of the Establishment Clause reflects an hos- tility religion, hostility toward inconsistent with our his- tory precedents, holding. I and our dissent from this display The creche is constitutional, and, for the same rea- city Pittsburgh of a sons, menorah permissible point, as well. this I On latter concur reasoning, result, but not the of Part ofVI opinion. Blackmun’s
I keeping years, with the usual fashion of recent the ma jority applies judge constitutionality the Lemon test to holiday displays question. pres here I am content for purposes ent to remain within the Lemon framework, but do advocating, adopting, not wish to be seen as let alone primary guide in test as our this difficult area. Persuasive emerged. Aguil criticism of Lemon has See Edwards v. (1987) dissenting); lard, 578, 482 U. S. 636-640 J., (Scalia, (1985) Aguilar Felton, 402, U. S. 426-430 (O’CONNOR, dissenting); J., Jaffree, Wallace v. 472 U. S. 108-113 (1985) dissenting); Maryland J., Roemer v. Bd. (Rehnquist, (1976) Works, Public U. S. 768-769 J., (WHITE, concurring question judgment). utility Our cases often its providing ques- concrete answers to Establishment Clause calling “‘helpful signpos[t]’” “‘guidelin[e]’” tions, but comprehensive our assist deliberations rather than a test. *69 (1983)(quoting Allen, Mueller v. 463 388, U. S. 394 Hunt v. (1973)); McNair, 734, 413 U. 741 S. Committee Public for Religious Liberty Nyquist, Education & v. 413 756, U. S. (1973) (quoting n. 31 773, Richardson, Tilton v. U. 403 S. (1971)); Lynch Donnelly, 672, 677-678 see v. 465 668, U. S. (1984)(“[W]e repeatedly emphasized unwilling- 679 have our any single ness to be confined to test or criterion in this area”). sensitive Substantial revision of our Establishment may unnecessary Clause doctrine be order; but it today, undertake that task even for the Lemon test, when applied proper sensitivity to our traditions and our case supports law, the conclusion that both the creche and the permissible displays menorah are in the context of the holi- day season. only implicated
The Lemon factor in these cases directs us inquire “principal primary whether the or effect” of the challenged government practice is “one that neither advances religion.” requirement nor inhibits S., 612. neutrality inherent that formulation has sometimes been categorical example, stated terms. For in Everson v. Ewing, (1947), Board Education 330 1 U. S. the first jurisprudence, in our case modern Establishment Clause Jus- tice Black wrote that the Clause forbids laws “which aid religion, religions, prefer religion one aid all or one over an- government Id., other.” at 15-16. We have stated religious theory, “must be neutral in matters of doctrine, and practice” “may promote religion and not aid, foster, or one religious theory against against or another or even
657 opposite.” Epperson Arkansas, 97, militant 393 U. S. (1968). spoken prohibition against 103-104 And we have of a conferring “‘imprimatur approval’” religion, of state on supra, (quoting Allen, Vincent, Mueller v. at 399 Widmar v. (1981)), any “favor[ing] U. S. the adherents of religious organization,” States, sect or Gillette v. United (1971). U. S. give impression
These statements must not
of a for-
logical extreme,
malism that does not exist. Taken to its
language quoted
require
some of the
above would
a relent-
extirpation
less
of all
between
re-
contact
ligion.
history
purpose
But that is not the
or the
policies
Establishment Clause. Government
of accommoda-
acknowledgment,
support
tion,
are an ac-
cepted part
political
heritage.
of our
and cultural
As Chief
Burger
wrote for the Court Walz v. Tax Comm’n
(1970),
City,
New York
we
Rather than to avoid action that acknowledges religion, per- or aids the Establishment Clause government recognizing in mits some latitude and accommo- religion plays society. dating Lynch in the central role our Donnelly, supra, Tax New 678; v. Walz v. Comm’n of Any City, supra, approach at 669. less York sensitive to our hostility religion, heritage would border on latent toward as require government it would all its multifaceted roles to only acknowledge the exclusion and secular, to so to the religious. categorical approach A in- detriment of the would jealous guardians of an “wall stall federal courts as absolute sending message disapproval. separation,” a clear of In of century, expands as the modern administrative state to this ways touch the lives of its citizens such diverse and redi- through programs rects their financial own, choices of it its requiring government difficult to maintain fiction to religion avoid all assistance to can in fairness viewed be goal serving neutrality. of understanding.
Our reflect cases this v. Zorach Clau (1952), example, permitted son, S. for we New City’s public system York school to the reli accommodate gious preferences by giving option of its students them the of staying leaving religious part in schoolor to for attend classes day. Douglas wrote Court: encourages religious
“When the state instruction . . . respects it followsthe best our traditions. For it then people nature our and accommodates the public spiritual service to their needs. To hold may require- not would be to find the Constitution a ment that the show a callous indifference to religious groups. preferring That would be those who believe no over who do Id., those believe.” at 313-314.
