Reverend Thomas B. Allen v. Rogers C. B. Morton, Secretary of the Interior

any proposal for retention of Govern TAMM, Before LEVENTHAL Judges. ROBB, with the would Circuit connection ment * prefer Judge clause, withhold Leventhal while he would is of view that lisliment pending respect any pronouncement he in what a new on that issue does not discern regulation any regulation comports require- emergence and of shape. principles legal controversy take of neutral non-discrimin- atory run afoul criteria could of the Estab- analysis. accompanied proposal propriety relevant

have to to our plaques. appropriate three-part test is well estab lished, as Powell stated re Justice Mr. further Reversed and remanded for cently Nyquist, supra, proceedings. 772-773, 93 at 2965: Judge Opinion TAMM filed Circuit Judge ROBB concurs. Circuit three-part test defined now well [T]he emerged from our decisions that has Judge. product derived considerations is a Circuit TAMM, sweep the Establish- from the full Hickel, for Peace Women Strike V; together Taken Clause cases. U.S.App.D.C. F.2d pass dictate that decisions these dealing right a decision the Establishment muster under property, owned to Government access first, question, must Clause law Judge Leventhal noted that the Govern legislative clearly secular reflect a co-sponsorship ment’s of the Cnristmes Arkansas, Epperson purpose, g., v. e. “[might] of Peace raise more 266, L.Ed.2d S.Ct. 21 393 U.S. 97 [89 questions than it answers.” One second, pri (1968), must have a 228] relating questions, specifically those mary nor neither advances effect that to the Amendment’s establish First religion, g., v. e. McGowan inhibits clause, ment and free exercise has been 420, Maryland, U.S. [366 tortuously wending way through the its (1961)]; 393 6 L.Ed.2d School 4, 1969, today July courts since Abmgton Township v. District of hopefully disposition. reaches final Mr. Schempp, 203 S.Ct. [83 374 U.S. recently Justice Powell has noted that (1963), and, third, 844] 10 L.Ed.2d arising cases under First Amend government en must avoid excessive “Congress ment clauses shall no make tanglement religion, g., e. Walz respecting- law an establishment re Comm’n, S. v. Tax 90 [397 U.S. ligion, prohibiting the free exer (1970)] Ct. L.Ed.2d 25 697] thereof,” presented cise have “some Kurtzman, Lemon S. See 302, v. U [403 perplexing questions the most to come 612-614, L.Ed. 29 before this Court.” Committee for Pub Richardson, (1971)]; 2d Tilton 745 v. Religious lic Education Liberty [91 S.Ct. 2965, Nyquist, v. 756, 760, (fooinotv L.Ed.2d7 omit 90] (1973)- 37 L.Ed 2d 948 ted.) case, Thus unhappily anthropomor we phize, similarly disposed is perplex, confuse, and frustrate, even Purpose so I. sensitive complex pi-,- are the issues -'<>w it determining ,'pn;'po,‘-'-”n i:] Wnen unduly yve quantify ,,.n We will not uuv this situation A end we vbh un opinion with a re-recitation of facts al problem, Judg« usual 'tuai ->? Levc ready ably extensively pointed set out opinion has out in his we are Judge opinion Leventhal’s herein, analysis unable to “the follow familiar opinion of this remanding court legislature” of the intent of a and rather very action district court purposes for must “discern the of activities fact-finding, further Hickel, Allen v. 138 of officials of the Executive Branch.” U.S.App.D Qur .C 31, 424 F.2d de novo look at the record has con "ou, and in tU opinion district- considering from vinced us when both the whLh appeal was taken. Allen purposes stated and the Morten, 'f>DC)071\ r~n/>T,s F.Sop.', of the Government officials in „iio We will opinion structure the py.°t within the volved over flecting two re decades as framework of purpose, primary upon ef flic Govermentv ~dhor (cid:127)mvi, sí.ytfd. fect, and entanglement excessive tesis, purpures, tc thus" reiterating i"vo,'rmi,f-i,t only Pag- those specifically t'im-s C-uvc-iui^rA’s thn clearly aspects secu- traditiоnal national “reflect our histo Peace [s] eant ry purpose.” associated with Christmas.” While lar . promote the creche is utilized neither outgrowth itself is an profane any religion, nor is “intended Community National traditional reverential heri to the Celebration, Tree and as tage aspect of Christmas.” amply evolved record demonstrates bolstering express purposes These are vehicle for tourism 1954 as a pageant a more both the existence the District of Columbia.1 On philosophical continually ex- a whole and the one level creche as of its many integral they pressed purpose parts, been of mani- been throughout festing consistently ‘Peace stated this “nation’s desire for histo ” Pageant. ry Earth, nothing find Men.’ We can Goodwill Toward year the record to us that is conducted each convince approximate involvement, which is sim time Government’s celebration Christmas, legal holiday cooperation ilar in kind to its with other national events, g., e. ex- national is meant to serve “a celebration visible pression Cherry Festival, aspiration Blossom this Nation’s President’s Cup Regatta, understanding peace, foster friend- and the National Inde pendence predicated upon ship Celebration, between the nations of the world any other, purpose.3 People.” and the American The creche non-secular We obviously sym- note, propriety itself, however, while “the bol, part purposes may of a “the immunize commemoration of scrutiny celebration as a further a law which ei Nation’s of Christmas from holiday, by primary depicting national the has a that advances all ther effеct Morton, holiday F.Supp. 1088, people 1. Allen v. season sur- See 333 celebrate the purpose (D.D.C.1971), rounding to As such its 1092 and the references Christmas. objectionable that of a the record contained than therein: is no more purpose stamp reproduction Pageant, postage bearing of a basic of how- a [T]lie the admittedly Government-spon- clothed, always painting ever been aor illustrating provide display secular It was to a colorful various museum sored during holiday season event the Christmas which customs. Dickerson, Washington attraet visitors Associate would thereby to Affidavit Russell See Capital Director, Region, Regional mer- increase the business of local National para. Service, Ex. 1. 3: chants. Park Def. National its offi- The National Park views Service Story Pageant 2. See The of the Christmas Pag- cooperation cial with the Peace, 2, Program, Exhibit, 197Ó ani the PI. production Peace, Inc., in the eant for plaques similarly in text of the titled and making in the Christmas grounds Pageant stalled on on the of the Park) Ellipse (President’s area available recommendation, reprinted our 333 F. at request, organization, in on its to that Supp. agree Judge 1095 n.6. We Lev proper event, as Na- connection enthal ing that caution taken in utiliz must he simi- We Park Service functions. tional larly language they plaques, since cooperation pri- to other extend our light litigation in written of this pro- sponsor organizations vate which susceptible self-serving thus state are to recognized officially national duction However, ments. we their mes find that Cherry events, as the such celebration essentially sage is as that same consist Cup Festival, Prеsident’s Re- Blossom gatta, past ently given Programs in the from (Fourth Independence the National years. See, g., 1965, 1966, 1967, 1964, e. cooper- July) likewise Celebration. We 1968, Programs, 51, 53, Ex. Pl. Def. National-Capital-Park-con- in ate other 17, 18, 15, Ex. Capital. in the Nation’s nected events officially Hickel, U.S.App. recognized national celebra- in Allen v. We noted 944, following particular 31, (1970), in to attract F.2d printed tion events D.C. Capital Park areas thousands of reference to material in an official National enjoy pamphlet: enabled to visitors who thus of Peace very park language Pag- recreational areas in the This as to those aspects Congress in- has directed to which eant sets forth that the creche was simply group primary dedication. See U.S.C. to be one a of ob- their tended jects 50.19(d)(2). 20-20g; American § assembled show 36 C.F.R. §§ how effect advan- en- a ‘remote and incidental’ tageous religion, excessive or which fosters Ny- tanglements and State.” institutions.” Church between supra, quist, Nyquist, supra, at 93 S.Ct. 93 S.Ct. U.S. at analy- It not in our matters 2966.4 n. 39. may sis whether be considered widening primary effect test be- Primary II. Effect (although yond previous precedent Mr. participation in the The Government’s Justice Powell’s discussion should belie twofold: Various Gov Nyquist, consideration, supra, see play in role ernment an active officials 2955) n. 784 U.S. at management organization, oc us our the record review convinces cupying positions two the five limited involve- Government’s Committee, Executive and two of Peace can have Program positions important ten on the no more than “remote and incidental” Committee;5 *(2) the “co Government advantageous effect institu- sponsors” provides la tions. assembly, bor assistance disman cleaning McNair, tling, In Hunt and restoration along 734, 743, area, with various 37 L.Ed.2d materials Pageant. Supreme equipment Court iterated use guidelines expense involved is more than nominal be followed adminis tering example, primary —in effect test: cost der the has the “direct and advancing religion,” nal but on primary effect fra, volvement we will consider primary sponsible for its sense fect of its used to cidates amounted to former frained from Government for Peace, 1968, however, the action assembly, storage, creche. The Christmas co-sponsorship. multiple “primary” effects, that the Inc. The whether the action type light entanglement purposes effect financial assistance and depends bears recent the creche supplying any constitutional Government action nearly participation use.7 As of discussion Nyquist opinion legitimately immediate services it or maintenance of cost test discussed in Government’s $72,000.6 conversely “only on whether the assistance we find the only propriety infirm un electricity solely expended effect of any way has re secular in the nomi Since may elu ef re in See tionately tions are that 734, ble,” permeation, trols mary even volvement The first of these 680, activity specifically religious activity in an have a religion functions are otherwise sive that tution gious mission or Nyquist, Aid 91 93 S.Ct. religion Tilton v. Richardson, 403 U.S. if (whose effect of S.Ct. while the second that normally functions separable, with the primary ^[1] see substantially religious extensiveness 2091, 2097, can so supra, 2868) its substantial when it flows to aiding Hunt, nonetheless have subsumed “religious categories recognizes religion are effect ^[2] without degree 413 U.S. at permeate supra, and secular func- in fact when it Government recognizes 29 secular portion vary propor- is so L.Ed.2d 790 and secular proper 413 thought advancing a insepara- an insti- activity. funds a specific setting. 774, atU.S. perva- a of its reli- that con- 672, pri- in- 93 compact develop- 4. a For discussion of the See available record. purpose, primary effect, Program, and exces- of Peace PI. entanglement Note, sive tests see 2. Su- Ex. preme Court, Term, 1, 85 Harv.L.Rev. 1, 6. See Def. Ex. (1971). attachment 171-173 figures represent 5. These 1, the breakdown for See Def. Ex. E. attachment the 1970 and are most recent 681, (1968). supra, Tilton, at U.S. and 2966, maintenance where at S.Ct. 2097, specifically elementary 91 at the Court parochial S.Ct. grants repair re the Court Allen] down took note that secondary “[in struck and schools religiosity paro stated, at- to assume that fused because, “[n]o as the Court in. elementary secondary payments schools to chial tempt restrict to made upkeep necessarily permeates educa the secular to expenditures related those they provide.” exclusively has secular tion that The Court used of facilities rejected possible specifically such a also twice purposes, think it nor do we religion-ori- proposition respect to Church-relat of these the context within higher learning, impose restric- ed institutions Til ented institutions ton, supra, 680-681, 91 403 U.S. at S.Ct. tions.” 663, Hunt, supra, at 413 U.S. yet ‍​​‌‌‌​​‌​​‌​​‌​​‌​‌​​​​​‌​​‌‌‌‌​​​​​​​​​​‌‌‌‌​‌‌‍find Supreme has Court 2868. In Tilton enu S.Ct. the Court constitutionally de- institution aid to an might merated factors which suffice religion permeated the so fective because invalidate aid to educational аnd sectarian secular that the institution category institutions under this inseparable.8 It not- functions were Among test. effect these were be- however, very distinction ed, real required admissions, restrictions on at degree permeation ex- tween the religious activities, tendance at pelled com elementary parochial and second- ists in obedience the doctrines and compared ary to Church-relat- schools dogmas particular required of a faith, higher learning. See ed institutions doctrine, theology instruction in Hunt, supra, 93 S.Ct. 413 U.S. general purpose propagating par n. supra, 2868; at 776 Nyquist, religion.10 ticular 2967; Kurtz- Lemon 93 S.Ct. 615-620, man, recognize compar 403 U.S. While we Yet, even judice 29 L.Ed.2d sub isons the situation parochial ele- of aid to in the instance the aid-to-education decisions of the Su schools, secondary preme institu- mentary misleading, Court can be we do referred tions the Court not believe that the record shows the which type Lemon, supra, 403 U.S. institution involving with which the Court was concerned “substantial spoke religion activity form “in purpose,” aid in the when it of one permitted pervasive portion is so substantial secular textbooks Allen, re Board of Education v. 236, functions subsumed ligious governing body mission.” The 20 L.Ed.2d 1923, interpretation 20 L.Ed.2d 1060 8. Our of the “subsumed” test U.S. proposition automatically disqualifies any (1968), is seem belie the one which would to separating is the secular from sectarian form of assistance or Covernmental involve that particular impossible. a in ment with institution because all instances the institution is so sectarian that even what which the Court noted of the factors Some normally would be considered its secular l,eti-on reaching in ore in conclusion functions in a mis subsumed prorimity parish churches, the reli- to Richardson, sion. 680, v. Tilton 403 U.S. statutory gious symbols adorning and 2091, 2097, 29 L.Ed.2d 790 buildings, religiously oriented extra- school the Court stated : activities, and the dedicated ef- curricular concept appellants’ position n Under comprised ai>proxi- nuns of who forts depends validity proposition on the of the provide mately of teachers to two-thirds religion permeates that so the secular edu- atmosphere in instruction which provided by colleges cation church-related proper parts are natural and vocations and universities their that various life in such schools. These of the in in- secular educational functions are fact powerful “a schools make the characteristics separable. transmitting the Catholic faitli to vehicle for Supreme recognized pa Court has that generation.” the next elementary secondary rochial schools are Richardson, approach closely 10 403 U.S. institutions which this lim Tilton See it, although Allen, L.Ed.2d Board of Education v. S.Ct. the Christmas association with the ty activi —an Peace, Inc., non-sectarian, classify of “substantially is a non- we secular” partisan, non-profit organization —may civic prohibited nevertheless be be organized promoted by ostensibly Wash- cause its with an contact ington Trade; aspect Board of its thereof, reason “sectarian” the creche.12 existence ligious is furtherance a re- not bluntly Government, course, but, speaking,

