*1 Joseph King, Jr., King Patricia Smith J. Plain tiffs-Appellants-Petitioners,
v. Municipal Village A Wisconsin Waunakee, Corporation, O'Malley, Murphy, Maureen Jeff Dennis Sweno, Gile, Strickland, Patrick Patrick Paul Holmes Defendants-Respondents. Matiash,
and Suzanne Supreme Court 7, 1994. argument January No. 92-0551. Oral June Decided 22, 1994. (Also 671.) reported in 517 N.W.2d *2 there the plaintiffs-appellants-petitioners For C. Bronson LaFol- by briefs and oral argument were lette, Madison. there was a brief defendants-respondents
For the Institute, L. Parshall by Craig Rutherford Axley Bucaida Fredericksburg, VA and Frank L. by Craig oral Brynelson, argument Madison and Parshall. a
DAY, published This is review of a decision of J. Waunakee, v. Village appeals, King the court of (Ct. 1993), App. affirming 300, 499 2d N.W.2d 237 Wis. summary judgment a circuit court for Dane County, Judge, Jones, Honorable P. Charles which granted summary judgment dismissing the action plaintiffs enjoin Village of Waunakee from displaying part "creche" that was of a Christmas sea holiday display park Village. son owned We appeals. the court of affirm
"Oyez, oyez, oyez." Honorable, Chief Justice and the Supreme the Associate Justices of Court of the All persons having United States. business before nigh this honorable Court are admonished to draw attention, give their for the Court sit- now ting. God save the United States and this honorable Court.1 highest recognize
Thus, Court in the does land *3 Almighty implores protection His for the coun- try and for the Court. It's obvious the Court sees no violation of the Establishment Clause of the First Amendment to the United States Constitution in the opening Rehnquist Court's declaration. Chief Justice impressions recalls his he it com- when first heard open ments: "It a ritual that had been used to Anglo-Saxon many courts for centuries." Id. Day
Justice Sandra in her O'Connor concurrence County Allegheny U., v. American Civil Liberties (1988) says: 573, 630-631, 109 492 U.S. S. Ct. 3086 It is the combination of the existence longstanding practices opening legislative such as sessions legislative prayers opening with Court sessions with the United 'God save States and this honorable Court, Was, Is, Supreme How It How It William H. (1987). Rehnquist, Company, Inc., p. William Morrow and nature, that Court,' nonsectarian as well as their particular that those me to the conclusion leads roots, do con- their not despite practices, particular of endorsement vey message religious beliefs. "examples deism." as of ceremonial refers to such
She Id. public prayers examples of illustrate the
These Supreme Being profound and the connection beginning. our national life from that has infused explaining accept- her comments Justice O'Connor's opening Deity in court of the invocation ance ceremony that must of shows the ambivalence also every attempt apply meaning necessity attend variety of to an infinite fact clause establishment gov- people and our various levels as our situations celebrate our various seek suitable means to ernment holidays. Supreme States Court whose
It is the United interpretation phrase, evolving changing religion," perforce "respecting an establishment before the outcome of case us. determines
FACTS holiday is in annual sea- The facts to what dispute. case before us are not son display baby figures representing Jesus, shows St. figures. description Mary Joseph and other A and St. along pertinent in this with other matters involved *4 in the of Honorable Maureen case are set forth affidavit O'Malley, Village of Waunakee, President of the Board part Trustees, and is record. Similar affidavits of other Trustees are also in the record. President part O'Malley's affidavit reads follows: resident, affiant your Village of Waunakee As a ... annual of Waunakee's Village with is familiar Village of Waunakee display... holiday season population a municipality with is a Wisconsin forty approximately . For 6,000. . . approximately an displayed of Waunakee has Village years the adja- park in a local display holiday season annual Village in the district primary business cent to on put up display . . . The . . . of Waunakee 3, January 1990, on 20, and removed November eight display is located of the . . . The site 1991. mile) of a three-quarters (approximately blocks . . On or about Village Hall. . from the Waunakee 1990, Village of Waunakee 30, November Freedom attorney for the from the a letter received ('FFRF') demanding that Foundation Religion From from Waunakee its . . . Village remove 1990, was dis- 30, letter The November . . . Park. Village Board 5, 1990, December at the cussed time as the taken at that action was meeting but no At meeting agenda.... the board not on matter was meeting, 17,1990, Board Village December to the demand Board considered Village Waunakee Park. from Waunakee . . . remove the based modify display, the ... Village Board voted assure that Village's attorney, upon advice . . . The . . . the law. consistent with display was Village Board's to the pursuant as modified display, large three 1990, vote, consists of December colored with were decorated evergreen trees which saluting scene, sign nativity lights, a Christmas wishes, flagpole and a extending holiday liberty and lights and tree colored Christmas decorated with ever- . . Each of the pointed star. . plaque of a five has a height twenty feet green trees is over Each tree is seven feet. approximately diameter Two lights. tree colored Christmas decorated with directly behind trees were of the Christmas *5 right nativity and of the immediately the left of the tree front The third Christmas is scene. other scene and the two liberty sign, nativity 1 are hereto as Exhibit trees. Attached Christmas which accu- copies photographs and correct of true . . . . The display. the 1990 . . rately represent as follows: the nativity of scene are dimensions thirty-two inches height, is seven feet in stable in width. The and one-half feet and seven deep, lights. Christmas adorned with colored creche is shepherds/wise figures silhouette three Wood right and sheep are located the left and three men display . . . also . . . The Waunakee the stable. Park flagpole of Waunakee decoration includes on lights plaque tree with colored Christmas flagpole The is is five star. pointed which there trees large two Christmas located between . The . . behind the creche. . . . immediately the dimensions of sign, also includes a display contains the eight square. sign feet The which are holiday in the colors following message written and green: red Season, Village 'During Holiday liberty. Let these Waunakee salutes festive us we are the
lights and times remind liberty leg- keepers and our flame of religion or acy your Whatever of freedom. holidays beliefs, enjoy Village Waunakee Board' added) (Emphasis green sign with red is decorated ribbons garland. Village garage
. . The . . . is stored . display. Consequently, Village it not no when on display- of the... expended storage funds are nativity part which is of the . . . scene purchased by Waunakee, Village was not but rather, Village.... donated to the part As Village of Waunakee's celebration of the winter hol- *6 season, iday Village light decorates the poles on 113) (Highway gar- both sides of Main Street with Park, lands and Christmas ornaments. Waunakee Village's display located, where the .. . is is also on Main exception Street. . . . With the of the present lawsuit, your affiant not any is aware of other com- plaint to Village ever made of Waunakee official relating the Village's display.... Village to ... of Waunakee has not and will not any consult with religious organization church or relating to the con- display tent or of the Village's display. . . . . . The . only tax expended by Village relating dollars to display the . . . are electricity lighting for display, including trees, the Christmas and salaries Village and benefits of employees to erect and display remove the . . . annually. This amount minimal and does not annually... exceed . $500.00 17, Your affiant voted on December to con- display tinue to Village Waunakee's . . . your because affiant believed that the dis- play following served the purposes: functions and promote community goodwill during holiday season; to encourage visitors to and citizens of Waunakee to come to Village's district; business Village's continue the long-standing tradition of recognizing holiday the national of Christmas and origins; its historical recognize and to that there is significant public among Village sentiment citizens in favor of display. the... question is,
The first does the Waunakee annual holiday season violate the "Establishment Clause" of the First Amendment to the United States Constitution?
