*1 PAWTUCKET, al. et OF MAYOR LYNCH, al. DONNELLY et 5, 1984 March 4, 1983 Decided October Argued No. 82-1256. *2 White, Court, in opinion of the which J., Burger, C. delivered O’Connor, J., filed O’Connor, JJ., joined. Rehnquist, Powell, Brennan, J., dissenting opinion, filed a concurring opinion, post, p. 687. post, Stevens, JJ., joined, p. Blackmun, 694. Marshall, in which Stevens, J., joined, dissenting opinion, in which Blackmun, J., filed a post, p. 726. F. McMahon
William for petitioners. cause argued *3 Spen- P. Richard McMahon and him on the With briefs were cer Viner. W. Lee General
Solicitor for United argued cause as amicus curiae him the on reversal. With urging States Deputy Attorney McGrath, Assistant General were brief Attorney Deputy Bator, Assistant General Solicitor General Kathryn Oberly. Kuhl, A. and A. DeLuca
Amato for respondents. cause argued Blanding, Burt A. him on the brief were Sandra With Larson, Dorsen.* Neubome, E. Richard and Norman Burger opinion delivered the Justice Chief Court. Establish- to decide whether granted
We certiorari a prohibits municipality ment Clause of the Amendment First *Briefs of amici curiae urging for the Coalition reversal were filed Whitehead; Knicely John W. James J. Religious Liberty by for et al. and Crump; David the Wash- Legal by and for Foundation of America Kamenar, and Nich- Popeo, Paul Daniel J. D. ington Legal by Foundation olas E. Calió. American Briefs of amici curiae filed for the urging affirmance were Rabinove; Anti-Defamation Samuel by et and for the
Jewish Committee al. Dershowitz, Meyer Finger, Justin J. Alan League by of B’Nai B’rith et al. Dershowitz, Eisenberg, Jeffrey Sinensky, Z. and Marc Stem. P. Nathan including Nativity from a créche, or in scene, its annual display. Christmas
I year, cooperation Each with the downtown retail mer- city chants’ association, the of Pawtucket, R. L, erects a display part Christmas of its observance of the Christmas holiday display park season. The is situated a owned a nonprofit organization shop- located the heart of the ping display essentially district. The like those to be found in hundreds of towns or cities across the Nation —often public grounds during on the Christmas season. The Paw- — display comprises many figures tucket and decorations traditionally including, among associated with Christmas, things, pulling other house, Santa Claus reindeer Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cut- figures representing out such characters clown, as a an ele- phant, teddy lights, large bear, and a hundreds of colored banner that reads “SEASONS GREETINGS,” and the créche components display at issue here. All of this are owned city. The créche, which has been included in the for 40 or years, figures, including more consists of the traditional Mary Joseph, angels, shepherds, kings, Jesus, Infant ranging height animals, all In 1973, from 5" to 5'. when present acquired, city créche was it $1,365; it cost the *4 dismantling now is valued at The erection $200. city per year; expenses créche costs the about nominal $20 lighting money are incurred in ex- the créche. No has been pended years. past on its maintenance for the 10
Respondents, individual mem- Pawtucket residents and bers of the Rhode Island affiliate of the American Civil Liber- brought in the Union, itself, ties and the affiliate this action challenging Island, United District States Court Rhode display. city’s The the inclusion of the créche the annual city’s créche District held inclusion of the Court that the Supp. F. Clause, the violates the Establishment through (1981), binding the on the states 1150, 1178 which is that, by found The District Court Fourteenth Amendment. has city display, Christmas the créche including id., beliefs,” and promulgate “tried endorse and sub- has the real of the creche and that “erection beliefs the Christian City affiliating effect of stantial Id., “appear- at 1177. This represents.” that the creche more than a believed, “confers it of official sponsorship,” ance Id., at 1178. Christianity.” on benefit remote incidental the absence of admin- acknowledged court Last, although entanglement excessive it found that entanglement, istrative divisiveness of of the political as a result has been fostered Id., at 1179-1180. in the the créche celebration. including the créche from including enjoined permanently was city in the display. First for the Cir Appeals of the Court of
A divided panel
(1982).
certio
granted
We
F. 2d
affirmed.
cuit
and we reverse.