mission, comply with in must the mandates the furtherance tourism the Dis- Columbia; accomplishes in it trict of through it this Constitution. Where becomes subject Pageant celebrating volved in activities that are na- legal scrutiny First holiday Christmas, tional Amendment it must take dedi- pains peace understanding cated limit its in involvement such a way following it results no im the admirable theme “Peace that in “direct and advantageous Earth, Men;” mediate” effect to reli Goodwill Toward gion. so not subsumed reli- Failure to limit involvement itself is in (as giosity, only Nyquist, supra) creche, can render such but rather the religious symbol constitutionally celebration, defective, involvement in the is degree religiosity permeat many integral and the displays one of and is ing only activity manifestly emphasize utilized which it is involved religious heritage bearing aspect can have a direct on what con Christ- holiday; although good it finally, mas trols must As the mo- establish. Court Hunt, impermissible actions, supra, stated cannot tives save Supreme 93 S.Ct. at Court has clear 2875: made that analysis of activities and reason for opinion Court’s Lemon being bearing can have a direct on the plurality opinion in Tilton are permeation religiosity any grounded proposition on the that carrying institution.11 It would be degree entanglement arising from logic primary test an un- effect inspection of use facilities as to varies warranted to find in extreme this case large measure with the extent appellant’s proof the creche religion permeates which the institu- patently religious symbol was a itsmet tion. showing burden of that the Although language appeared religion “an institution in is so pervasive portion entanglement, substantial discussion excessive we its functions are subsumed in the reli- find accentuates the fact that we are gious Hunt, supra, balancing mission.” considering See involved in a test, degree variables such at 746 n. sectar- at 2876. S.Ct. ianism in the institution оr event finding Such a does save which the involved, Government is the Government’s involvement with the involvement, extent of the Government’s placed from further scrutiny, for its and the controls thereon13 It Kurtzman, 11. Id. See also Lemon v. 403 U. with which it is involved is not subsumed 602, 616, S. L.Ed.2d mission. previously discussed, 13. The as is part primary religious mission, 12. The second the effect not subsumed a but it test, normally may thought ignored religious symbol “[a]id to cannot be that the primary advancing religion have effect of contained the can reli- specifically gious effect, degree . . . when it funds a reli- and the of this effect gious activity substantially vary according in an otherwise can to how it is utilized. In setting,” McNair, turn, secular Hunt v. the 413 effect of the Government’s involve- U.S. 734, 743, 2868, 2874, vary according 93 S.Ct. 37 L.Ed.2d 923 therewith can to re- (1973), recognizes placed that unless restricted and strictions and controls thereon. A controlled, balancing Government involvement ad- of all of these factors determines if religiosity though vance even the institution the effect of the Government’s involvement