We conclude that it does not. "Congress law shall make no reads:
The Clause religion, prohibiting respecting or an establishment free exercise thereof...." "concerning, regard- "respecting" means The word ing, about, anent."2 provisions
"(Religion)... in constitutional as used forbidding the 'establishment or Amendment First system particular religion', of faith term means a recognized practiced particular worship added.)3 (Emphasis church, sect, or denomination." adopted Congress so that This amendment with national church interfere not establish a could supported already and tax "established" churches which laws still existed states, some of several early 1800's. *7 by pointed this Petitioners in their brief to As out Court: Congress that providing of original purpose respecting no law an establishment
'shall make government to the national religion' prevent (like church setting up from an established England), is, a church financed and Church of that by government privileges and accorded controlled The establishment religious groups. denied other designed religious liberties clause was secure belong to did not whatever people of those who the national might have become denomination in the com- Congress was not to take sides church. (Citations religious groups. petition among omitted). Co., C., Dictionary Synonyms, G. & Merriam 2 Webster's (1942).
pub. Springfield, Mass (6th 1990). Dictionary, p. 1292 ed. 3 Blacks Law 32 Court over the last Supreme The United States "establishment" has word a years given several than that envisioned meaning by expanded more framers. of the Madison, the "Father Constitution"
James read: the amendment had proposed abridged rights civil of none shall be on account any nor shall national or worship, belief established, nor he equal shall full and manner, any any of conscience be in or on rights (1789) infringed." Cong. Annals pretext, added). (Emphasis Allegheny, Concurrence, at
Justice Stevens U.S. 647. of the objection
Because of the anti-Federalists word, "national," he withdrew it and its use went along wording adopted. with The United States Court has Supreme recently "establishment" to mean "endorse- interpreting been church, sect, "particular ment" not in the broadest sense "religion" but denomination" religions." as "all such course, on us are, binding
These interpretations interpreta- what effect these we must determine display. on the of the Waunakee legality tions have is the authored opinion One of the cases principal v. Lynch Burger Chief Justice Warren former Ed. 2d 1355, Ct. 79 L. 465 U.S. 104 S. Donnelly, (1984). our case since it involves It comes close to *8 604 and role history to the whole speaks scene and nativity sub- "religious" involve that may holiday displays of in use of such and permitted the proper and jects of significance and cultural history of the recognition holiday question. the part
Lynch of a with had a creche that "was symbols non-religious" figures as a such other candy "talking wishing well," a house, reindeer, Santa items. canes and similar development history this of
A of cultural brief going phenomenon on for centuries that has been social figures finally group to a of homemade leads and that park celebrating in the little Vil- in a small Christmas might lage Wisconsin, be order. Waunakee, of perceived "religious" or "Chris- as What is often reality perspective is in seen in historical tian" when overlay developed, sense, has in a "a life cultural particular quite to the often is attenuated its own" and it event to which seems relate. not or "Christ's Mass" was celebrated
Christmas century. century In the fifth the date of until the fourth 25 was made official the Western Church December 6). (The January celebrated The West Eastern Church adopted Sun. the old Roman feast birth Among was not known. The actual date of Jesus' birth Celtic solstice or Germanic and tribes winter long the return of the sun December celebrated Christianity adoption and was known before the holly, "yule" for the a term still used season. yule log wassail bowl are relics mistletoe, very pre-Christian Thus, times.4 celebration has unique history even the names of its own. We retain pre-Christian gods days of our the week: some Wednesday Tuesday god war; for Tiw, for Woden (Wotan, men"); Thursday gods or Odin "father of (Thundergod); Friday Frigg, for Thor wife of Odin. Americana, Encyclopedia Corp., N.Y., Americana vol. (1951). 6, p. 623 *9 French) (from
"Creche, rep- old or crib Manger —a at in the stable scene Nativity of the resentation Bethlehem."5 the event before years over a thousand
It took or Nativity a "creche" we now call what depicted scene! (1181-1226) with is credited of Assisi Francis
St. 1223. Christmas custom at the "creche" instituting live cattle and used crib in a cave at Greecio set aup He the scene of the to reenact and local people and sheep the shepherds in Luke when described events 2:1— child in the manger.6 to see the to Bethlehem came child, his the scene of versions of Various cattle, shepherds, sheep, St. mother, Joseph, as one of popular has become "Kings," or "Wisemen" with Christmas. associated symbols cultural many scene are depicting children by Tableaus or plays activity. of Christmas common forms "Three Kings" of the story The development frank- gifts "gold, and brought followed the star who as interesting Christ child is to the myrrh" incense and history. cultural Testa- of the New versions English
None of to the "wisemen two, refer Matthew, Chapter ment there say and none "Magi" East" as "Kings" from the no number. They give of them. were three Rheims version of 1582 refers to them The (1525), Great versions, Tyndale other "sages." Bible Bishops' Geneva Bible (1560), Bible (1539), Dictionary, Collegiate Mer Seventh New G.&C. Webster's (1965) Co., Springfield, Mass ricam Attwater, Dictionary, 6 A Donald Catholic ed. Assisi, St. Francis (1961); Law Co., New York MacMillen Francisco, Row, Cunningham, Harper San rence (1981). California, 34-35, 122-123 pp. (1611), (1568), King American Standard Version James (1881) finally Standard Ver- the Revised Version (1946) to them as "wisemen." all refer sion *10 designation "Magi" of them as later The —the astrologers in priests of Persia Zoroastrianism Worshipful Rings," are accre- all cultural "the Three the centuries. Much have over that accumulated tions has little to do of these stories with the content of they scriptural have of the events with which accounts become associated. large a urn in the instance, the cover of burial