(1983),
I—l i- A of the Establish- explained purpose This Court has of the First Amendment and Free Exercise Clauses ment of either the intrusion as far as possible, “to prevent, other.” or the the precincts state] church into [the Kurtzman, Lemon 403 U. S. the Court recognized has time, however,
At the same sense. “total is not an absolute separation possible between relationship Some Ibid. is inevitable.”
organizations must reconcile case, we Establishment Clause every un- of preventing tension between the inescapable objective upon of either the church or state intrusion necessary noted, so has often other, reality that, and the as the Court total of the two is separation possible.
673 Religion Clauses The has sometimes described Court g., erecting state, see, e. as a “wall” betwéen church (1947). 18 Education, 1, v. Board 330 U. S. Everson figure speech separation concept is a useful of a “wall” of deriving probably of Thomas Jefferson.1 The from views metaphor reminder that the Establishment has served as a anything approaching church or an established Clause forbids wholly descrip- metaphor is not a accurate itself it. But the relationship practical aspects fact tion of church and state. exists between society significant segment our and no institution No in vacuum or total or absolute isolation it can exist a within government. parts, “It much less from from all the other thought possible or desirable to enforce either has never been regime separation Public . . . .” Committee of total Liberty Nyquist, Religious 756, U. S. Education & complete require Nor does Constitution affirmatively separation mandates state; it of church and religions, merely tolerance, of all accommodation, g., hostility any. Clauson, Zorach v. e. See, toward forbids (1952); rel. Illinois ex McCollum 314, 315 306, 343 U. S. (1948). Anything 333 U. S. Education,
Board of
require
have said
indifference” we
the “callous
less would
Zorach,
the Establishment Clause.
never intended
was
hostility
swpra,
observed, such
Indeed, we have
at 314.
bring
tradition
national
into “war with our
us
would
guaranty
the free
in the First Amendment’s
embodied
supra,
religion.”
211-212.
McCollum,
exercise of
B
has
interpretation
Clause
of the Establishment
The Court’s
contemporane-
history
comported
reveals was
what
example
significant
understanding
guarantees. A
of its
ous
(1879)
reply
(quoting
States,
Reynolds v. United
98 U. S.
Danbury Bap
by committee
address
Thomas Jefferson to an
from
1802)).
(January 1,
Association
tist
*6
understanding
contemporaneous
is
of that Clause
of the
First
of
of the
Session
the first week
in the events of
found
very
Congress
Congress
In the
week
in 1789.
the First
part
Bill
of the
as
approved
Clause
Establishment
legislation
states,
it enacted
Rights
to the
for submission
Chaplains
paid
House and
providing
for the
Senate.
(1983),
that 17
we noted
gress in 1789 takes on Congress emphasis that the First Court’s Congress constitutional decisions have a whose “was they regarded, regarded, always should be as been interpretation weight greatest funda- of that Myers 272 U. S. States, v. United instument,” mental (1926). 174-175 17 draftsmen of the Constitution It is clear that neither the Congress Congress, First nor who were Members of the employment problem any in the saw establishment daily prayers congressional Chaplains in the Con- to offer of gress, practice nearly two centuries. that has continued for a example striking identify more It would be difficultto a the Framers. intended accommodation of belief C acknowledgment history There an of official unbroken of the role all three branches of opinionswas in our American life from at least 1789. Seldom Douglas’ affirmatively expressed in Justice than this more allowing validating program opinion release for the Court public school students from classes to attend off-campus reli- gious exercises. Rejecting claim that the program violated the Establishment Clause, the Court asserted pointedly: are a
“We
religious people whose institutions presuppose
a Supreme Being.” Zorach v. Clauson,
supra,
313.