Nothing compelled in the First Amendment New York City policy to establish the in Zorach, release-time but the policy religion, particular fact that the to served aid and in those young, sects that offer education to the did not up- invalidate accommodation. Likewise, we have government programs supplying held textbooks to students parochial schools, Board Education Central School (1968), providing grants Dist. v. Allen, No. 1 392 U. S. church-sponsored colleges, universities and Roemer v. Maryland supra; Works, Bd. Public Tilton Richardson, supra, exempting obligation pay churches from City, supra. taxes, Walz v. Tax Comm’n York New *71 programs providing These all have effect of substantial particular religions, g., supra, benefits to Tilton, e. see, (grants church-sponsored at 679 to educational institutions “surely institutions), they aid” those but are nonetheless permissible. Lynch Donnelly, supra; See v. McGowan v.
659 Maryland, Illinois ex rel. Mc 420, U. S. (1961); Collum v. Board Education School Dist. No. Cham of (1948). paign County, 333 U. S. 211-212 As Justice in Abington School District v. wrote Schempp, Goldberg (1963): U. S.
“It is I said, and the attitude of agree, govern- ment toward religion must be one of But un- neutrality. tutored devotion to the can lead concept neutrality to invocation or approval results which not partake of that noninterference and simply noninvolvement with which commands, the Constitution but of a and pervasive devotion to the secular and a brooding or even passive, active, to the hostility religious. Such results are not not only compelled by Constitution, but, me, it seems to are it. prohibited by
Neither nor this Court can or should ig- nore the fact that a vast significance portion of our believe and people God and that of our worship many and legal, political personal values derive historically from religious teachings. Government must inevitably Id., take of the existence of . . .” cognizance religion . J.). Harlan, 306 (concurring opinion, joined by ability organized community recognize accommodate with a religion society pervasive public sector observance of the border requires diligent between accommodation and establishment. cases Our disclose two not coerce limiting principles: government may anyone or its any religion exercise; or support participate in the or in- may not, avoiding hostility callous guise direct benefits to such a difference, give religion degree faith, that it fact “establishes religion [state] S., Lynch Donnelly, or tends to do at 678. so.” distinct, unrelated, These two while are not for it principles, to establish a would be difficult indeed without some less subtle be it in coercion, measure of more or the form of taxation to the substantial benefits would sustain supply *72 660 compulsion faith, state-established direct to observance, or
governmental religiosity exhortation to that amounts in fact proselytizing. to surprise exception
It is no
that without
we have invali
religion through
dated actions that further the interests of
power
government.
the coercive
Forbidden involvements
compelling
coercing participation
include
or
or attendance at
activity,
Engel
(1962);
Vitale,
see
v.
370
421
U. S.
Maryland, supra,
(discussing
McGowan v.
at 452
McCollum
Champaign
71,
v. Board
Education
School Dist. No.
County, supra), requiring religious
govern
oaths to obtain
benefits,
Watkins,
ment office or
Torcaso v.
As observes,
597-598,
n. Blackmun
reject
some of our recent cases
the view that coercion is touchstone of an
sole
Establishment Clause violation. See
(dictum)
Engel
supra,
(rejecting,
Vitale,
at 430
without ci-
authority, proposition
required
tation
that coercion is
violation); Abington
demonstrate an Establishment Clause
Schempp, supra,
Nyquist,
District v.
School
at 223;
may
That
if
S.,U.
786.
be true
“coercion” is meant
direct coercion the classic sense of an establishment of re-
ligion that the Framers knew. But coercion need not
abe
*73
religion
Symbolic recog-
direct tax in aid of
or a test oath.
religious
may
nition or accommodation of
faith
violate the
example,
Clause in an extreme
I
case.1
doubt not, for
city
permit
permanent
the Clause forbids a
erection of
large
city
a
Latin cross on the roof of
hall. This is not be-
government speech
religion per
suspect,
cause
about
is
se
majority
would have it, but because such an obtrusive
year-round religious display
place
government’s
would
weight
proselytize
an
behind
obvious effort to
on behalf of
particular religion.
a
County
Cf. Friedman
Board
v.