For Eustorgis, Italy, Sepul- Milan, is marked St. Church of (Tomb Magi). Magorum The of the Three crum Trium gave Emperor the relics Constantine tradition is Eustorgius Bishop Kings Milan, of in the Three of They century. moved to Cathedral fourth were Germany, by Cologne, in 1164. Frederick Barbarossa of gold are in the Cathedral. The remains in three caskets by Religious Europe, Madden, M. To Daniel A Guide (1975), Publishing pp. 140, Inc., N.Y. Co., MacMillan Kings, Story 293; The Three Melchior Balthaser The of (fourteenth by Jaspar, of cen- John Hildesheim and tury), by Margaret B. The Freeman, retold (1955). Metropolitan Art, of N.Y. Museum among displays is considered those "secular" Now figure very origin, in Claus." much "Santa country The came about in this because of a name mispronunciation by others of "Sinte Klaas" or "St. by the Nicholas" Dutch settlers.7 histori- St. Nicholas cally Bishop Myra Lycia was southwestern first The church built in New New Amsterdam —later early 1600's, York —in the Dutch Reformed Church (See, (Calvinist) The Columbia it but was named "St. Nicholas." York, Historical Portrait New Kowenhoven, John A. (1953). Inc., Doubleday Company, City, & Garden New York patron century. saint He was a fourth in the Asia Minor many "Father Christmas." and became children day to be associ- 6th. He came December feast His part gifts the Christmas for children ated with Bishop Myra he the staid From celebration.8 poem, Nicholas, From St. A Visit became, in the famous .") ("T'was Night . . Clement Christmas Before right jolly elf." He filled old 1823,"... C. Moore up stockings toys and then went with children's "eight tiny sleigh" chimney "miniature to his reindeer."9 symbols opinion other secular these
In our significance in view of their lose much Christmas majority Allegheny holding where Court's later approved Christmas next to a set a menorah mayor. message sign from with a and a tree any religion any sign but "endorsement" disclaimed *11 place "liberty." the facts These a salute protections display the afforded the within Waunakee Allegheny. display in menorah question the United us the same We have before ago: Supreme it a decade Court had before States of the First Clause the Establishment Whether including municipality prohibits from Amendment nativity Christmas in its annual scene creche or display.10 display the Waunakee, the case before us Like during displayed Island, had been Pawtucket, Rhode years. Lynch, forty 465 U.S. the Christmas season 8 Saints, Dictionary Penguin Attwater, Pen Donald of Harmondsworth, England, pp. 250-251 Books, Ltd., guin (1970). 9 Encyclopedia, Columbia Columbia University The New (1975). Press, N.Y., p. 1827 (1984). Donnelly,
10 Lynch
v.
668
465 U.S.
then
true ten
Court noted
is
Supreme
the
at 671. What
like
to be
those
essentially
"The
later,
display
years
towns
cities across
in hundreds
found
the Christ-
on public grounds
during
Nation —often
—
Court
Supreme
671. The
Lynch, p.
season."
mas
did not violate
in Pawtucket
display
concluded
as
reach the same conclusion
First Amendment and we
in Waunakee.
to the
made
States
Court
Supreme
Lynch
United
in any
that are
evalua-
helpful
other observations
some
such a
considering
display.
is involved in
tion of what
includ-
district court had found
The federal
city
the creche in the Christmas
ing
to endorse and promulgate
Pawtucket
"tried
.
of the creche has the real
. . erection
beliefs.
with the Chris-
affiliating
City
effect of
substantial
A
beliefs that
this creche
dividend
represents."
tian
Court
Supreme
affirmed
and the
court
appeals
that "In
Clause
every
reversed
Establishment
noting
we must
reconcile
tension
case,
inescapable
intru-
objective
preventing unnecessary
between the
other,
upon
of either
the church or
state
sion
that,
noted,
the court has so often
and the
reality
is not
separation
possible." Lynch,
total
the two
Kurtzman,
v.
(Citing
U.S. at 672.
Lemon
403 U.S.
(1971).
The Court went on to say:
history of
acknowledg-
There is an unbroken
official
government
ment
three
role
by all
branches
in American life from at least 1789. Sel-
*12
this
opinions
affirmatively
dom in our
more
Douglas'
expressed
opinion [Zorach
than
Justice
(1952)]
Clauson,
v.
'We Supreme Being.' Lynch, a presuppose tions 674-675. 465 U.S. at out:
The Court pointed
references to the
with official
history
replete
is
Our
in delibera-
guidance
of Divine
invocation
value and
Founding Fathers
pronouncements
tions and
early
Beginning in the
leaders.
contemporary
day
Independence,
long before
period
colonial
holiday
as a
was celebrated
Thanksgiving
gifts
of Nature
thanks for the bounties
give
Lynch,
'To the God, suggest I Almighty gratitude to our during Scriptures Holy reading of nationwide Day to Christmas.' Thanksgiving period from 2629,58 1160. Stats. Proclamation No. Presidential in this reminder appropriate an especially This is of our troops landing we commemorate when year 6th, fifty years June on Normandy on the beaches *13 at the ceremonies Throughout in World War II. ago 1994) (June atmos- a religious this month Normandy of white includes the thousands is It pervasive. phere of the marking David the graves and Stars of crosses honoring and many prayers speeches and the fallen memories. their to the case applies directly that
In a statement said: the Court in Lynch before us Presidents, and how- city, Congresses like the The ever, significant taken note of a principally has in the long celebrated event historical the display depicts creche in World. The Western long origins of this traditional event the historical Holiday. at 680. recognized as National Id. question whether there a secular The narrow is is display the creche. purpose Pawtucket's sponsored by city display is to celebrate origins Holiday. of that Holiday depict legitimate purposes. are secular Id. at 681. These on the Court page 681, a footnote in Lynch In out: pointed city purposes display contends that the 'exclusively only We hold that Paw-
are
secular.'