73 balancing dispute determines do not that that which We test religious symbol, creche involvement is an obvious whether Government lightly testimony and incidental nor do we consider more than a “remote concerning religious plaintiff’s institu- witnesses its effect beneficial to upon engage effect Yet when we them. tions.” drawing” “line inevitable that agree Judge do not We prob this and other First Amendment Supreme Court’s Leventhal that require, lems United v. 12 see States admonishment in Levitt v. Committee Super Film, 413 200-Ft. Reels 8mm. Religious for Public Education 2665, L.Ed.2d U.S. 93 37 S.Ct. Liberty, 472, 480, 413 U.S. (1973), 500 we do not find the Govern (1973), L.Ed.2d that “the 5091 constitutionally in ment’s involvement constitutionally compelled State is to as reaching firm. conclusion we activity state-supported sure that is particularly impressed the follow being not used for indoctrina ing (1) factors: the secularized nature tion,” procedurally can somehow work to Pageant and, degree, to a certain change proof to the ul burden as holiday itself; of the Christmas season effect in of the Government’s timate (2) only the utilization of the creche to appellant volvement once has offered religious heritage aspect manifest patently evidence that re creche is a celebration, only the Christmas one of ligious symbol.14 our The relevance of many aspects “traditional nation- our disagreement minimal, on that factor is history Christmas”; al associated with however, de novo review of presence explanatory plaques record convinces that evidence us grounds on the clearly shows, considering when the na state, inter alia: ture of the involvement Government’s sponsors The National Park Service creche, overall effect that on the that basis this Na- the Government’s involvement consti wholly tutionally permissible. tional Celebration Event see- sponsorship remotely incidentally be is more than benefi- ” Hickel, lief . . . Allen v. 138 U. (1970). cial institutions. S.App.D.C. 31, 424 F.2d The creche as used is not indicating upon supposed look such remarks as have a We only sectarian effect recognize advancing any religious sense of belief. that the Government must separate reality considering from sec burden to out the secular its sta- situation — religious symbol in activities tus as a tarian when it becomes involved Christian —leaves open suscepti- purportedly dif for debate whether its use is that raise First Amendment misinterpretation, constitutionally required ble to and the Govern- ficulties. This it is proce upon impri- Yet, appellant ment’s an bears the involvement looked do. symbolizes. showing matur that the Govern of the belief that it dural burden of obliga ment has failed its constitutional reference, Judge g., McNair, See, 14. In Levitt e. v. addition to the tions. Hunt support 734, 746, n.8, 2868, 2876, Leventhal draws for his burden- 37 L.Ed.2d shifting theory Burg- (1973), Richardson, Mr. from Chief Justice Tilton U. Kurtzman, 681-682, L.Ed.2d er’s statement in Lemon v. S. S.Ct. plaintiffs’ 2105, 2111, (1971), in L.Ed. failure to where legislatures 2d 745 that troduce sufficient evidence to convince State statutory designed educa Court that secular created restrictions guarantee sup- tional of Church-related institu financial aid functions State inseparable ported only in a failure tions were resulted the secular educational function part proving recognition programs carry “in on its the burden candid these primary approached, they even if did intrude effect Government’s religion. Thus, upon, Religion al the forbidden areas under the involvement advanced though obligation prior opinion Clauses.” Our “[p]erhaps noted it is the Government’s comply appropriate accompanying the First with the mandates of plaque, jilaintiff’s explanation in Amendment is the burden to rather than a mere pamphlets might prove circulation, that has failed with lesser obligation. allay impression serve ... 74 character, separation purpose, and main and year between two. One ular in supra, display Lemon, later in Court