(CA10 1985)
County,
Comm’rs Bernalillo
“The deducible from the First Amend- by ment and all that has been said the Court is this: that governmentally we will not tolerate either established re- ligion governmental religion. or interference with Short expressly proscribed governmental of those acts there is play joints productive room for of a benevolent neutrality permit religious which will exercise to exist 1 Justice Stevens is incorrect when he requiring asserts that a show ing of direct or indirect coercion Establishment Clause cases is “out of Ante, step precedent.” with our n. 6. As is demonstrated Engel Vitale, Justice Stevens 370 U. S. language quotes from that direct (1962), only our eases have held always coercion need not be an Establishment prayer shown to establish Clause violation. The invali Engel unquestionably manner, dated in was coercive an indirect as the Engel recognized immediately in the sentences Court itself following the Id., Stevens quote. passage chooses to 430-431. sponsorship interference.” and without without at 669. S.,U. recog- government’s act of is most evident where
This symbolic, passive is nition or accommodation unlikely pre- any religion intangible benefit to instance coercion, Absent sent risk of establishment. a realistic liberty by passive sym- infringement or risk of cases reflect this real- bolic is minimal. Our accommodation symbolic recognition ity by showing requiring or religion degree that it to such a ac- accommodation advances tually or tends to faith, or “establishes Lynch, at 678. S., so.” do determining establishment, whether there exists *74 tendency types the other of church- one, toward we refer to throughout unchallenged state contacts that have existed our history, permissible in been found our case law. or that have city Lynch, example, upheld In for we of Pawtucket’s holiday display despite the fact that “the creche, of a religion advance[d] Id., in a sense.” at 683. We held that religion greater on than did the creche conferred no benefit religious legislative governmental support education, for origins [Christmas] “recognition chaplains, Holi- of many sym- day other forms of Mass,’” or itself as ‘Christ’s religious governmental tangible faiths assistance to bolic or safety Id., tradition. of national ensconced the are Chambers, that Ne- we found in Marsh 681, 683. And chaplain employing legislative practice did not braska’s of prayer “legislative Clause, because Establishment violate the provi- presents potential than the for establishment no more higher grants transportation, beneficial edu- for sion school organizations.” exemptions tax or cation, omitted). (citations government Noncoercive S.,U. passive or of flexible accommodation the realm action within symbols existing acknowledgment does not violate the way religion in unless it benefits Clause Establishment practices more direct and more substantial than that are ac- cepted heritage. in our national
h-H rH principles apply are not difficult These to the facts of the permitting displays government cases before us. on property city county of the menorah and the creche, the sought to do no more than “celebrate the season,” Brief for County Allegheny p. Petitioner No. 87-2050, 27, and to acknowledge, along many with of their citizens, historical background religious, and the secular, as well as nature of holidays. the Chanukah and Christmas This interest falls government well within the tradition of accommodation and acknowledgment history that has our marked from beginning.2 disputed government, It cannot be if may participate sharing joy it chooses, with its citizens the holiday by declaring public holidays, installing season, permitting displays, sponsoring festive celebrations and parades, providing holiday employees. vacations for its government precisely All levels of our do that. As we said Lynch, long recognized “Government has it has —indeed holidays religious significance.” S.,U. subsidized— at 676. participate
If is to in its citizens’ celebration holiday of a that contains both a secular and a com- ponent, recognition only aspect enforced the secular would *75 rejects majority suggestion
2 The the of the creche can justified “be religion,” as ‘accommodation’ of because it “does not re Christianity.” Ante, any move burden on the free exercise of 601, Contrary n. 51. assumption implicit analysis, to the however, this we government’s power have never held that to recognize accommodate and religion extends no further than requirements the of the Free Exercise contrary, permissible Clause. To the “[t]he limits of state accommodation by to are no means coextensive with the non-interference man by the Free Exercise Clause.” Walz v. Tax Comm’n New York dated (1970). City, Bullock, Monthly, Cf. Texas Inc. v. 397 U. S. 673 (1989) (Scalia, J., dissenting). U. S. religious faith that signify indifference toward the callous by require; commemorat- do not and traditions cases our by only holiday the ing nonadherents, as it is celebrated plain refusing acknowledge fact, government to would be reality, many citizens celebrate of its historical and the gov- religious aspects invalidation of as well. Judicial its recognize religious underpinnings attempts ernment’s neutrality pervasive signal holiday in- not but would things religious. government from all insulate tent to acknowledge require government Religion do not Clauses strong component; holidays religious but our or their these acknowledgment government accommodationand tradition permits government Donnelly, Lynch to do so. See Abington supra; Clauson, 314; S., cf. Zorach v. 343 U. (Goldberg, Schempp, J., S., at 306 District v. School concurring). power government’s suggestion here that the
There is no
interests of Christian-
used to further the
to coerce has been
compelled
any way.
ity
to observe
No one was
or Judaism
ceremony
activity.
any religious
participate
Neither
or
county
significant
city
amounts of tax
contributed
nor the
religious
money
faith. The creche
the cause of one
to serve
symbols
purely passive
holi-
menorah are
and the
days.