for its
purpose
display,
has a secular
which
tucket
Kurtzman,
(1971),
that Lemon
(1981). Here, whatever benefit there is to one faith indirect, remote, religion religions, or to all and an incidental; display of the creche is no more or endorsement of than the advancement recognition and of the ori- Congressional Executive Mass,' Holiday the itself as 'Christ's or the gins of literally religious paint- hundreds of exhibition museums.... ings governmental supported traditional, purely displays the secular extant Even Christmas, creche, a inevi- at with or without would Holiday. nature of the tably religious recall the engenders friendly community spirit with the season. Id. at 685. keeping goodwill Lynch, pp. agree at the Court 465 U.S. We with it said: 686-687, when ironic, however, if the inclusion of a
It would be single symbol particular of a historic acknowledged of a celebration in the event, part centuries, country and in this for 20 Western World Branch, Con- by by the Executive people, centuries, for 2 would so 'taint' gress, and the courts city's exhibit as to render it violative of this Clause. To forbid the use of one Establishment very peo- time symbol creche —at the passive —the taking note of the season with Christmas ple are public public carols in schools and other hymns Congress legislatures places, and while by paid chaplains, would prayers with open sessions history contrary to our be a stilted overreaction day It is too late in the . holdings. . . to our far the coun- reading the Clause on impose a crabbed added.) try. (Emphasis Court Supreme In the United States Allegheny, two holiday displays. dealt with a creche on Grand Stair- placed The first was Courthouse Allegheny County case second was Pittsburgh, Pennsylvania. City-County outside just menorah Chanukah "saluting a sign next to a Christmas tree and Building Third Circuit Court The United States liberty." violated Establishment ruled each Appeals "the the First Amendment because each had Clause of F.2d endorsing religion." effect of impermissible *15 Id. (1988), 655 578-579. Court in an Supreme opinion
The United States of which were con- Blackmun, (parts Justice by written from, separate opinions or curred in dissented O'Connor, Brennan, Justices Stevens by authored each of which concurred or dissented and Kennedy, Justices); all the the result joined some but not by a Court held that the that vote five four the by was A the Establishment Clause. larger creche violated held menorah not. the did majority In in the "creche" was violation of holding "on Clause it was noted the creche was Establishment the 1986-1987 during on Grand Staircase holiday January season from November 26 to 9. The —main," beautiful,"11 was "the "most Grand Staircase It part "most the courthouse. had a public" ruling if had One wonders would be different it been "ugliest" "dingiest" part of the courthouse. a plaque stating, sides and bore on three fence wooden with Society," Name Holy Donated "this Display The the fence. around plants poinsettia red and white evergreen a small county placed also adds, "[T]he court the two bow, behind each of with a red decorated tree manger stood side the along These trees end posts.... than it was.... No shorter slightly and were backdrop or other decorations appeared Claus of Santa figures Id. 579-581.12 the Grand Staircase." on the words angel bearing included an manger Id. 580. In vote a five to four in Excelsis Deo." "Gloria concurrence, the Court a writing Justice O'Connor with was an affront to the the creche display held majority Amendment. First may cele- Lynch sum, government
In teaches form, not manner and but Christmas some brate Here, doctrine. way that endorses Christian in a this line. It has County transgressed has Allegheny way that has the Christmas chosen to celebrate message: Christian endorsing patently effect of of Jesus Christ. Under Glory God for the birth cases, nothing more is Lynch, and the rest of our the Estab- a violation of required to demonstrate in this display of the creche Clause. The lishment therefore, permanently enjoined. context, must be Allegheny, U.S. at 601-602. Deo," "Gloria Excelsis sign, with angel criticism from Justice Black- of much recipient many as to how given
mun. No estimate was Latin understood but observers *16 12 is curious since the for lack of a Santa Claus The concern Lynch case where a Blackmun, author, dissented in the Justice objects House, were reindeer and other secular Santa Claus displayed around the creche. prominently The Court the Court is curious. given by translation said: words,
Indeed,
in
the
this lawsuit uses
as
creche
Nativity scene, make
picture
the
of the
to
its
well
unmistakably
"Glory to
meaning
clear.
religious
the
Highest!"
says
angel
in the
God
God because of the birth of Jesus.
Glory to
creche —
indisputa-
God Christian terms
praise
This
to
-just
is when
as it
bly
sectarian —
—indeed
Allegheny,
in a
Gospel
in the
or
church service.
said
at
U.S.
598.
is,
to God in the
says
"Glory
All the Latin phrase
not
to God
say "Glory
does
because
highest."
sign
Luke,
Even the account
chapter
the birth
Jesus."
fourteen, doesn't
it. It
two,
say
says: "Glory
verse
on
among
earth
men with
highest
peace
God in the
(RSV)
pleased."
whom he is
the angel
Waunakee
case we do not have
In the
it
However,
seems certain the
sign.
majority
with the
have
of the creche even
would
Allegheny
disapproved
offending angel!
without
concurred
Kennedy
approval
Justice
but wrote a
dissent
strong
menorah
joined by
the creche. He was
majority's disapproval
and Justices
and Scalia.
Rehnquist
Chief Justice
White
said in
Kennedy
Justice
part:
County
majority
Allegheny
holds that
by displaying
Clause
violated
Establishment
county courthouse,
'princi-
in the
creche
because
pal
primary
effect'
is to advance
Kurtzman,
meaning
within the
of Lemon v.
(1971).
403 U.S.
612-613
This view
unjustified
Establishment Clause reflects an
hostil-
ity
religion, hostility
toward
inconsistent with our
*17
I dissent from this
and
history
precedents,
and our
constitutional,
and,
is
holding.
creche
of a menorah
reasons,
for the same
On this
as well.