effect. illuminated creche The approach and, in what to the re- elaborated on is intended to be reverential Christmas; ligious heritage aspect “doctrinal de- described as a beеn parture,” display meant, third and treated it a distinct is not but that promote apart taken, test from either to be considered should not either be religious sym- primary worship, profane the Lemon, basically or effect tests.15 paro- religion; any aid to dealt with bols elementary secondary chial and schools (4) that in- the fact the Government supplements salary for form limited to the non-creche volvement is noted, The Court 403 at U.S. teachers. aspects Pageant, apparently and religious 91 at S.Ct. that regularly sup- is in kind to similar that permeation in the was of such a schools plied by other nation- the Government degree comprehensive, that dis- “[a] events; finally, al celebration and continuing criminating, and state sur- be fact that the creche should not inevitably required veillance will integral an considered in isolation but as [imple- ensure that restrictions [the] part whole of and being prevent mented the funds from question this court obeyed purposes] used for creche, is faced is not whether the con- and the First Amendment otherwise re- isolation, sidered has a ef- spected.” Noting ig- that “we cannot fect, but whether the lim- Government’s danger pervasive nore here the ited mittedly involvement ad-—an governmental power modern mately will ulti- only secular event “reli- whose religion intrude on and thus con- gious” recognizes content that it Religion Clauses,” flict with the 403 U. religious heritage aspect of Christmas at 620, S. at the Court S.Ct. admittedly religious means of prophylatic concluded that the adminis- symbol more than a “remote and —has required trative contacts would “involve advantageous incidental” effect gion. to reli- enduring entanglement excessive and be- tween and state church.” 403 at U.S. Importantly, at S.Ct. Entanglement III. Excessive recognized Lemon also a second branch Commission, In Walz v. Tax entanglement possibility test, 664, 674, U.S. 25 L. that such action will re- Governmental upholding Ed.2d a decision fragmen- sult in “[p]olitical intensified constitutionality property tax ex tation and divisiveness on lines” emptions religious organizations, continuing because of “the need an- Supreme Court enunciated an “excessive appropriations nual and the likelihood entanglement” approach to Amend First larger larger and demands as costs and questions. ment noted Court populations grow.” “the policy neutrality” required by entanglement 2116. The test is the First to mini Amendment “seeks thus concerned with both administrative mize” ship “day-to-day” kind relation political ramifications of Govern- government, between Church and geared involvement, policy to mini- exemptions of tax mize property interference, monitoring, any Church was enhanced be cause it furthered among impact desired insulation people.16 divisive Note, Supreme Court, 15. See governmental caretakers, Term, 85 Harv.L.Rev. neutrality religion toward and between re- ligion non-religion” Freund, [see Pub- 16. See id. at 172-78: Schools, important lic Aid Parochial factors excluded from Ilarv.L. now impact (1969)] effect criterion —the Rev. considered —are legislation during separate inquiry on “voluntarism in matters the course of the religion, political entanglement. (Footnote omitted.) mutual abstention of into terminating entanglement by role inher- of and conflicts contacts While m conclude that position we cannot on var- in the Government’s ent constitutionally required. Pag- action is such of committees ious it- When the Government disassociates Peace, considera- Inc. amount to of eant every- membership un various com- from self bly in the than involvement less limited to working involvement can be day insti- mittees its aof affairs co-sponsorship in terms of labor considerably nominal less than tution, and provided equipment for the con- and interference surveillance constant disassembly agree the non- of Lemon, struction in we discussed must Pageant. membership aspects The ad- Judge creche of of Leventhal that the minimal ministrative contacts would be on various of officials greater —certainly those entanglement than found presents dif- no committees proper there Tilton and Hunt —for ficulties. necessary only need be so much as Again, con the involvement we equipment pro- assure the labor and Su today is novel in terms of sider here Po- vided is utilized for the creche. not preme precedent and thus does not Court be minimal litical divisiveness would past pigeonholes deci well in the fit regulations (especially in view of test, however, emanates sions. require neu- continued that we to assure principle in from the that Government continuing although trality), on kept religion should be volvement yearly not basis the involvement would necessary minimum, that there subject pressures v aid i increased only in avoided the actual should be way continuing appropriations potential for and terference but also the Ny- in Lemon and nature involved religion. appearance of interference with quist. Judge in Leventhal has enumerated past Supreme has in the Court where officials stances Government сonsidering influenced, been either when placed best) posi (at been awkward standpoint en- involvement from because of the conflict tions between tanglement primary effect, by representatives their of the Gov roles specific “neutrality” aof Governmental ernment and decision makers on the Thus, Mr. Har- action. in Wain Justice planning and Al other committees. separate opinion lan his noted that though the officials involved have main is further assured “noninvolvement “even keel” and de tained an admirable neutrality exemp- and breadth of dealing sen sire fairness with the tion,” U.S. at S.Ct. them, upon in view sitive matters thrust Powell, Nyquist and in when Mr. Justice membership limited discussing the effect goal contacts, Governmental serves and the of minimal involvement, noted, 782, 93 U.S. at considering past, conflicts at 2970 n. 38: future, possibility for conflicts inference; from the some draw Allen and Everson differ from type membership, Government present important re- cace in a se.-end engaged by rep activity should not be ejass spect. oí tne bene- In both cases the prohibited by and is resentatives of children, included all school ficiaries constitutionally the First n ?< n ' p-'- public those in as wen those in Amendment.17 v, Rich- Tilton vate schools. See also ardson, supra, aid Although federal could the Government any put to all institutions completely was made available an end to semblance Committee,” exclusively 1, para. Although See Feh Ex. “is of Peace the creche F, property discontinuance attachments E the Christmas membership regarding Peace, stor- these committees further and all activities Inc.” -will pro- age, maintenance, repair, insulate the Government from and disas- conflict erection responsibility ducing regarding sembly situations the creche. “the of the creche is membership non-Federal primary 16 U.S. dedication.” See their higher v. Tax learning, and Walz 20-20g (1970). There has been 1, Commission, supra, tax ex- C. in which §§ showing selection that accorded, educa- no to all emptions were nearly (which attracts of Peace nonprofit insti- and charitable tional year18) as an a visitors a half-million tutions. any upon other support to is based event deeply respect to Mr. and adhere We any pri- other purpose, that it has nor Douglas’ in Zorach v. admonition Justice neu- mary that To assure effect. 314, 679, Clauson, 72 S.Ct. subject trality is not continues and (1952) that “[t]he 96 L.Ed. require continuing controversy, we it when neutral must be con- if the desires to that Government sects,” competition but between comes to support it must its tinue neutrality is vi- find that we no evidence governing regulations promulgate evidence The unrefuted olated here. involvement, as set out the Court’s in- is record Government’s opinion.19 Per Curiam to similar with is volvement Accordingly, to remand the ease we ‍​​‌‌‌​​‌​​‌​​‌​​‌​‌​​​​​‌​​‌‌‌‌​​​​​​​​​​‌‌‌‌​‌‌‍pri- provides cooperation “to other proper disposition for District Court sponsor organizations which vate opin- the Per Curiam accordance with recognized production officially na- ion. events, such as tional celebration Festival, Cherry the President’s Blossom LEVENTHAL, Judge, concur- Circuit Independence Cup Regatta, the National ring: (Fourth July) co- This Celebration.” metropolitan operation further Residents area of a desire to is based on brought events, the District of Columbia an ac- of these secularized themes injunctive deсlaratory tourism, utilize the tion and relief and best booster against very Secretary “park as- the Interior areas in the recreational Congress pects and directed subordinate officers of has National Pl.Ex. 38. the record evidence to convince us that See religious aspect Pageant gives an one theory Harlan discussed his unwarranted and effect Mr. Justice unconstitutional “neutrality” requires in v. Tax Walz involvement. what Commission, neutrality U.S. Absolute is different from con- (Har- 1409, 1425, neutrality, 25 L.Ed.2d 697 stitutional and thus statements J., concurring) “absolutely” lan, is not : the Government Neutrality application requires co-sponsors an neutral —in that here it an event analysis. equal protection religious symbol mode of a with Christian while it survey meticulously co-sponsor Court must the cir- does not one with non-Chris- governmental categories or, possible, cumstances of tian to the extent a non-secular eliminate, were, gerryman- symbol automatically as it not me move con- —do any particular constitutionally ders. question critical case the clude that is defec- its action proof primary is- the circumference of whether tive. The effect test itself is legislation distinction, encircles a-class so broad that of such action of the fairly'' “absolutely” it can be in- concluded neutral be- Government not thought religions religions stitutions could be to fall within tween or between and perimeter. non-religion automatically natural is not unconstitu- Peace, certainly subject scrutiny while not to determine tional —it institution, neutrality an event which if lack of “absolute” perimeter” “fall[s] within the natural more than a remote and incidental effect organization. those activities to which the Government has beneficial to a As past support Douglas in the rendered of one kind or Mr. Justice noted Zorach major Clauson, another. It is a tourist attraction District, which enhances business in the uti- L.Ed. 954 “A 96 agnostic : fastidious atheist sense, object supplication lizes Park land in a recreational could even to the principle opens fosters a desire nation’s which the Court each session: —this peace understanding which the ‘God save States this Honor- United —with ” Indeed, can indeed itself. associate able absolutely neutral, such a statement is Court.’ principles” govern yet constitutionally These “neutral the Gov- is it involvement, ernment’s cannot find in we defective? continuing concerning govern- challenging facts Services, Park entanglement, with views on the sponsorship the Christmas ment’s Pageant concluding issues, annually effect on the held of Peace disposition problem of on the adjacent comments park Ellipse, White n relief. Establish- House, violation as a particularly, More ment Clause. challenge inclusion plaintiffs PROCEEDINGS, AND I. PRIOR de- of a creche of exhibits FINDINGS DISTRICT COURT’S Nativity picting the Scene. stage litigation, prior In a of this the Establishment Violations of standing appellants court held have activity governmental arise when Clause metropolitan to sue as residents of the purpose, Lemon v. has a non-secular area of the District of Columbia served Kurtzman, 602, 612, 403 U.S. by park in this lands involved dis- (1971), or has an L.Ed.2d 745 29 pute. Hickel, U.S.App.D.C. Allen v. 138 religious impact”, effect of “substantial 31, 34, (1970). 424 F.2d 947 Abington Township v. of District School Schempp, held Court also that the record was too 10 83 making incomplete finding a under exces or leads L.Ed.2d 844 Abington Township School of District v. religion, entanglement sive with Walz Schempp, 374 U.S. Commission, Tax S.Ct. L.Ed.2d to whether 1409, L.Ed.2d 697 primary effect of the creche constituted religious impact”. also “substantial We agree entanglement issue I On the develop-' left room for further factual panel other of the members purpose ment as offi- participation Government sponsorship Pageant. of the de- cials the committee structure remanding making the district cision case to “entanglement” court, this of Peace violates the court indicated its concern presented on that sub- creche a manner test. The views set forth be “designed ject opinion, like the discussion to obviate or minimize in this at least background, in- offense to the are in essence sensibilities” of citizens factual by majority corporated who did not mes- reference in the believe Judge sage by by opinion advanced or who the creche filed for the court might very profana- effect, display purpose find a Tamm. As to suggested majority tion of their own are constitu- beliefs. We find that there no entanglement possibility appropriate problems that an ac- tional once the might companying purpose plaque problem be able al- On the is removed. lay spon- impression test, although I share the views good sorship proper majority measure, and set the tone there representation. questions not resolved to some that are my satisfaction, I defer and which would remand, court, On the district in a pending developments on Lhe dis-entan- Judge opinion Pratt, memorandum is- gloment. effect, I On ih. issue 3, 1971,1 on as to sued November held greater my questions, even disa- uuc to primary effect tests greement approach the Dis- with the Abington, neither reli- that there was a respects, trict but Court certain spon- gious purpose in the Government’s my apparently di- these matters verge views sorship pri- nor was my from those of brethren. mary effect of creche that of sub- religious impact. stantial note, prefatory that extended With Judge question purpose, opinion pioceed conven- On tho will in more secular, beginning presenta- found it to since the manner, Pratt tional provide col prior proceedings was intended “to a and basic tion (D.D.C.1971). F.Supp, orful,event gainsaid Nativity por- during scene, season be the Christmas that the Washing Christ, traying as does the which would attract visitors to birth of ”9 thereby religious significance ton of has . . . increase business local merchants.” although impact creche, diminished, symbol, clear Judge effect, accepted the Pratt As Judge concluded, by Pratt the secular premise, unanimous substantiated setting of the as a whole. testimony, Nativity is a that the Scene Moreover, the court indicated that Wogaman, symbol. John plaques pro installed the Government minister, ordained Methodist subsequent to remand order this Court’s Wesley fessor Christian ethics at obviating any played a central role in Theological Seminary Washington, possible “government stamp approv- deeply testified that the creche “has a display.10 al” affixed to creche significance.” Lie E. James berman, practicing psychiatrist and test, court also held third Psychiatry^ Uni Professor of Howard Commission, formulated in Walz v. Tax versity Medicine, put of School it 397 90 L.Ed.2d U.S. S.Ct. 25 way: symbol, think a “The creche I is our after first decision very powerful symbol predomi of the case,11 that “excessive religion religions group nant or of entanglement” present, was also society.” our satisfied. religious symbol- The conclusion toas follow, For novo reasons which the de by by ism was shared witnesses called record, review of the which the First the Government. Reverend James G. requires,12 Amendment to a find leads Kalaris, Program of member Com- ing by all members of al the court that mittee of believed though of in Government “having Nativity Pag- at Scene promote religion, volvement was not to celebrating of eant Peace is the birth sponsorship participa Joseph Corbett, Christ.”5 Father Pageant tion in the decision representative Roman Catholic on the relating creche, of matters to the consti Program that, Committee, as a stated entanglement” tuted “excessive reli priest, Nativity he considered the Scene gious matters in of the violation Estab religious symbol” a “basic and central clause. lishment and that him the commemoration the birth of Christ was the “central 11. THE DESCRIPTION OF CRECHE Pageant.7 core” of the AND PAGEANT record, Based on this the District Physical Layout A. Court observed that “the dominant through running theme timony evidentiary hearing, At the most of the tes- uncontro- testimony was physical that the creche verted is a established symbol” layout cannot The concluded of Peace.13 “It F.Supp. 2. 7. at 1092. Id. 611-612. Wogaman F.Supp. 3. Tr. 8. 98-99. Reverend further at 1093. : testified 9. Id. to . describe . creche scene wholly secular, imply 10. Id. at 1096-1097. wholly secular, Christian, I find offensive as a opinion Hickel, 1 1. Our in Allen v. regard depiction I because don’t of this App.D.C. 31, April 424 F.2d issued kind of scene birth Jesus' Christ as May 4, and Walz was decided 1970. being wholly secular. Sullivan, 12. York New Times 4. Id. at 235. 11 L.Ed.2d 686