conveyed
Passersby
disagree
message
with the
who
ignore
displays
to turn
them,
are free to
or even
these
they disagree
they
just
when
are free to do
backs,
their
speech.
any
other form of
the menorah
risk that the creche and
There is no realistic
proselytize
represent
or are otherwise the first
an effort to
religion.3 Lynch
step
the road to an establishment
down
passive symbols to acknowl
in which the use of
imagine
can
a case
One
example,
city
if
holidays
present
danger. For
could
this
edge
displays, every significant Christian
through religious
recognize,
chose to
faiths,
argument that
holidays of all other
holiday
ignoring
while
holidays
by its
recognizing
celebrated
citizens
city
simply
was
certain
applying pressure to obtain adher-
establishing an official faith or
without
*76
dispositive
respect
is
of this claim with
I
creche,
reaching
respect
find no reason for
a different result with
symbols
the menorah.
are
Both
the traditional
holidays
acquired
component.
that over time have
a secular
ambiguity,
Ante, at 579,
3, 585,
and n.
and n. 29. Without
Lynch
inquiry
instructs that “the focus of our
must be on the
[religious symbol]
[holiday]
in the context of the
season,”
religious displays
S.,U.
at 679.
In
context,
that
that serve
Holiday
depict
origins
“to celebrate the
and to
of that
Holiday” give rise to no
Id.,
Establishment Clause concern.
Congress
legislatures
at 681.
If
and the state
do not run
they begin
day
afoul of the Establishment Clause when
each
state-sponsored prayer
guidance
with a
for divine
offered
chaplain
salary paid
government expense,
whose
I can-
comprehend
displayed
not
how a menorah or a creche,
in the
holiday
limited context of the
season, can be invalid.4
Respondents say
religious displays
involved here
distinguishable
Lynch
they
are
from the creche in
because
government property
are located on
and are not surrounded
ents would be much more difficult to maintain.
theOn
facts of these
cases,
preference
no such unmistakable and continual
for one faith has been
alleged.
demonstrated or
4 majority suggests
approval
legislative prayer
our
in Marsh
v.
distinguished
Chambers is to be
ground
from these cases on the
legislative
nonseetarian,
prayer is
while creches and menorahs are not.
Ante,
place,
course,
at 603.
purported
the first
this
distinction is ut
terly
majority’s
inconsistent with the
belief that the Establishment Clause
preference
Ante,
no official
religion
“mean[s]
even for
over nonreligion.”
year-round
at 605.
If
legislative prayer
express
does not
prefer
“official
religion
nonreligion,”
ence for
over
a créche or menorah
in the con
holiday
certainly
text of the
season
does
preference
not “demonstrate a
particular
Moreover,
one
sect
majority
or creed.”
Ibid.
chooses to
ignore
opinion
Lynch
the Court’s
Donnelly,
(1984),
display simple that, but the fact when presents government during season, a creche the Christmas danger moving government the no realistic down forbidden religion. the road toward an establishment of Whether by talking wishing poinsettias, wells, or creche be surrounded the relevant carolers, same, the conclusion remains the display the in the itself but the season as context is not items a whole. the creche and menorah are both located on fact that very government,
government property, seat even the place, Lynch inconsequential. first In the is likewise rely setting on fact that the for Pawtucket’s not Court did sug- privately park, display and it difficult owned was anyone message gest have failed to receive a oí that could observing government sponsorship after Santa Claus ride mayor city engine park join with the of Paw- fire to the turning holiday inaugurating season on tucket in city-owned display. Donnelly Lynch, lights v. See (RI 1981). Supp. Indeed, F. the District 525 Court,in might reasonably “people Lynch mistake found public property,” rejected the Park for “frivolous” the suggestion directly that the was not associated with city. Id., and n. 35. suggest, public
Our cases do
moreover,
not
use of
property necessarily
permissible govern
converts otherwise
ment
conduct into
Establishment
To
Clause violation.