Pittsburgh
permissible
city
of
the rea-
result,
in the
but not
I concur
point,
latter
BLACKMUN's
JUSTICE
soning, of Part VI of
Allegheny,
Government
accepted
an
are
support
edgment,
As Chief
heritage.
and cultural
political
of our
part
v. Tax
for the Court Walz
Burger wrote
Justice
City,
Rather than religion, acknowledges or aids action that some government permits Clause Establishment cen accommodating the recognizing latitude Lynch v. society. in our religion plays tral role Comm 'n New Donnelly, supra, at Walz v. Tax 678; sensi City, Supra, York Any approach 669. less at hostility heritage border on latent tive to our would government require as it would religion, toward only the acknowledge roles to all its multifaceted the detriment of secular, the exclusion and so to religious. Allegheny, 492 at 657. U.S. Clauson, (1952), In Zorach v. for exam U.S. City's public school New York ple, permitted we religious preferences system to accommodate staying by giving option them the its students religious part classes for leaving to attend school for the Court: day. Douglas Justice wrote encourages the state When of our ... it follows best instruction relig- respects For then it traditions. people nature our ious *18 their public service to accommodates the may not hold that it spiritual needs. To a to in the Constitution be find would government show that the requirement groups. to religious indifference callous be who believe preferring That would those Id. who in no over those do believe. at 658. then Kennedy opined:
Justice compelled Amendment New Nothing in the First policy in City York to the release-time establish Zorach, the policy the that served aid but fact particular those sects that offer religion, and young, to the did not invalidate religious education the accommodation. Id. at 658. dissent continues: Kennedy require government not Religious Clauses do religious or
acknowledge holidays these their com- ponent; strong government our but tradition acknowledgment permits gov- accommodation and to do so. Id. at 664. ernment say displays the Respondents religious that distinguishable here are involved from creche in Lynch government are they because located on are property candy not surrounded reindeer, canes, holiday paraphernalia and other Lynch. Nothing part of the were Burger's opinion Chief Justice for the Court Lynch these provides support purported for distinc- Lynch opinion facts, describing After tions. It no mention of either of factors. makes these con- centrates instead on the significance of the creche part of the entire holiday Indeed, season. it is clear that the Court did not aspects view secular subduing religious as somehow message conveyed by creche, majority expressly rejected the suggestion dissenters' that it sought explain away 'to the clear import of 'equated the creche' or had the creche with a Santa's house or reindeer.' Crucial to the Court's conclusion number, prominence, not the type or of secular items contained in the holiday display but the sim- ple that, fact displayed by government during when season, presents the Christmas a creche no realistic danger moving government down the forbidden road toward an religion. establishment of Whether by poinsettias, the creche be surrounded talking wishing wells, carolers, the conclusion remains same, for the relevant context is not the items in the display itself but the season aas whole. Id. at *19 665-666.
It is the clear four Justices in the Justice Kennedy approve dissent would the Waunakee creche.
It O'Connor, seems certain that Justice based on approving the reasons her behind concurrence in the display, permit menorah creche, would the Waunakee she states:
I also conclude that of city Pittsburgh's com- holiday display menorah, bined of a Chanukah a tree, sign saluting liberty Christmas and a does not have the conveying effect of an endorsement of religion. p. concurring.
Id., 632, O'Connor, J., explains why: "[T]he
She tree, Christmas origins, regarded today relig- whatever its is not as a symbol." religious ious She to refers "the nature of the "The Id. 633. of Chanukah." holiday and the menorah holiday display Pittsburgh's here whether question Judaism, of when of a endorsement message conveys in the com- symbol is the only religious the menorah out: summary points she Id. 634. In display..." bined included the up holiday display, which setting In its menorah, city Pittsburgh of tree and the lighted pluralism by liberty the theme of stressed sign bearing the exhibit with a accompanying the " season, holiday 'During this message: following Pittsburgh liberty. Let these city salutes festive keepers we are the remind us that lights flame Ante, at 582. liberty legacy and our of freedom.'" of This convey city sign intended indicates that free- pluralism message own distinctive its display of a Christmas By accompanying its dom. sea- symbol holiday the Christmas tree—a secular adding liberty, by a a son—with salute holiday cele- symbol a Jewish also from I year, conclude roughly the same time of brated at city not that the general, did endorse Judaism conveyed message plural- but rather during holiday ism and freedom belief season. added). (emphasis Id. at 635 feet and next to eighteen high The menorah decorated Christmas tree. forty-five foot This the Waunakee creche. parallels setting large The creche is surrounded Christmas trees and as in the has a "salute to lib- Pittsburgh Board that is even more inclusive erty" by Village and demonstrates the non-endorsement inten- clearly tions of the Board. Village *20 Season, During Holiday Village liberty. lights Let
Waunakee salutes these festive keepers and times remind us that we are the liberty legacy and our Whatever flame of your religion of freedom. beliefs, enjoy holidays. or Village
Waunakee Board' added.) (Emphasis It meets the test clearly described Justice O'Connor to meet that apparently purposely drafted agree We with the court of requirement. appeals that Waunakee met the test.
Thus, we conclude a of the majority present court approve would Waunakee holiday display. The Plaintiffs' in the case before us have tried to attack the of the Waunakee meaning sign as only those with greeting religious faith because of its state- ment, "whatever or your religion beliefs enjoy holidays." The plaintiffs' argue here as did in the they court of appeals last sentence "runs quoted afoul the Endorsement test by making adherence to a religion relevant to a in the com- person's standing because it munity" "sends a without message" people religious beliefs "that of the enjoyment holidays somehow related to or to beliefs which have religious meanings." Plaintiff "This is based on a says: literal interpretation your relig- words 'whatever ion or beliefs, is directed to enjoy holidays' people have beliefs,' who not to 'religion non-believers."
The court of appeals was correct when it stated: beyond We think that stretches the point reason. may The sentence be equally, per- read if not more suasively, greeting to send a persons who have a professed religion any kind as well as to those whose beliefs —whatever they may be —embrace other spiritual precepts, or none at In all. other they greet words and treat both believers and non- believers equally. We do not see such a constructed ambiguity in any way diluting the secular con- *21 it turning into sectarian sign, much less tent religion beliefs. endorsement 589 cor- Allegheny page in at majority opinion The sense as our in the same word "beliefs" used the rectly it: understood appeals court of to name have numerous religions too adherents home, as have those their the United States made (Emphasis exclude expressly whose beliefs added). picking! aren't worth
Some nits lower federal subsequent do not find several We Allegheny the Plain- by cited following court decisions facts they involve Mostly in very helpful. tiffs this case in the case before from the facts deviate materially us. Delaware, F. Supp. v. County 726 In A.C.L.U. 1989) (S.D. (cited Plaintiffs), Ohio E.D.