5. Id. at 595-596. Testimony Chief, Smith, of Theodore T. Special Id. at 612. Events the National Division adjacent groups presenting Ellipse ues to feature a selec- held in the Street, music, Ellipse but of traditional House. tion the White parallel marks of the attraction is the various E the heart Street which runs boundary display. exhibits which the residents and tourists northern Washington Pathways touring can see Ellipse. called the Two boardwalks Peace, grounds Ellipse creche, running from The south entry course, Street, principal is one of exhibits. means of these are the Pageant. lead boardwalks These Ellipse, where the Plaques center of the C. large Tree, which is National Christmas Following suggestion in our ear opening cere- the President lit sponsors opinion, lier placed centerpiece. mony, provides a .colorful Story plaques “The three entitled Path- spokes, those of the Three besides Peace” at of the Christmas ways Peace, depart Tree and from the Ellipse.15 Two locations within pedestrian other routes serve plaques placed the entries these exhibits. of the north-south boardwalks. stage run Directly put along is a boardwalk of the Tree third was east ning Tree to the musical cultural from the National where various during period feet plaque The latter held creche. events pen Pageant. is a reindeer creche.16 To the south from the log yule fire area. plaques extensive These contain containing Nativity lies scene creche history of the amount of text about directly creche is west. Access to the themes. In attractions and running spoke n the west- not restricted to the eighth appears paragraph the there reached from the It can be wаrd Tree. following statement: walkway, pen by or from the reindeer sponsors Park Service The National when, any point and direction from Pageant Na- on the the basis the permitting, people walk on weather wholly sec- Event is tional Celebration grass of the instead boardwalks. character, and main ular in display illuminated creche effect. The the creche itself contains tradi- The re- to the reverential intended to be is Mary Joseph Nativity scene; and tional Christmas; ligious heritage aspect of kneeling child seen over Christ meant, display is not but shepherds Magi, in a crib with the promote taken, either should depiction in attendance.14 The animals sym- religious worship, profane night. life size and illuminated at is religion. any bols of B. Theme III. THE ENTANGLEMENT ISSUE year there for which last In 1970> Facts Record The Pertinent A. of record, the evidence in the Peace, Inc. of began 16, when The formally Christmas on December organized light- Before participated in the was first the President government involvement Tree. time ing of the National Christmas ceremony consisted of of also celebration Christmas Typically, opening presentation of the to the President various presentations of of consists Tree, Community government speeches National groups, singing of originated messages keep- with President practice officials, and Originally, Coolidge in 1923. meaning Calvin ing Christmas. with the Ellipse, in the erected tree was contin- opening, After the plaques can be Service, text of Parks, 15. The entire Capital De- Park National court, opinion of the district Interior, in the found partment Tr. at 363-369. F.Supp. 1095-1096 n.6. 26; and Id. PI. Exhibits lb 14. Tr. at Allen at 1. Reverend 16. Affidavit of however, today. co-chairmen of “Committee served as In where it is presentation Religious Cooperation.” trans- were ceremonies Lafayette In ferred to Park. organizational of the The structure Ellipse. again moved to was event changed since has not much presenta- period, the 1941-1954 chart, 1954. The 1970 latest Ex- program on the conducted was tion government record, hold- officials shows grounds.17 ecutive Mansion positions ing five on the Ex- two Committee,22 and Theodore T. ecutive Pageant was inception, the From its Region, Capital Smith the National groups: of three directed a coalition Service, Park was member U.S. Program clergy. The government, business and Chairman Committee role, pivotal government played a and Facilities Committee. Grounds Kelley, through person Edward J. prominence church, least Superintendent the National who was Program Committee, in the sensitive or- was when the Park Service strong participation was reflected in its Kelley one ganized in 1954. through Msgr. Joseph D. Rev. Corbett original incorporators, Chair- General Washington, the Archdiocese Rev. De- Committee, Direc- man of the Executive tor, metrios Kalaris of Constantine G. Sts. First Vice-President Church, Helen Greek Orthodox Pageant.18 associated Business leaders Sophia Tavlarides, Rev. John T. of St. Washington Trade Board of mem- Greek Orthodox Cathedral. These promi- played Three role. also a central Program bers of the 1970 Committee incorporators, offi- nent members were govern- worked side side with the Pageant: Ed- and directors cers Theodore Smith members, Carr, President, M. Edward ward R. Price Clinton C. of the D.C. Recreation Vice-President, Kirby, and Clar- Second Department.23 Arata, Secretary19 ence A. sponsorship clergy Washington area Christian highlighted printed pro- in the annual original organi- represented in gram Pageant,24 and even Pageant through Arch- zation of plaques which to mini- were intended Washington bishop of and the Executive relationship. of mize the end At Secretary Washington Federation of the following ap- plaque, the text on the pears the spon- Churches, “official of two of the by Pageant Spon- : “Dedicated the clergy- soring organizations”.20 Other sors, Pageant Peace, of Inc. Christmas the men from and the Archdiocese Depart- Service, & National Park Washington of Churches Federation of the Interior.” Release, De 17. Pl. Exhibit Press U. S. 19. Id. partment Interior, Park National of 23, Report Operations 20. PI. and Exhibit of Service, Capital Parks, November National Pag- Recommendations Christmas 13, 1958. Kirby, Peace, Pro- eant of from Edward M. Directors, gram Chairman, to the Board of Pageant 18. Def. The Exhibit Christmas February 21, 1955. Report; Peace, Exhib- Annual Def. of First Incorporation of of Certificate Pageant of 21. PI. Exhibit Inc.”, Peace, filed “Christmas of Peace, Organization Chart, 1955. 8, 1954. The Executive Commit- December members tee of contained other by positions held T. Sutton 22. These Chairmen, government, Vice as well: Parks, Capital Jett, of National Office (D.C. De- Recreation Milo F. Christiansen Service, Cliff, De- S. P. Forest U. Edward (Office partment) Jett, of T. Sutton Agriculture. partment of Capital Parks, Executive Secre- National organization- on the 1970 23. The information tary) ; Price, Recreation D. C. Clinton C. PI. Exhibit from al structure is taken many Department. addition, (cid:127) In members Peace brochure. 1970 Christmas Honorary government Com- “The served on Rep- Agencies “Participаting mittee”, or as Id. resented”. government government entanglement officials concern is The by religion on virtue of their office organized confined were called was participate organizational in the decision of such to the formalism organization questions. The chart. ines- complicated, required and almost Interior, Department by decisions capable, of actions set through jurisdiction of the government re- officials involved gov- agency Parks National was ligious or- on the matters: Guidelines heavily most involved with ernment ap- ganization’s principles had to be planning event, made available its Pag- speeches promoting the proved; publicize the event. While facilities conflicting made; views had be eant principally on these dwelled releases sec- prominence of the as to religious message, and themes, ular compromised placated, motif by inspiration provided particularly the money donated to finance or services identified, Scene,27 Nativity if Pageant’s activities. only the desires of the to accommodate pri- principles” were In 1956 “basic participating in the leaders by agreed upon, sponsors includ- vately publicity planning and ac- event. This Board, ing for the Recreation the D.C. government tivity of officials occasions Pageant.25 two organization officials, more concern remarks than concepts” follows: were as “basic Interior, Secretary of the such as Pageant ceremonies, there is lati- since That the Christmas purely personal principle remarks to the tude Peace must adhere problem concept exists Still Christ- obsеrvations. Christian Secretary Interior, at of Christ’s mas—the celebration occasion, led have been birthday. on one least event, planned who assistants concept must 2. That the Christian interests their awareness of intense throughout maintained members of executive of the clerical Pag- Pageant programs and the “repro- group, to the attention to draw exhibits, origi- (emphasis in eant nativity scene, treas- duction of so nal) all in the life of ured in this season important point not whether here is communities.” Christian these shared beliefs. officials the Government fact, government The role that seemed officials required adop- played also greatly have been troubled allocating principles.26 is of them to be involved these What tion my personal concern, Harry I feel the over- 25. PI. Exhibit Memorandum from my personal outweigh Thompson, Acting Superintendent, all views benefits T. persons participation Henry Gichner, Chairman, full of all and that Recreation D.C. agencies Board, 7,1956. essential to its and concerned is November success. supra 26. In the Memorandum cited note Nativity in- 27. offers life-sized “The Scene discussing problem Thompson, Mr. in his attending spiration Pis. crowds.” for the Principles, put agreeing Basic with to the Releases of the U. Exhibits 43 and Press way: the matter Department Interior, Park National S. Mr. F. has outlined to Milo Christiansen Capital Parks, Service, November National expressed by certain Mem- me the concern 20, 1959. 1958 and November during the Board a consideration bers of Secretary Speech of Exhibit 28 at 3. as a PI. of the recent announcement set forth Seaton, guide conducting program December of the Interior in for thе the say: Secretary on to went of Peace. light come, days During I, too, acting as we as an Member of the Recrea- home, know we will trees in our own and of Peace Commit- tion Board tee, night everywhere a reminded men am concerned all facets of long ago Peace program Prince of Infant in not be when as now envisioned lay manger Bethlehem. keeping personally far off in in a I would with what preferred. spite Nevertheless, in and F.2d — space various and time to Archdiocese of North and South participate groups traditionally wished to America has invited who been questions Prayer discussing during a Before offer Peace event. program. such, it as to the as that arose may note to take instructive be calling upon by We have felt in when a that arose Jew- occasion leaders, spirit these and proposed there dis- citizen be ish principles of all Faiths have Christian light- played lawn a on the House White represented.31 been that holds Menorah—the article ed from Decisions differ of this kind lights holiday in candles the festival of pertaining those who choices as to holiday, typically Chanukah, a Jewish give will at a a ceremonial invocation provides December, that in celebrated purely signifi- added secular event. An gifts rejoicing for chil- occasion cance is attached Govern- because the responded Secretary as Udall dren. charged selecting group ment is a :29 follows of patible leaders whose com- clerical faiths are religious signifi- Menorah has religious message with the light- [DJisplay of . . cance Thus, letter the Government Christmas. the White House ed Menоrah on grounds judgment the “reli- indicates that in by some could considered gious principles of all Faiths Christian re- a form of secularization represented.” have been a ceremoni- At reasonably ligious symbol could which any faith, al event Christian properly In addi- be criticised. non-Christian, satisfactory and neu- tion, very question is the serious there trality likely between faiths more provision re- under garding constitutional view of the vast number of ceremonial Federal involvement with performed. functions to be religious activity. specific Government, par- years Secretary voiced In recent Thus the concern validity tially objections propriety response over the of “fed- raised specific Union, reli- American Civil eral Liberties involvement activity” property. gious support terminated all financial assigned a event with the Yet the Government officials which is connected Program major planning However, creche.32 role the Government directly program does continue to defer were involved costs necessarily creche, decisions that made selec- connected with the which include among preparing Ben- area tions In 1966 Karl to receive a showmo- faiths. bile, up plat- Justus, setting many walks, Director and edi- net Executive setting Military applied'for forms, deer-yard Chaplain, building, tor of clergyman electrical, carpentry, opening painting, tree, a role emony cer- Pageant. activities, keeping in- horticultural He was buildings policed area for trash. formed Chairman General gov- terminated, Committee, included After the event is Executive la- two the additional costs of Government officials: ernment bears bor, equipment material and used for past pageants, all it has been [A]t dismantling putting Ellipse area practice of the committee to invite back in the condition it before two of the Prot- ecclesiastical leaders Pageant. Total serv- these costs Episcopal estant, and Catholic Faiths $72,789.78 ices were 1968-69.33 present alternately the Invocation Similarly, expenses benefit These were and Benediction. Archbish- Pageant op as a and all its Iakovas Orthodox whole of the Greek App. 31. PL Exhibit 50. PI. Exhibit 51 in Brief at 51. 29. 1, F, 32. Exhibit Attachments HI. Def. Pag- 15, 1966 Christmas