contrary,
in some circumstances the First Amendment
may require
government property be
available for use
by religious groups,
Vincent,
see Widmar
U. S. 263
*78
(1981);
(1953);
Fowler
Island,
v. Rhode
Nor can be it should government-owned private a creche on land is lawful while placement privately public on a owned creche land is not.5 anything, thought government If ownership I should have religious symbol presented question the more difficult Lynch under the Establishment Clause, but as resolved that question government sponsorship the action, sustain ought nothing here to be all easier to sustain. short, religious displays distinguishes any about the here them in meaningful way permitted Lynch. from creche we Lynch good today
If is still law—and it until was—the judgment accept approve below cannot I stand. and indeed holding reasoning Burger’s both and the Justice Chief opinion Lynch, judgment Iso must dissent from the display that the creche is unconstitutional. On the same rea- soning, agree display I that the menorah is constitutional. Lynch by The creche in was owned Pawtucket. Neither the creche by nor governmental the menorah at this case entity. issue is owned J-HHH 1—I majority creche, invalidates of the not because disagrees Lynch interpretation applied above, with the reasoning Lynch but because it to discard the of the chooses majority opinion concurring in favor of O’Connor’s opinion ante, in that case. See 594-597. It has never my understanding concurring opinion “suggest- been that a [ing] Lynch, a clarification of our . . . doctrine,” S.,U. concurring), precedence 687 (O’Connor, J., could take over opinion joined entirety by an in its five Members of the general principle rule, Court.6 As a of stare decisis di- only prior holdings us to rects adhere not to the of our cases, explications governing but also to their rules of law. majority Since the does not state its intent to overrule Lynch, apply reasoning I find its refusal to of that deci- quite confusing. sion Lynch
Even if not I control, did would not commit this by applied majority today. Court to the test The notion arising cases under Establishment Clause should be “ ” inquiry decided into whether a ‘reasonable observer’ may “‘fairly “‘sen[d] understand’” action to *79 message they to nonadherents that outsiders, are not full political community,”’ my members of the a recent, and in tangled view most unwelcome, addition to our Establishment jurisprudence. Although Ante, Clause at 595, 620. a scat tering of our cases have used “endorsement” as another word ” “preference” “imprimatur, ap the endorsement test by plied majority genesis had its in O’Connor’s concurring opinion Lynch. Corporation in See also of Presiding Bishop Latterday Church Jesus Christ of of Amos, Saints v. (1987) U. 327, 483 S. 346 (O’Connor, J., concurring judgment); in Caldor, Estate Inc., Thornton v. concurring); Wal- (1985) 703, 472 U. S. 711 (O’Connor, J., 6 majority depth regard by illustrates its error this going Lynch far as to refer previous so to the concmrence and dissent in as “[o]ur Ante, opinions. ...” at 602.
669 concurring lace v. Jaffree, S., J., (O’Connor, U. judgment). by The endorsement test has been criticized g., Symbols, Percep- some field, scholars e. see, Smith, Neutrality tions, and Doctrinal Illusions: Establishment (1987); the “No Endorsement” Test, Mich. L. Rev. 266 Religion, Tushnet, The Constitution of 18 Conn. Law Rev. (1986). Only opinion pur- 701, 711-712 one for the Court has ported apply Rapids in full, see School Dist. Grand (1985), majority’s opin- Ball, 473 U. S. 389-392 but the suggests theory ion these cases that this novel is fast be- coming permanent accretion to the law. See also Texas (1989) Monthly, (opinion Bullock, Inc. v. U. S. 8-9 J.). expressed For the reasons I submit below, Brennan, that the endorsement test is flawed in its fundamentals and practice. adoption unworkable in The uncritical of this every troubling pro- standard is bit as as the bizarre result it duces the cases before us.
A I take it as settled law that, whatever standard the Court applies sug- to Establishment claims, Clause it must at least gest precedents results consistent with our and the historical practices that, tradition, have informed our First Amend- jurisprudence. supra, Lynch, supra, ment See at 655-663; at 673-674; Chambers, Marsh v. 463 U. at S., 790-791; Walz City, v. Tax Comm’n New York S., at 671. It is quite true that, for reasons unrelated to the First Amend- displays commemorating religious holidays ment, were not commonplace generally in 1791. See J. Barnett, The Ameri- (1954). Study can A Christmas: in National Culture 2-11 history inquiry But the relevance of is not confinedto the into challenged practice part whether the itself is a of our ac- cepted dating Founding. *80 traditions back to the proposi-
Our decision Marsh v. Chambers illustrates this sought tion. The dissent in that case to characterize the de- “carving exception cision as out an to the Establishment reshaping Clause rather than Establishment doctrine Clause legislative prayer,” at S., accommodate (Bren- dissenting), majority rejected suggestion nan, J., but the the patterns justify contemporary ca[n] that “historical violations guarantees,” id., at 790. constitutional Marsh stands for proposition, specific practices not common exception sweep an are to the otherwise broad the Estab- meaning Clause, lishment but rather that Clause is by practices to be determined reference to historical and un- derstandings.7 apply per- Whatever we choose to test must only legitimate practices mit not two old centuries but also any practices greater potential other with no for establish- religion. ment of See Committee Public Education and for Religious Liberty Nyquist, S., U. 808 (Rehnquist, dissenting part). J., The First Amendment is a rule, not a digest compendium. implementing protec- A test applied tions of the that, Establishment if Clause consis- tency, longstanding would invalidate traditions cannot be a proper reading of the Clause. applied
If excep- the endorsement test, without artificial practice, tions for historical reached results consistent with history, my objections to it would have less But, force. I test, understand that the touchstone of an Establishment Clause violation whether nonadherents would be made to by government recognition feel like “outsiders” or accom- religion. practices modation of Few our traditional rec- ognizing part religion plays society in our can withstand scrutiny application under faithful of this formula. discussion, ante,
7 Contrary majority’s 604-605, 53-54, and nn. practices the relevant historical by governmental are those conducted units which subject were to the constraints of Establishment Clause. Acts of “official against discrimination perpetrated non-Christians” in the 18th 19th municipalities centuries States and are of course irrelevant to practices inquiry, this but past Congresses highly and Presidents are informative.