184, 189 lawn violated a creche on courthouse Court held that A "peace five foot evergreen Clause. the Establishment ninety Christmas decorations was tree" with located only and was the secular from the nativity display feet (There was displayed. the Christmas season aspect case.) in menorah Allegheny "Liberty" sign no district court said: display nativity scene The Court concludes that Court's decision Supreme runs afoul of the display context of the County Allegheny. The County nativity like more scene Qounty the menorah Allegheny than nativity Lynch. or the scene Allegheny from The facts in A.C.L. U. are different those very in Waunakee. display in we have noted the Waunakee does
As given approval of the meno- conform to the reasons Allegheny. rah in direct our attention to the case of
The Plaintiffs (7th 1991). Small, F.2d Cir. Doe v. *22 quite facts in that case are unlike case before us. by says: description given court The years during the sea- In most since Christmas Ottawa, passer-by traveling in a on LaSalle son edge of the Park along Street the western would see measuring 8 following paintings, each feet that form height, displayed inches in two lines a spanning "V" most of the Park's west side. No mat- day night, paintings ter whether it was the or illuminated times, being at all clearly were visible night by lights. at street life, paintings together story tell the of the cru- Christ,
cifixion and resurrection of Jesus as told gospels the four of the New Testament. entirely than the facts in
These facts are
different
(with
In
decision,
the case before us.
a two to one
Coffey,
strong
by Judge John
a former Jus-
dissent
L.
Court)
of this
the Seventh Circuit Court declared
tice
by private organiza-
Doe,
that the
owned
"Jaycees,"
tion, violated the Establishment Clause.
(7th
(en banc)
grounds
on other
We conclude that cases from lower federal courts very Lynch Allegheny help- and after are not before present composition of the Court ful. Because of thorough analysis given and the discussion and Lynch Allegheny on facts closer to the Waunakee case, found in those the most authoritative sources are trial court us that persuades analysis Our cases. be in the Waunakee case must court the appellate no of the Establishment There is violation affirmed. Clause. ask that we declare
The Petitioners 18 of our state I, Art. sec. violated Waunakee equivalent This Wisconsin's Constitution. Clause the United and Free Exercise Establishment It reads as follows: Constitution. States worship Almighty God right every person to shall never to the dictates of conscience according compelled any person be infringed; nor shall be or attend, any place worship, support erect or consent; ministry, nor shall any without maintain with, rights of of, or interference any control any given preference be permitted, be conscience or modes of any law to establishments *23 money from the worship; any nor be drawn shall societies, religious or treasury for the benefit theological seminaries. religious or and recognizes Constitution The Wisconsin reads as follows: of God. The Preamble idea accepts We, Wisconsin, grate- people PREAMBLE freedom, for in order to Almighty God our ful blessings, perfect govern- a more its form secure ment, tranquility promote the insure domestic welfare, do this constitution. general establish I, 18, leads An in Art. sec. language analysis not does to the conclusion that Waunakee its violate demands. it is not a place worship, is not
"ministry," given "any religious no "preference" or modes of nor was worship, any establishments"13 from the for the benefit of treasury any drawn money religious theological societies or for or religious any seminaries.
Even
the United States
Court's
applying
Supreme
of "establishment,"
already
we have
con-
interpretation
"endorsement"
here.
cluded that
was absent
The Plaintiffs cite State ex rel.
v. Nus
Reynolds
(1962).
baum,
148,
17 Wis. 2d
We organizations, and, stipu- with under the facts, nonpublic schools, all of the practically lated pupils whose are to be under transported act, operated by religious organiza- attacked are Furthermore, adoption tions. at the time of the 1848, our 'seminaries' was constitution word State ex synonymous with academies or schools. rel. (1890), 177, 215, Weiss v. District Board 76 Wis. N.W. 967. Other courts have held that the term "seminary" primary secondary includes schools. Id. at 156. adopted, At the time our Constitution we must "particular system
assume the term referred to a of faith and church, worship recognized practiced by particular sect, Dictionary, supra, p. or denomination." Black's Law 1523.
53 ruling people of Wisconsin As a result 23 Art. in to add sec. to 1967 the Constitution amended I which reads: legis- prohibit the
Nothing this constitution shall in safety and welfare of providing for the from lature chil- transportation of providing for by children private or any from school parochial to and dren learning. of institution "ministry" supporting not
The clause about barring provisions legislature by considered opening prayers chaplains paying for 13.125 in sec. Assembly. course, consis- is, This Senate practice United followed the same tent with Representatives. and House Senate States by being nothing I, violated 18, Art. sec. findWe display. Village Christmas seasonal ofWaunakee assuming that this even reach this conclusion We may provision than be "less flexible" in the last clause Reynolds, rel. Wis. State ex 17 First Amendment. at 149. 2d appeals refer- as noted our court
However, ring before us: Art. sec. 18 the case I, is, course, the Wisconsin coun
The cited section the federal Establishment Clause. State terpart Thompson, ex v. rel. Holt 659, 676, 66 225 Wis. 2d " (1975). [the] words used 'While N.W.2d differ, may both the federal and state constitutional provisions relating religion to freedom of are pur operate to serve same dual intended pose prohibiting the 'establishment' State religion.'" the 'free exercise' protecting Nusbaum, exrel. Warrenv. 316, 332, 198 55 Wis. 2d (1972). 650, N.W.2d *25 result, interpret I,
As a we apply Art. sec. 18 in light of Supreme United States Court cases inter preting the Establishment Clause. American Motors Corp. Dept., v. ILHR 14, 29, 91 2dWis. 286 (Ct. 847, App. 1979), N.W.2d 854 rev'd. on other (1981). grounds, 337, 305 101 Wis. 2d N.W.2d 62 We have, course, applied considered and those cases arriving in at our conclusion that the Waunakee display passes federal constitutional muster.