30. PI. Exhibit 1, 33. Def. Attachment H2. peace Exhibit eant of brochure. “entanglement” parts, including attraction and ser- voiced in test vicing visiting Commission, of those the creche. Walz v. Tax 397 U.S. 25 L.Ed.2d S.Ct. Finally, the record reveals how Kurtzman, and Lemon v. 403 U.S. officials enmeshed Government 29 L.Ed.2d is- Pageant planning of the drew on their subsequent sued to our first review personal ‍​​‌‌‌​​‌​​‌​​‌​​‌​‌​​​​​‌​​‌‌‌‌​​​​​​​​​​‌‌‌‌​‌‌‍It makes no dif- sentiments. case,38 allegations requires one ference whether the official was of the clause violations establishment be materials whose comments considered terms of whether Govern- centrality in effect advocate the religion ment involvement with leads to religious message,34or one who ac- “impermissible degree entangle- knowledged personal opposition supra, U.S., Walz, ment.” at 675 religion stress on but 90 S.Ct. 1409. outweigh felt that “the overall benefits my personal partici- and that full views question Walz involved the of the com- pation persons agencies of all con- patibility with the First Amendment of Pageant’s] cerned essential to its [the grant exemption New York’s of tax success.” organizations pro- and associations moting improvement”, “moral or mental Application Principles B. Pertinent churches, which included all as well as a long As range officials organizations.39 wide of other participated planning spon- began opinion The Chief Justice his sorship event, they could not es- “ by declaring . the men . . who cape religious entanglement, because Religion wrote the Clauses of the First qua inclusion of the creche was sine Amendment the a reli- ‘establishment’ of participation by officials, non of church gion sponsorship, connoted financial participation turn, and their anwas support, and involvement of active Pageant. essential element of sovereign religious activity.” Monsignor Church leaders at like Corbett opin- and Father at 1411. three Tavlarides were of the S.Ct. These guarded against. main ion that evils to be Lem- elimination of creche would on, supra, U.S., step gradual be “another 612 of 403 toward a at- tempt concluding “entangle- 2105. worship to abolish the of God.” preserve present, If ment” was not the Court was to neutrality stressed the event with their of the involve- participation, their point greater dangers ment and even of view had to be accommodated. exempting Carr, long-standing which could Even Mr. arise from not Presi- Peace, dent churches from taxation. who had Justice through concurring Harlan come to the made clear in his his asso- “ opinion, Washington ciation with . . noninvolvement Board of taking by Trade, position neutrality further assured took the exemption.” supra, creche Walz, breadth of the out would like taking U.S., at 698 of Christ out of at 1426 of Christmas.37 34. See Pl. 35. Exhibit letter See note 26. from Cornelius Heine, W. Chief of the Public Use Branch Service, 3, Pageant Meeting of the National 36. Pl. to Dr. Harold M. Exhibit of Peace Dudley 22, 1957, objections by November -which reads in discuss made the American part Union, as follows: Civil Liberties October 1967. impressed by photograph I have been Deposition Carr, taken years. Mr. Abbie Rowe for over two Def. Edward Exhibit story 14, pp. To me it tells and the 18-19. convey theme all of us would like to supra. in the Christmas of Peace —the 38. See note 11 Shepherds silently watching, awed bringing birth of the Prince of 90 S.Ct. 1409. Peace — impact us the true of Christmas. 84 neutrality, exemption, principle or to avoid churches occasions some of degree religion religion.” danger aiding more of involvement with one