671 examples my plain Some suffice to make concerns. Since Founding Republic, of our is- American Presidents have Thanksgiving establishing day sued Proclamations a national prayer. proclamation of celebration and such first was by Washington request issued President at the of the First Congress, assign[ed]” day “recommend[ed] and and “to people be devoted these to service of States great glorious Being that and who is the author beneficent good was, of all the is, that will so that be,” may humbly offering prayers “we then unite in most our and supplications great Nations, to the Lord and Ruler of and promote knowledge practice Him beseech to . . . and religion true and virtue . . . .” 1 A J. Com- Richardson, pilation Messages Papers Presidents, 1789- (1899). p. Washington’s Most of President succes- forthrightly religious suit,8 sors have followed nature proclamations years. of these has not waned with the Presi- “suggest dent Franklin D. Roosevelt far as went so to a na- Holy reading Scriptures period during tionwide Day Thanksgiving may from so Christmas” that “we bear gratitude Almighty more earnest to our witness God.” Presidential Proclamation No. Stat. 1160. It re- quires imagination proclamations little to conclude that these yet they would cause excluded, nonadherents to feel have part heritage beginning.9 been of our national from the 8In keeping degree separation his strict views of the mandated Clause, by the Establishment Thomas Jefferson declined to follow this tra (A. 1904). dition. 11 Writings Lipscomb See of Thomas ed. Jefferson 9Similarly, traditionally our inaugurations opened Presidential have request blessing. occasion, with a for divine At most our recent such on 20,1989, January prayer bowed their thousands heads to this invocation: God, “Our Father and our Thou hast said blessed is the nation whose God is the Lord. recognize
“We on this historic occasion that we are a nation under God. This heritage. faith God is our foundation and our . .. only
The Executive has not been Branch of our Govern- recognize society. ment to the central role of in our opens request The fact that this Court its sessions with the *82 save the “God United States and this honorable Court” Lynch, has been noted elsewhere. 465 U. See S., at 677. Legislature gone only The employing further, has much not legislative chaplains, 2 setting see S. §61d, U. C. but also special prayer Capitol by aside a room in the for use Members of the House and Senate. The is room decorated with a large glass panel depicts Washington stained President kneeling prayer; around him is etched of first verse put my 16th Psalm: “Preserve me, God, I Thee do panel trust.” Beneath the ais rostrum on which a Bible placed; is to Flag. next the rostrum is an American See People: Story L. Aikman, We the of the United States (1978). Capitol 122 Some endorsement is inherent in these yet reasonable accommodations, the Establishment Clause does not forbid them.
The United States Code itself contains
references
suspect
that would be
under the endorsement test. Con-
gress
proclaim
has directed the President to “set aside and
day
year
Day
Prayer,
suitable
each
... as a
of
National
on
people
may
which the
of the United States
turn to God in
prayer
groups,
and meditation
churches,
and as individ-
§
require
uals.” 36 U. S. C. 169h. This statute does not
anyone
pray,
straightforward
course,
to
of
but
is a
endorse-
concept
“turn[ing]
prayer.”
ment of the
to
in God
Also
Pledge Allegiance
Flag
statute,
describes the
§
“one
United States as
Nation under God.” 36 U. S. C. 172.
George Washington
Address,
“As
morality
reminded us
his Farewell
pillars
faith
society. May
forget
are the
of our
we never
that.
Thy
acknowledge
help
“We
leadership
divine
in the selection of our
each
years.
pray
Father,
Son,
“All this we
in the name of
Holy Spirit.
(1989) (Rev.
Graham).
Cong.
Billy
Amen.”