See also Abington School District v. Schempp,
Our history is replete with official references to the value and invocation of Divine guidance in deliberations and pro- *7 nouncements of the Founding Fathers and contemporary leaders. Beginning the early colonial period long before Independence, a day of Thanksgiving was celebrated as a religious to holiday give thanks for the bounties of Nature as gifts from God. President Washington and his successors proclaimed with Thanksgiving, all its religious overtones, a of day national celebration2 and Congress made it a National more than Holiday ago. Ch. century 167, 16 Stat. 168. That has holiday not lost its theme of expressing thanks for Divine aid3 any more than has Christmas lost its religious significance. day after the First proposed, Congress Amendment was urged Washington President proclaim day “a public of thanksgiving and prayer, to be acknowledging observed grateful many the hearts signal and favours of Almighty God.” Pfeffer, See A. Stokes & L. Church and (rev. in the 1964). State United States 87 1st ed. Washing President proclaimed ton 26, November 1789, day thanksgiving of to “offe[r] our prayers supplications and to the Great Nations, Lord Ruler and of and beseech Him pardon our transgressions national and other . . . .” 1 Richardson,
J. Compilation A of Messages Papers of the Presi and (1899). 1789-1897, p. dents Presidents Adams and Madison Thanksgiving also issued Proclamations, as have almost all our Presidents, 3 A. Stokes, see Church and in the State United (1950), States through incumbent, 180-198 see Presidential 4883, Proclamation No. 3 CFR 68 3An example is found President Roosevelt’s of Proclamation Thanksgiving: fitting “[I]t is that give we special thanks with Heavenly fervor to our Father for the we mercies have individually received and as a nation and announcements official other and Orders Executive proclaimed Congress Christ- both have and of Presidents religious Holidays terms. Thanksgiving National and mas practice long Congress, been it has Acts And, National on these from duties employees are released federal public revenues being paid same from the Holidays, while Chaplains of the Senate compensation of the provide military Res. J. services. and the House long has that Government it is clear Thus, 516. 23 Stat. holidays with recognized it has subsidized— —indeed significance. heritage are examples to our reference
Other statutorily “In God prescribed motto national in the found Congress § Presi- which U. S. C. Trust,” 36 We 5112(d)(1) § currency, C. see U. S. for our dent mandated (1982 language God,” under ed.), nation “One in the flag. That Pledge Allegiance American part to the by many school chil- pledge thousands is recited year. every dren—and adults — by public reli- supported galleries revenues
Art predominantly gious paintings centuries, and 16th of the 15th *8 Gallery in religious inspired by faith. The National one and arms restored, through victories our blessings He has for Allies, to His other lands. of our children those gratitude to to our may more earnest witness the end we “To bear Scriptures reading Holy Almighty God, suggest I a nationwide Day Presidential Thanksgiving to Christmas.” during period from 2629, 58 1160. Proclamation Stat. No. similar predecessors have Reagan his issued President and immediate g., 5098, 3 e. 94 See, No. CFR Proclamations. Presidential Proclamation (1981); Presidential 4803, 117 (1984); No. 3 Proclamation CFR Presidential (1971-1975 Proc- Comp.); 4333, 419 Presidential 3 CFR Proclamation No. Proclama- (1971-1975 Comp.); Presidential 4093, No. 3 CFR 89 lamation (1966-1970 Proclamation 3752, Comp.); Presidential No. CFR 75 tion 3 (1959-1963 3560, Comp.). 3 312 CFR No.
677 Washington, support, maintained with Government for ex- ample, long masterpieces religious has exhibited mes- sages, notably Supper, paintings depicting the Last among Birth of Christ, Crucifixion, and the Resurrection, many explicit messages.4 others with Christian themes and very arguments The chamber which oral on this case were permanent heard is decorated with a notable and sea- —not symbol religion: Moses with the Ten Command- sonal— Congress long provided chapels Capitol ments. has in the religious worship and meditation. There are countless other illustrations of the Government’s acknowledgment religious heritage governmental of our sponsorship graphic heritage. manifestations of that Con gress proclaim Day has directed the President to a National Prayer year [day] people each “on which of the United prayer States turn to Godin and meditation at churches, groups, §169h. and as individuals.” 36 U. S. C. Our repeatedly Presidents have issued such Proclamations.5 messages Presidential Proclamations and have also issued Heritage to commemorate Jewish Week, Presidential Proc (1982), High lamation No. 4844, 3 30 CFR and the Jewish Holy Days, Weekly Comp, 17 of Pres. Doc. 1058 One finding cannot look at even this brief résumé without that our history pervaded by expressions beliefs such as Equally pervasive are found Zorach. is the evidence of religious expres accommodation of all faiths and all forms of hostility Through sion, toward none. this accommoda- Gallery regularly National exhibits more 200 similar than paintings. 