the of religious U.S., than at of of more 397 at 1414 90 S.Ct. than another or the govern- necessity support the secular, if a measure Church state is a and the foundering affairs, in ment with church on rock involvement is to avoid corollary enforcement, aid of tax dan- of financial were volvement. The forms gers by by Supreme exemption policy. years avoidable upheld in recent given fear of intrusion on a This administrative to all institutions Court were foreground Lemon, non-discriminatory came posed in See to basis. Everson problem 1, Education, sup- of state financial v. 330 U.S. 67 S. Board port non-public (1947) (reim schools for the cost 504, L.Ed. 711 Ct. materials, parents specified public instructional in sec- as well bursements subjects. prevent parochial ular In order to children for bus school religious support being by transportation from used fares connections with promote school); religion, Board of Educa schools there would from comprehensive, discriminating, Allen, be “A tion v. 392 U.S. S.Ct. continuing (secular state surveillance 20 L.Ed.2d 1060 required grades to ensure that textbooks for all children in sev these through attending obeyed public en restrictions are and the First twelve nonpublie schools); respected.” Amendment at Tilton Richard v. otherwise U.S., son, 619 of at L. 91 S.Ct. 403 U.S. 91 S.Ct. (1971) (funds programs, for the con These Chief Justice Ed.2d 790 stated, quoting struction of from Mr. Justice Har- facilities to be used very opinion Walz, clearly purposes public lan’s “whose na- secular entangle nonpublie higher apt ture is de- institutions learn state ” ing). principle recently This was tails of administration . . . at reaf firmed in at 2112. for Public Educa Committee Religious Liberty Nyquist, tion and refusing grant injunction L.Ed.2d sought here, the found no District Court where the Court held uncon impermissible “entanglement.” Our programs stitutional York New consideration of the documents in repair” aid, direct “maintenance and tui contrary record leads us to a result. reimbursement, tion and tax deductions focused, erroneously District Court nonpublic schools, because the effect view, religious impact in our on of such aid was to subsidize and advance event, on the leaders which was consid- mission of sectarian relatively ered to be minor.40 In con- majority opin schools. Justice Powell’s trast, emphasized Walz broad ion made it clear that it was sufficient require exemption New York tax did not effect; that necessary this was “an” it was not “single out one Government to [d] “principal or particular religious group church or primary effect.” 413 at 783 n. even churches as such”. Unlike exemption” “breadth of the Har- Justice pointed Walz, Essential to the lan to in result Walz before was the case course, particularization the fact that us is “either marked taxation of readily following po- comprising 40. The District Court took the was ob- participation However, sition on the tained. clear to the Court participation leaders: the full record that question support There is no Christian leaders with their obvious freely community expressed religious Christian leaders of motivation earnestly always partici- played presenta- part solicited a minor and that pation clergymen, plan- and, .of im- both in tion of the itself more ning anything supplying portant, itself has little if with the to do original concept so-called “ceremonial amenities” at- of this event. programs F.Supp. tached to certain individual lege, permitted which court not consider religious symbols the did Gov- the sectarian”, capital “pervasively for im- property. ernment provements, the was unable to Court Neutrality minimal connec- assumes that a “realistic like- conclude there was exemptions the In case of tax tion. the “Authority be- lihood” that the could exemption involve- with less carried day-to-day deeply come involved the taxing churches. than would policy of the Col- financial and decisions easily put Here, could the Government course, lege.” case, In our at 2876. by “entanglement” termi- to its an end nating potential in- there is no need to estimate as its role volvement, we deal with a full since relationship present Lemon. Its matter, record on this a record apt Pageant “very by its nature is the actual involvement. shows entangle in details of admin- state the dispute arose istration.” When THE PURPOSE IV. ISSUE OF concerning the role within inquiry in an usual Establishment The officials, creche, the Government challenged stat- Clause ease is whether Pag- participation in the committed eant, legislative purpose.” ute has a “secular accept inclusion had 602, 612, Kurtzman, Lemon v. holding together price for creche as the (1971). 2105, 29 L.Ed.2d 745 religious, the coalition business case, however, we are concerned this government interests.41 Govern- De- with the results of actions inevitably involved ment officials are co-sponsoring partment of Interior of the creche and decisions to the role private corporation, The event publicity it, decisions about Pageant of Peace. This has all the consent of must be made with implications: first, in our search two present, participants. At purpose famil- we must abandon the for Pageant may fairly be described legisla- analysis of the intent of a iar “quasi-governmental” in character.42 ture, pur- try instead to discern fairly defendant officials cannot poses the Ex- of activities officials of by Branch, second, to Hunt v. Mc- avoid this reference we must ecutive spon- purpose of other 734-736, evaluate how Nair, 413 U.S. may affect our deter- sors of the Event case That 37 L.Ed.2d 923 governmental purpose. mination of upheld of an creation South Carolina’s plaintiffs Authority have our atten- proposed drawn issuance of rev- for a made bonds, tion to a number of statements Department of which was enue higher of Interior officials education institutions “assist indicating may financing construed as construction, and refi- holding Scrutinizing particular purpose nancing projects.” their including may entanglement likely the creche potential to arise religious.43 balance, the have been On of such funds a Col- out of the use following Service, supra. Park let- wrote tional 41. See text note 30 Pageant: plans for ter about Ilickel, Peace v. See Women Strike will We believe that 29, 38, U.S.App.D.C. 420 F.2d deep significance faiths for all dissenting). Although (Bobb, J., inspiration a vital and that it will be majority did not feel in that case peoples citizens and to American distinguishing plaintiffs’ ground for was a Although plans been have not the world. Ellipse right permit dur- for use of the released, officially now reveal we ing other from uses at some Washing- support endorsement functions were time where representing Churches, Federation ton Judge being performed, Bobb’s characteriza- groups, Arch- Protestant valid. tion nonetheless Washington, representing diocese of pageant example, three-week for a Boman Catholics For 43. Pis. Exhibits Capital sponsored by National Kelley, Superintendent Na- Greater Edward Moving pri- agree purposes on to of the that these the members of this Court analogous event, appears sponsors vate of the held to it should be statements religious legislators may in- leaders on the Board of statements of Pageant present the the have the do not insisted dicate “motives” but religious message in- Exec- creche and its “natural and effect” of reasonable Pageant.46 activity. cluded within the Also offi- utive Palmer Branch See representing 217, Thompson, 224-226, cers of the not re- 91 S. 403 U.S. ligious organizations, 1940, such as Edward Use of Ct. 29 L.Ed.2d 438 Carr, President, purpose ap- the have made clear that informal to show statements preservation religious aspect pears to us even more treacherous legislative important undertaking part Christmas is an than in the con- True, sparked event47 of Peace text. Christmas ongoing quest for a Event at- has been since and vari- Winter tract visitors have their entrances business ous officials made Washington.48 crys- purposes But Thus, exits. and “mo- once this was concept may changed time, tallized in the a of the tives” problem have over Peace, ascertaining in the business not leaders issue accepted, purpose single legislative promoted, and indeed of a enact- necessary theme of a event as a ment. ingredient significance. of substantial Turning objective to more indication purpose, puts aas whole purpose If the decisive, issue of Peace, its main stress on and it necessary is fair it sig- would be to assess the probably to conclude that it is with this objectives nificance sponsors private of the goal the Government project. to be combined In the participated.44 Although plaques one approval sense Government lends discounted, plaintiffs have to be purposes by co-sponsoring their claim, light Event, because in written of this even if the Government’s own litigation, message announcing purpose their solely promote peace. On purpose of one balance, Peace is that has been appear it does necessary not continually repeated pro- in the official ease resolve the difficult consti- grams 49 Pageant.45 of the tutional “purpose,” issue of especially Committee, civic, non-political, original hearing, and other 124) see 451 P.2d 117 at groups. non-sectarian rehearing, aff’d on further 463 P.2d 360 Pageant, Ellipse, (1969), Oregon Supreme location of the Court held that directly adjacent city Eugene’s building to the White House issuance of a grounds, permit permanent we city believe to be ideal. In addi- to erect cross on plans pa- property tion to for scenes and was a violation of the state consti geantry significance, hope we to drama- tution. Part of the rationale the deci by erecting high tize the scene City approved Christ- sion was that Council had n Ellipse. issuing permit mas tree in the center of the reasons. In PI. Exhibit 62. County, Paul v. Dade 202 So.2d 835 (Fla.Ct.App.1967), denied, cert. 207 So.2d Speech Secretary Interior, See (Fla.), denied, cert. Udall, opening ceremony Stuart L. S.Ct. 20 L.Ed.2d 304 the court PI. Exhibit 48. County put lighted held that Dade could g., Program, 45. See e. PI. Exhibit 2. county during cross on the courthouse month of December. The court focused on 46. PI. Exhibit 20. purpose using Deposition Carr, 47. See of Edward Ex- Def. cross and concluded that the state constitu 14, pp. hibit 18-19. public tion was not violated because no expended. funds were Both state courts 48. Tr. at 545. opinions limited their to discussion of state ascertaining provisions 49. The difficulties constitutional identical to the beleaguered considering have state courts re- First Amendment Establishment Clause. questions. City Eugene, Meyer ‍​​‌‌‌​​‌​​‌​​‌​​‌​‌​​​​​‌​​‌‌‌‌​​​​​​​​​​‌‌‌‌​‌‌‍City, lated In Lowe v. See also v. Oklahoma 496 P.2d (adopting (Okl.1972), denied, 254 Or. P.2d 792-793 cert. rehearing, Goodwin, dissent of J. 34 L.Ed.2d Report Ellipse. stat- to the moved considerations salient since emerged program somewhat “The will follow ed clearly : our considera- more exception pattern, with the “entanglement” the usual standard. tion of the being Ellipse moved to Scene, Nativity permit EFFECT THE OF installation of V. ISSUE ”50. . life-size characters activity judging whether the only reason The creche was not has a “substantial Government impact” Ellipse, moving ceremony to the advancing religion, under part identified as of but it was Abington Township v. of standard Pageant,51 even “backbone” of 1560, 203, Schempp, 83 S.Ct. 374 U.S. though “principal was attraction” questions two must L.Ed.2d 844 the National Christmas Tree. aid, First, in the be is the state asked. management, sponsorship of form record,53 On the of it basis given funds, to institution or well as plain Nativity depiction event of such a nature that “a substan- religious signifi- primarily scene is of portion tial functions are sub- its- religious cance and symbol.” a “clear constitutes religious sumed in the mission”? If fairly put It cannot as a be so, can the state involvement be success- mere historical event. one As witness fully religious aspect off cut from the said, compare when to asked the birth religious the event to avoid “substantial George Washington, Jesus with that of impact?” Thus, Supreme Court two, parallel “it would be difficult to upheld going has forms of state aid simply upon because Jesus is looked colleges, Tilton, Hunt v. McNair and su- being divine, His birth was that of a pra, part, in whose functions substantial virgin. depicts The creche scene ac- were not subsumed in a mis- event, virgin tual the occasion of His sion, and where institutions birth, quite unique which makes it clearly involved, types has allowed quite distinctive from the birth of George Washington . aid, transporta- such as textbooks and ”54 . . tion where “aid be channelled to the my view, appellant In carried providing secular without direct aid to showing that, Pag- burden of for the supra, Nyquist, the sectarian.” 413 U.S. eant, portion “a substantial of its func- at at 2967. In order to tions are mis- subsumed evaluate the nature of the event at issue McNair, supra, sion.” See Hunt v. here, perspective some historical at 746 n. at 2876. order. Judge November, 1954, Pratt, however, In at a assumed that time when it plaintiffs practiсe only had been the must to limit the show that the official religious symbol creche celebration of was a clear Christmas to but the National proof must also Christmas sustain the burden Tree on on White House grounds, Special the issue of whether the creche had a Committee on the Program, substantial by Christmas effect within chaired Kel- Mr. ley Pageant, including context of report- National the entire Service, Park plaques. my view, ed to analysis In D.C. Recreation Board this that the legal expanded reflected Christmas event error. (cross city grounds Office, May 28, United Nations erected on fair Information held not to violate 1954. state constitution because money being support state was not used to Report, 52. PI. Exhibit Annual The 1970 particular sect). or benefit Christmas of Peace. Report 50. PI. Exhibit Committee on Program (letter supra. 53. See text at notes included Re- 3-7 port). Id. at 153. 51. Def. Exhibit Letter from Edward Kir- by, Trade, Johansen, Board of to Mr. Paul though opinion prior case we the instant case some