And while the Kings have referred language us to an earlier State ex Supreme case, Wisconsin Court Nusbaum, Reynolds rel. v. 17 148, 165, 115 Wis. 2d (1962), suggesting N.W.2d 770 that the Estab lishment Clause 'lends itself flexibility to more interpretation' 'religious than the benefit' clause of Constitution, the Wisconsin the Wisconsin court has not elaborated on that in any statement subse King, quent case cited to us. 175 2dWis. at 318-319. agree analysis. We with this plaintiffs argument Counsel for conceded at oral that we must look to the federal Establishment Clause interpreting cases in Art. I, sec. 18. We conclude there is no violation of our State Constitution in the case before us and no violation of the Establishment Clause of the First Amendment of the United States Constitu- appeals. tion, we therefore affirm the court of holiday. Christmas is a national and state 230.35(4)(a), provides part: Section Stats., "[t]he agencies government offices of the of state shall kept open... except... following holidays:... be 2. Friday, period after noon on Good in lieu of the specified in s.895.20;14... 7. 24; December 8. December 25;.. provides Section part: 895.20 costs Waunakee holiday
The six week it is ruling Under our Village approximately $500. It also de minimis. expenditure. a proper the state holiday given by Christmas day The two $12,000,000.15 approximately "costs" *26 is a recogni- in the Waunakee case we have What in birth its historical origin tion Christmas has that of that Lynch in recognition As was noted of Jesus. a "secular pur- a scene constitutes nativity in history of purpose" "secular requirements that meets pose" see over Lemon, What we Lynch. cited set forth of a mixture of pre-Christian year history a thousand that has holiday to the and cultural additions elements personages originally "religious" converted often usage. through into ones symbols secular to desire by society's of this mixture created Out have seen its its heritage hopes celebrate —and —we of his- that are "religious" part elements some of interpretation meet the most recent do fact tory i.e., test. Clause, the endorsement the Establishment as endorsement. is not the same Recognition in Pittsburgh sign to Waunakee liberty" "salute point makes that clear. of how courts must is an example
This vindication "majority." even the rights enforce and protect "minor- us, individually, All are members various on the depending ity" groups "majority" groups, Friday Holidays... period p.m. from to 3 Legal On Good 11 a.m. worship.... uniformly purpose observed for the shall be payroll for figures are based on the state month These $188,084,000. "WISCONSIN STATE AND 1991 of October PAYROLLS EMPLOYMENT AND LOCAL GOVERNMENT for 1993-1994," Book, Blue 1982-1991. State Wisconsin October p. 719. All to issue at stake. must look the courts for protection This case is a good and vindication. example. the Court. —The decision of the court of
By appeals is affirmed.
HEFFERNAN, CHIEF JUSTICE (dissenting). From 29, 1990, November to January 1991, the vil- of Waunakee lage seven seven and one- displayed half foot creche in a city near park, lighted evergreen trees and a sign saluting liberty. The creche is a relig- ious an event symbol portraying central to the Christian faith. By the creche in cir- displaying these cumstances, village Waunakee pays homage faith, one religious thereby expressing preference that faith. This action is in I, violation of Article section 18 of the Wisconsin Constitution, states, which "[N]or any shall... be preference given by law any religious *27 establishments or modes of Because the worship." majority otherwise, concludes I I dissent. Because have determined that the is in violation of the Wis- Constitution, consin I do not discuss whether the display also violates the United States Constitution.
This court has long
I,
concluded that Article
sec
tion 18 of the Wisconsin Constitution provides greater
protection
than do the
liberty
religion
clauses in the First Amendment
to the United States
Nusbaum,
Constitution. See State ex rel.
v.
Reynolds
17
State ex rel. War
148,
(1962);
Wis. 2d
mandated
Amendment."1
the Fourteenth
by
analysis
Adopting
forth
the court
set
majority
appeals,
the United States
states
interpreting
Supreme
the Establishment
Court cases
interpret
I,
Article
section 18.
used to
are to be
Clause
protection
By
that the
statement,
court decides
this
greater
by
provided
I,
no
than that
section 18 is
Article
provided
Free Exercise
the Establishment
appeals
support,
discussion,
the court of
Clauses. For
quotes
majority adopts,
rel.
State ex Warren
which the
Nusbaum,
332,
58
Reuter,
State ex rel. Warren v.
In two cases decided after State ex rel. Warren v.
purpose" language
Nusbaum, the court cites the "dual
applies
Supreme
and then
United States
Court cases to
interpret
the Wisconsin Constitution. See State ex rel.
Authority
Lindner,
Wisconsin Health Facilities
v.
(1979);
145, 163-64,
2dWis.
We would have to provisions protec- constitutional to conclude that the exactly tion I, accorded under Article section 18 is provided by same as that the First Amendment to the language United States Constitution. The of these two provisions very pro- I, different. Article section vides: *29 worship Almighty God every person to right of never of conscience shall
according to the dictates compelled to any person be infringed; nor shall be or any worship, of to attend, support place or erect consent; nor shall any ministry, without maintain with, rights of, of or interference any control given or be permitted, any preference be conscience or modes of any religious to establishments by law from the worship; any money shall be drawn nor societies, or religious treasury for the benefit theological religious or seminaries. in the First Amend- contrast, clauses
In provide: the United States Constitution ment to respecting no law an estab- Congress shall make the free exercise religion, prohibiting or lishment thereof... greatly. language provisions of these two differs support constitution of Wis- our oath
We violate by provided protections consin if we conclude that Existing provisions law identical. case these two are provisions require interpret in an us to the two does not Therefore, I consider whether the vil- identical fashion. lage I, violates Article section of Waunakee's Constitution. considering of the Wisconsin begin village I whether preference for the faith Waunakee shows a by exhibiting Christian present case, the creche stating, contrary portion I, to the of Article section any any preference by given by "[N]or law . shall . . worship." I first establishments modes symbol government that the look to the nature disputed village displays. It cannot be Waunakee religious symbol portraying an is a creche central to the Christian faith. Christians believe event son, Christ, that God sent his Jesus into the world to be the Savior. The annual celebration of Christ's birth is days year one of the holiest for Christians. Chris- Mary gave tians believe that birth to Jesus Christ in a symbol stable Bethlehem.2 The creche is a of Christ's *30 any sug- birth and has no secular Indeed, connotations. gestion denigrates that the creche is secular nature religious symbol the both and the Christian faith. represents Because it an event central to faith, their symbol understandably the creche is a that Christians revere. representa-
The Waunakee creche is a traditional figures tion of the stable at Bethlehem and contains baby Mary Joseph. Figures shep- the Jesus, and of the Magi herds and are located near the stable in an worship. Atop nearby flagpole attitude of a is a five- pointed symbol star, a of the star of Bethlehem. purposes