Rec. 303
obligated
phrase,
To be sure, no one is
to recite this
see West
Virginia State Board Education Barnette,
If the intent of the Establishment Clause is to in- feelings legislative dividuals from mere then exclusion, *83 prayer escape argued cannot invalidation. It has been government “[these] acknowledgments of in serve, only ways reasonably possible legiti- the in our culture, the purposes solemnizing public mate secular occasions, ex- pressing encouraging recog- confidencein future, the and worthy appreciation society.” Lynch-, nition of what is supra, concurring). why at 693 (O’Connor, J., I fail to see prayer only way convey messages; appeals is to these to patriotism, any ap- moments of silence, and number of other proaches only purposes would be as effective, were the at Lynch issue the ones described concurrence. Nor is why “encouraging recognition it clear to me of what is worthy appreciation society” can be characterized as a purely purpose, only through secular if it can be achieved re- ligious prayer. prayer “worthy appreciation,” No doubt is assuredly but that is most not because it is secular. Even accepting explanation the secular-solemnization at face value, suggest average moreover, seems incredible to ob- legislative prayer server of who either believes in no reli- gion rejects concept or whose faith of God would not re- message step ceive the clear that his faith is out of with the political norm. Either the test endorsement must invalidate practices recognizing place religion scores traditional culture, holds in our or it must be twisted and stretched to inconsistency practices per- avoid with we know to have been past, condemning practices mitted while similar greater simply by no endorsement effect reason of their lack acceptable. of historical antecedent.10 Neither result B disregarding precedent
In addition to fact, historical majority’s approach the symbolism to use adjudication.
threatens to trivialize constitutional By mischaracterizing opinion Lynch Court’s as an ante, test, endorsement-in-context at Black- jurisprudence reviewing mun embraces a of minutiae. A city court must consider whether the has Santas, included talking wishing symbols reindeer, or wells, other secular separate “a center of attention from Ante, the creche.” determining 598. After whether these centers of attention sufficiently “separate” specific are that each “had their vi- story proxim- sual tell,” to the court must then measure their ity community to Ante, the créche. 48. n. A that wishes construct a constitutional must also majority’s 10 Ifthe applied test logically, were to be it would lead the elimination of all caroling nonsecular public buildings Christmas or, presumably, anywhere public property. on argue It is difficult to lyrics men, like rejoice,” “Joy “Good Christian to the world! the Savior *84 “This, reigns,” “Christ, is King,” by highest adored,” this Christ the heav’n Him, and “Come and behold Born King angels” the have acquired such a secular nature that nonadherents would not by feel “left out” a government-sponsored approved program that included these carols. Evans, See G. W. Ehret & International Book of Christmas Carols (1963). 28, 30, 46, 318 doWe not think for a moment that the Court will programs, ban such carol Thanksgiving Proclamations, however. Like God in Pledge Allegiance, the reference to and invocations to inGod Court, of Congress they sessions and practices of this constitute proscribe, Court will not today but that reasoning Court’s does not explain. might that frames or other devices take care to avoid floral sanitizing of the secular from the effect insulate the creche majority portions display. also notes the Ibid. The of the presence evergreens are identical near the creche that county signs. placed evergreens near official to two small today’s municipal green- decision, Ante, 50. After n. ery used with care. must be prominence important will set- factor be
Another placed. ting case, this Grand in is which proved resplendent. county too of the courthouse Staircase conveyed an that this location itself the Court finds Indeed, county] supports pro- message [the and “unmistakable praise the creche’s reli- that is motes the Christian God message.” gious Ante, at 600. majority’s though perhaps
My description un- test, inevitable difficul- intended to illustrate the charitable, is provide application.11 could workable This test ties with its only guidance courts, ever, if after this Court to the lower using long holiday display little cases, series of has decided tape Deciding measure. cases on more than intuition and a majority’s defend the and Justice O’ConnoR Blackmun 11 Justice Lynch require in by approach followed would suggesting test 606; ante, Ante, at 629-630 (O’ConnoR, equally drawing. line difficult J., concurring judgment). It is true that the concurring part may line-drawing in difficult the unusual case Lynch test involve courts speech municipality extreme use of that an where a insists on such Only adop supra, threatened. See at 661. establishment of is views that either all involvement with tion of the absolutist is, bright provide or that none can line all cases. religion permissible, clarity permitted the Constitution. price is neither exacted nor That ob part, Justice Blackmun’s and Justice O’ConnoR’s But for the most matter, only sym practical cases of jections are not well taken. As likely frequency involving are those recognition to arise with much bolic Lynch provides unambiguous holiday displays, in that context simple test, hand, majority’s other I it. The on the de guidance. would follow from fine detail a wide exquisite to draw distinctions mands the Court produced speaks the test has here range cases. The anomalous result for itself. *85 unguided marginalia such an examination of is