In our restric- put funds, on not determine tions have been the use of we could stated that not the view of the more extensive nature of before us whether or record involvement, extending presented man- “in a creche could be designed participation sponsorship both at ner to obviate or least mini-. event, the Government must bear citi- mize offense the sensibilities showing burden U.S.App.D.C. that its zens.” 424 F.2d activities planning successfully implications the event have kind religious impact approach on diminished were touched Supreme creche. in Lemon v. Court Kurtzman, my view, assumption was the in- case L.Ed.2d 745 That prior opinion implica- our and the fair private pаrochial volved state aid tion of the reference Lemon v. Kurtz- salary supplements schools means man, supra, plaintiffs that once the Many in- of the religious teachers. schools religious symbol made a for a clear case volved had obvious missions. operates presumption symbol that this religious In order to circumscribe the religious impact. has substantial government impact funds, of these the bring burden on lies the involved, two Rhode states Island rebutting presump- forth evidence the Pennsylvania, attempted to create “stat- case, plaintiffs tion. In this introduced utory required restrictions” which only testimony not that the creche was a teaching in of non- be used funds religious symbol, evidence, clear but also religious subjects. The Court noted that by way poll, of a to show that the creche provisions precautions “these taken religious had a impact substantial on its recognition pro- candid that these viewers. The Government raised vari- grams approached, they even if did not methodological questions ous about the upon, intrude under forbidden areas polling procedure, attempting discred- Religion Clauses.” 403 sampling, it technique interviewer 91 S.Ct. at The Court not en- did validity questions asked to the gage analyzing legis- whether “these viewers of the creche. The trial court precautions principal lative or restrict apparently questions assumed that if as primary programs” effect of the plaintiffs’ poll to method left with little entangle- since resolved the case on weight question, on the “effect” grounds. plaintiffs had not sustained their claim. However, assuming statutory poll role of that added restrictions nothing case, plaintiffs’ —оr in the their case at demon- bar the of ad- role stration gious that creche ministrative gious was a clear reli- actions taken to dilute reli- symbol impact by left the Nyquist, made Government with clear —is burden, merely minimizing where there were no on restrictions plaintiffs’ poll, making repair but of funds, by maintenance and an affirm- showing setting ative Levitt Committee for the. Educa- Public Religious Pageant tion creche in Liberty, diluted its sub- religious stantial effect. 37 L.Ed.2d 5091 where the Court invalidated New York’s possible Three reasons were raised program private to reimburse schools by believing defendants for the effect of testing certain costs and record- (1) the creche is diluted: the theme and keeping. Burger, writing Chief Justice physical layout Pageant do not majority, for the stated that “the State highlight creche; (2) na- secular is constitutionally compelled to assure ture of Christmas state-supported dimin- activity celebrated is not being potential used impact; ishes indoctrination.” my This confirms view that plaques the burden make clear to viewers that on this issue rests carry State. Al- message. creche is to no gious impact im- physi- creche. this of the On not at the the creche was While point played portant cannot the Government no cal center by events, programmed mere assertion.55 any sustain its burden role in large numbers of remains that the fact Turning plaques, are in to the easy ac- to the the visitors my evidence, they view, plainly are, in creche: It is “back- cess to view the requisite diminu- insufficient to show though it is even bone” religious impact. plaques tion of These prominent National Christ- as the not as designed pur- do not even seem mas Tree. Story posе. They are entitled “The stating potential the Christmas of Peace” In that the purpose impact the statement of secular of the creche was diminished bur- eighth lengthy paragraph setting, ied in Court its secular District message. textual reminded of a One is stated that: away waiver clause tucked in an insur- department is seen [the creche] policy. ance fact and view stores, commercial establishments as only the additional fact that there public symbolize places well plaques placed Ellipse, only three Christmas, the celebration of a nation- any proximity creche, one in to the there holiday. espe- al cially makes it This fact is little reason to believe that their mes- accept difficult to the contention sage of secular was read display of the creche many any impact. viewers or if read had sig- of Peace has a objec- at trial made impact nificant .... poll conducted, tions to the 32). (App. at the basis that the could not be pollsters reasoning unpersuasive. I find this respondents ques- sure each premise Its unstated is that the creche message tioned had read the on the settings seen commercial has no plaques that, therefore, any and results impact. ,What substantial showing conveyed that the creche a reli- equally, more, likely seems if not is that gious message were inconclusive.56 If the commercial establishments that dis- the Government had committed itself to play scene, clearly Nativity the a reli- design display truly the of effective gious symbol, do in order to so invoke plaques, question need never have message, its emotional as a motivation Any placed by been asked. reliance the purchase contemporary equiva- for of point trial clearly court on this seems myrrh. lents of frankincense misplaced. Perhaps plaque a or other Whether the commercial establishments designed means could have been to ob- profanation religion are involved in a religious impact viate the creche, is not an issue before this court. The but the Government did not show that claim remains that this is one of the ef- particular plaques these fulfilled that fects of the Government’s involvement in task. Pageant. Although the use of reli- gious symbols by private enterprise is COMMENTS ON DISPOSITION VI. us, not of concern to the fact that the reversing The court is unanimous Government is involved judgment District Court be- symbolism makes the effect of this entanglement. cause excessive matter attention under the Estab- question is as to the decree. very lishment clause. The issue of proof legal question in this case is 1. No arises if whether a secular further setting sponsors conclude that does diminish event the reli- may support religious symbol possible 55. We also note vitiate a than one it distinguish meaning. Meyer setting between a ive v. Oklahoma commercial of its Cf. City, supra Although of 496 P.2d. about Christmas. note at 792-793 it ultimately empirical question, is an be pure setting that a commercial 56. Tr. does vol. at 16. more to (1972). If from the the Government chooses will be eliminated creche available, to make other areas such as of Peace. granted Ellipse, permits must be non-government sponsors If non-discriminatory the same basis.60 creche, the to retain the Govern- wish all could avoid Establishment is- Principles neutrality and non-dis- by severing its connection with the sues Pаgeant groups require crimination do not all merely treating any it like parkland to the access same simul- parkland. applicant other for use of during taneously. Ellipse Access to the Regulations Department of Interior holding Pageant may reasona- meeting provide upon condi certain bly by be limited out of tions, met in the which the has possibilities consideration to of disturb- past,57 permit may issued. 36 C.F. objectives ance or interference Regula (1972). R. 50.19 Under § participants.61 of Women See Strike types tions there seem events, be two Morton, U.S.App.D.C. Peace v. gatherings” “public and “NPS 198, (Wright, F.2d 1293-1294 event”, 50.19(a)(1) (5). An NPS § J.) (Leventhal, J.) 1299-1303 “any celebration, event is defined as commemorative, event, or recreational proceeds by termi- If the Government sponsored co-sponsored the Na nating supportive relationship with Apparently, tional Park permit Service.” event, question reason of arises an was issued as government the extent to which the “NPS event.” public been mind since associated why regulation There is no reason Vestiges Pageant. 1954 with the perhaps cannot be amended—or by sim- association cannot be eliminated “public gathering” provision interpreted ple support both because termination of permit —to authorize of a issuance past the misinter- association and to the absence Gov- pretations might in the fu- occur sponsorship support, ernment as- participation ture as a result suming non-diseriminatory availability private officials, in ca- their permits gatherings. like As was remand, pacities, in event. On (I), stated Women Strike Peace for jurisdiction of district court will retain supra, particulаr “[p]arks are a kind of pending par- this case ticipants a decision community Anglo- that, area under the they option to which as will tradition, available, American at gov- take. If the decision to have the is least to some extent and on a reasonable relationship terminate with ernment basis, groups for of citizens concerned Pageant, the district court will enter expression of ideas.” injunction government requiring It parkland, is clear that some post such plaques. a new set of These Arlington Cemetery, already National plaques designed for should be maximum available groups exposure readability on pur- a non- sole discriminatory pose stating basis. See Satiacum v. Laird, U.S.App.D.C. 209, way sponsors F.2d no of Peace 57. Def. any Exhibit Attachment E. “It is not or other court guides park duty construct use. permit Id. Issuance for event under the court is to assure our citizens unspecified regulatory authority. See Wom rules, criteria, guide- Park Service has or Morton, en Strike for Peace v. 153 U.S. naturally lines. These will seek to further App.D.C. 198, (1972). 472 F.2d 1273 park objectives. Yet the Park Service must U.S.App.D.C. 29, 32, 59. 137 proper 420 F.2d also take into account matters least non-frivolous constitutional aspect, and must take a hard look at them Morton, supra. 60. Women Strike Peace v. give them reflective consideration.” 61. Also see Strike for Peace Hick Women v. el, U.S.App.D.C. F.2d at message not, This should as is event.

presently case, obscured origins

lengthy description Pageant.

nature of retained, If the creche is con-

Government wishes to maintain a majority

nection with the

is of the view that a connection limited provided presently

to the financial aid sponsorship technical would

and/or run afoul the Establishment clause

provided the connection established regulations ground- accordance new principles

ed in neutral and criteria that non-discriminatory

assure definition of any

the events that are afforded sponsorship.

Government aid or technical per

As indicated the footnote to the statement, pres-

curiam while I do not

ently respect reg- discern what such a ulation could run afoul the Establish- clause, prefer I would to withhold

any pronouncement pend- issue ing ‍​​‌‌‌​​‌​​‌​​‌​​‌​‌​​​​​‌​​‌‌‌‌​​​​​​​​​​‌‌‌‌​‌‌‍emergence regulations controversy.

issued and of a concrete al.,

Lillian B. WATERS et Appellants,

Peter G. PETERSON et al.

No. 72-1320. Appeals,

United States Court of

District of Columbia Circuit.

Argued Jan.

Decided Oct.

Case Details

Case Name: Reverend Thomas B. Allen v. Rogers C. B. Morton, Secretary of the Interior

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 26, 1973

Citation: 495 F.2d 65

Docket Number: 71-1909

Court Abbreviation: D.C. Cir.