For of the No Preference Clause of the significance Constitution, Wisconsin the of the creche religious symbol precise problem. as a is the village government displaying repre- Waunakee is not aspects sentations of the commercial of the Christmas nativity appears derive, part, scene at least from Gospel Luke, the Christian which states: taxed, every [A] city. ll went to be one into his own Joseph up Galilee, city And also went from out the of Naza- reth, Judea, city David, Bethlehem, into unto the which is called (because David) lineage he ofwas the house and Mary espoused wife, being great To be taxed with his with child. was, that, they there, days And so it while were were accomplished that she should be delivered. brought son, wrapped And she forth her firstborn him in swaddling clothes, manger; and laid him in a because there was no room for them in the inn. 2 Luke 3-7. sleigh rein- Claus with his
season, such as Santa exhibiting village government not is deer. The religious explain symbols in museum to Christian By heritage portion dis- of Waunakee's citizens. playing in a and one-half foot creche a seven seven paying village park, village tribute ofWaunakee honoring aspect of Christmas village of Christian faith. The residents religions worship God in than who other Waunakee Christianity, do as well as residents who not believe position placed God, of outsiders when are symbols. pays homage government to Christian Such expression preference for one action is an the No Clause of Wisconsin and violates Preference Constitution. lighted evergreens do near the creche
The three change display to one is secular in nature. not this evergreens representa- lighted if seen as Even are *31 they aspect Christmas, are tions the secular holiday image religious that of the Waunakee secular by displaying lighted honors a creche. The addition of display an inform- trees not turn the into exhibit does ing religious of a visitors of the secular content holiday lighted recognized trees, in the area. The each likely twenty height, feet in additional atten- over draw village government's display religious to tion the nullify symbol. message the The trees do not the village choosing is to honor Christian beliefs. liberty" sign by village
The to "salute added the negate government preference also fails to the expressed through Christianity display.3 the creche large display is true —a Rather, reverse of an the important religious symbol, lighted near that are trees sign The states: religious representations same most secular at expressed holiday, negates that the vil- statement the saluting liberty. lage government me that It seems to really village government to "remind us wished if the liberty keepers and the of the flame are the that we legacy display they not limit the freedom", would display symbols. religion's does not The Waunakee one society pluralistic message live in a that we send a relig- his or her is free to choose each individual which display whole, Viewed as a or nonbelief. ious beliefs village government celebrates the Waunakee set out liberty practice only faith. Christian portion violates I also conclude that any 18 which states "nor shall I, Article section treasury money for the benefit of from the be drawn to the The was donated societies ...." village village Nonetheless, must of Waunakee. display, up expend put and take down funds to expenditure Although display. is not to store the drawing money prohibiting large, does the clause exception. Guarantees of minimis not contain a de religious subject liberty minimis not be to de should reasoning. legalistic
During The HOLIDAY SEASON Village of Waunakee Liberty Salutes Lights Let These Festive That We Are & Times Remind Us Liberty Keepers And of the Flame of Legacy Our of Freedom. Whatever *32 Beliefs, Religion Your
Enjoy Holidays Village Board
Waunakee 63 interpreting provisions of the Wisconsin When Constitution, this also should consider intent court the historical context which the of the framers and The the 1847 consti was created. record of constitution very convention contains little discussion of tutional preference I, 18, section and no discussion of the Article funding See, 4 Constitutional Series: The clauses. (Milo M. 228, 312, 334, Statehood 713-15 Attainment of 1928). ed. Quaife early court, an
However, decision of this State ex Eight v. Bd. Dist. No. rel. Weiss District School (1890), Edgerton, 44 N.W. sets forth Wis. existing explanation of at the time the an conditions wrote the constitution. Weiss framers Wisconsin may court states these conditions have influenced prohibition X, section 3 on sec- inclusion Article public I conclude that tarian instruction in schools. an understanding of historical is these conditions relevant any interprets portions time this court of the Wisconsin governing religious Discussing Constitution liberties. immigrants Wisconsin, the court states: nearly immigrants from the countries came all Europe, largely Germany but from and Ire- most intelligent, class, they industrious,
land. As a were honest, and the devel- thrifty just material — They of a state.. .. also opment new were Catholics, Jews, Among and sectarian. them were many and adherents Protestant sects. These immigrants cordially welcomed, it man- were ifest the convention framed the with constitution reference to them to attracting Many, Wisconsin. most, perhaps immigrants of these came from coun- tries which a state maintained and enforced, while some of them were non-conformists resulting and had suffered under disabilities *33 religion. rejection of the established their from to cast their lot tempting more inducement What held out to them than the have been with us could guaranties to the of the that, in addition assurance way, worship and of in their own right of conscience their children were free district schools which the educated, ground, common . . were absolute to be . instruction, and with it secta- . . . sectarian where they had smarted in intolerance, under which rian enter? Such were the country, old could never the surrounding the convention which circumstances them, light In the the constitution. framed by its members of lively appreciation with priceless and the sectarian intolerance horrors of freedom and religious and sectarian perfect value of say that sectarian is it unreasonable equality, excluded, to the end that was thus instruction Catholic, Unitarian, or Uni- Jew, or or child of the compelled to versalist, Quaker should not be passages scripture reading to the stated listen giving the lie to the accepted by are others which and them- parents and belief of their religious faith Weiss, 197-198. 76 Wis. at selves? that the framers wrote
This indicates history an toward eye attracting constitution with Wisconsin that by ensuring government settlers to Wisconsin or content of religious prac- not dictate the form would 18 in I, must Article section interpret tices. I believe we maximizing religious the framer's intent of accord with The conclusion and freedom of choice. liberty of Waunakee's violates No village that Constitution best Clause of the Wisconsin Preference furthers this intent. Weiss, lesson. In teaches another important
Weiss
the Edgerton
Catholics with children attending
Roman
reading
Bible
challenged
practice
schools
public
that
stated
parents
In their petition,
in the school.
Bible, the King
a version
reading
were
teachers
an incor-
believed to be
Catholics
version,
that
James
Weiss,
Further,
Wisconsin consistent with every person's right, guaran- entirely teed that same "to God by provision, worship Almighty to the dictates of conscience." Under the Wis- according Constitution, citizens of a consin Waunakee have right or inside outside to creches constitutional right They have the also homes. their right religious symbols. other David and Star of worshipping God is method of chosen one's own follow that decision diminished, enhanced, not preference express government not must Waunakee religion. any symbols one for the above, I dissent. set forth the reasons For Justice SHIRLEY to state I am authorized S. opinion. dissenting joins this Abrahamson