the basis of imperative applying prin- with the neutral irreconcilable adjudication. appall- ciples in constitutional “It would be ing litigation.under to conduct the Establishment Clause experts testifying case, if it a trademark with about were display really another, whether like witnesses one is and testifying they were offended—but would have been less so candy jumbo were the creche five feet closer to the cane.” Congress Chicago, American Jewish 827 F. 2d (CA7 1987)(Easterbrook, dissenting). J., employs many respects in similar Blackmun Justice analysis respect principally discussing menorah, to the proximity its to the tree whether “it . Christmas and is . . interpret light more in sensible to the menorah of the tree, Ante, ante, rather 617; than vice versa.” at see also at 635 concurring part concurring judg- in in J., and (O’Connor, ment) (concluding that tree, menorah, combination of liberty conveys message salute to no of endorsement to rea- observers). goes sonable further, how- Blackmun upholding acknowledgment in ever, and the menorah as an holiday aspects emphasizes city’s with secular lack of “reasonable alternatives that are less in nature.” ibid, (noting Ante, 618; see absence of a “more secular al- symbol”). least-religious-means presents ternative This test First, several difficulties.12 it creates an internal inconsis- tency opinion. in J ustice Blackmun’s J ustice Blackmun suggests earlier that the of a creche is sometimes con- Ante, stitutional. at 598. But it is obvious that there are symbols Christmas, innumerable secular there will always place be a more secular alternative available of a applied Second, creche. the test as Justice Blackmun requires only engage unworkable, not Court deciding particular the unfamiliar task of whether a alterna- 12 course, majority today rejects Of of the Court Justice Blackmun’s ante, approach (O’ConnoR, J., regard. concurring this See 636-637 part and concurring judgment). *86 symbol religious,
tive but is more or less also whether the al- place.” Ante, ternative would “look out of at 618. Third, although purports overruling not to be Justice Blackmun Lynch, the test more-secular-alternative contradicts that de- opinion, cision, as it comes not from the Court’s nor even from the concurrence, but from the dissent. See 465 S.,U. at 699 dissenting). Lynch The in Court noted that (Brennan, J., “argues city’s objectives the dissent that the could have been including display.” achieved in without the creche Id., at 681, n. 7. “True false,” said, or we “that is irrelevant.” perhaps
The result the Court in reaches these cases is clearest illustration of the unwisdom of the endorsement test. Although Justice disavows O’Connor Black- suggestion minority majority status of a mun’s religion question is relevant to the whether rec- ognition constitutes a forbidden endorsement, ante, at 634 concurring part concurring judg- (O’Connor, J., ment), very nature of the endorsement test, with its em- phasis feelings objective easily on the observer, lends type inquiry. person itself to this If there be such a as quite the “reasonable I observer,” am certain that he or she away message holding will take a salient from our in these Supreme cases: the Court of the United States has concluded religions that the First Amendment creates classes of based religions on the relative numbers of their adherents. Those enjoying largest following consigned must be to the sta- any possible tus of least favored faiths so as to avoid risk of offending minority religions. members of I would be the many questions arising first to admit that under the Estab- easy lishment Clause do not admit of answers, but whatever requires, by the Clause it is not the result reached the Court today.
IV approach adopted majority impor- The contradicts implacable tant values embodied the Clause. Obsessive, carefully scripted resistance to all but the most and secu- requires this Court act of accommodation larized forms issuing as to is orthodox decrees what censor, as a national context, orthodox, this means not. and what is What only can the State acknowl- secular; the Christmas what is edge held have been which references to is one its assistance to Orwell- Court thus lends minimum. rewriting history many I can understand it. con- ian judicial antithetical to First ceive no function more Amendment. majority’s ap-
A from the further contradiction arises *87 inap- proach, the difficult and thd Court also assumes for every religious symbol propriate saying of what means. task studying history I full cases, Before these had not known the my suspect menorah, the I same col- and the was true likely leagues. history important, was, is, More this un- and majority people known the to vast of all faiths who saw symbol majority displayed Pittsburgh. the Even if the is hardly quite history right menorah, about of the follows the history view of that this same informed the observers’ the symbol presence. the for its This Court ill and reason is question equipped theology I as board, to sit a national and constitutionality doing so. In- both the wisdom and the its required approach I choose deed, were between the taken by separationist majority I would view, and a strict have consistency respect latter. admittedly troubling
The It suit before us is one. must city purpose that, neutral the be conceded however may county, eager proselytizer use seek to these symbols urge his own to use them to teach ends. or always present. It also true that some to taunt is devout may Christianity by of Judaism or be as offended adherents holiday if nonbelievers, are more so. not To hallway place symbols in a common or these side- they ignored may insulted, even walk, where be or must be many meaning. cherish distasteful to who their For I reasons, these have voted installation might against of these I were a local particular displays official. legislative But we have no jurisdiction over matters of taste within the realm of constitutionally permissible discretion. Our role is enforcement of a written Constitution. In my view, the principles of Clause Establishment and our Nation’s his- toric traditions of pluralism allow diversity communities to make reasonable judgments respecting accommodation acknowledgment holidays with both cultural and reli- gious No aspects. constitutional violation occurs when they do so displaying symbol of holiday’s religious origins.