5See, g., e. 5017, (1984); Presidential Proclamation No. CFR (1981); Presidential Proclamation No. Presidential CFR 109 (1971-1975 Proclamation No. Comp.); CFR 486 Presidential Proc (1971-1975 *9 4087, lamation No. Comp.); CFR 81 Proclama Presidential (1966-1970 tion No. Comp.); 3 CFR 155 Presidential Proclamation (1959-1963 No. Comp.). CFR 228 governmental has Douglas action observed, tion, as Justice “respect[ed] the “follow[ed] traditions” of our the best people.” S., at 314. 343 U. nature our Ill consistently explain why history help the Court This rigid, view of Establish- absolutist to a has declined take Religion refused “to construe We have ment Clause. undermine the ultimate that would a literalness Clauses with objective history.” as illuminated Walz added). constitutional (1970) (emphasis Comm’n, 664, 671 U. S. Tax society, complex con- traditions and modern, whose our encourage diversity underpinnings on rest stitutional approach applying pluralism in all an absolutist areas, simplistic and uni- has been the Establishment Clause rejected by formly the Court. mechanically invalidating governmental all
Rather than give recog- special that confer benefits or conduct or statutes religion general or faith—as absolutist nition to to one an approach has scrutinized chal- would dictate—the Court legislation lenged whether, or official conduct to determine reality, it a or tends faith, establishes Joseph Story supra, to at 669. a Walz, do so. See wrote century ago: and a half object [First]
“The real ... Amendment was any prevent establishment, national ecclesiastical which give hierarchy patronage should to an exclusive government.” Story, the national 3 J. Commentaries on the Constitution of the United States 728 inquiry line-drawing; case, fixed, In each no calls for per se rule can like be framed. The Establishment Clause precise, provision Process Due Clauses is not a detailed capable legal ready application. purpose code objective, Establishment write Clause “was state an not to supra, per- Walz, statute.” 668. The line between relationships and those can no missible barred Clause *10 straight more be unwavering process than due can be de- single phrase fined in a stroke or or test. The Clause erects a “blurred, indistinct, and depending variable barrier on all particular circumstances relationship.” of a Lemon, 403 U. S., at 614. line-drawing process we have often found it useful to
inquire
challenged
whether the
law or conduct has a secular
purpose,
principal
primary
whether its
or
effect is to advance
religion,
or inhibit
and whether it creates an excessive entan-
glement
religion.
with
supra.
Lemon,
But,
repeatedly
we
emphasized
have
unwillingness
our
to be con-
any single
fined to
test or criterion in this sensitive area.
g.,
e.
See,
Tilton v. Richardson,
In this case, the inquiry of our focus must be on the créche in the context of the g., Christmas season. See, e. Stone v. (1980) Graham, (per curiam); 449 U. S. 39 Abington School Schempp, District v. 374 U. S. 203 In Stone, for ex- ample, we requiring invalidated a posting state statute copy of the Ten on Commandments classroom walls. carefully pointed But the Court out that the Commandments posted purely were as “integrated admonition, not into the school may curriculum, where Bible constitution- ally appropriate be used study history, in an civilization, comparative religion, ethics, or like.” 449 S., U. at 42. Similarly, Abington, although the Court struck down the practices daily requiring pub- readings two States Bible lic specifically schools, it nothing noted that in the Court’s holding “indicate] was study intended to that such religion, presented Bible objectively part when of a program secular of education, not be consist- effected ently S., the First Amendment.” 374 U. at 225. exclusively religious component any activity Focus on the inevitably to its invalidation under the Establish- would lead ment Clause. *11 legislation governmental
The
invalidated
or
ac
Court has
purpose
ground
lacking,
that a secular
was
but
tion on the
question
only
it
concluded there was no
that the
when
has
activity
wholly by religious
statute or
was motivated
con
g.,
supra,
Graham,
e.
Stone v.
at
See,
41;
siderations.
(1968);
Epperson
Abing
Arkansas,
97,
393 U. S.
107-109
Schempp, supra,
Engel
ton
District v.
223-224;
School
424-425
Even where
Vitale,
370U. S.
the bene
religion
substantial,
fits
as in Everson v. Board
were
(1947);
Education,
Allen,
330 U. S.
Board Education v.
(1968);
supra;
supra,
Walz,
Tilton,
than
money
of
of
sums
for text-
supplied throughout
country
books
to
attend-
students
ing church-sponsored schools, Board Education v. Allen,
of
supra;8 expenditure
transportation
of
funds for
of
6The city contends that
the purposes
display
“exclusively
are
only
secular.” We hold
that Pawtucket
purpose
has a secular
for its dis
play, which is all that
Kurtzman,
(1971),
Lemon v.
requires.
403 U.
602
S.
Were the
that
test
objec
must
“exclusively
have
secular”
tives,
much
legislation
conduct and
approved
this Court has
in the
past would have been invalidated.
7 Justice
Brennan
argues
city’s objectives
have
could
been
achieved
including
without
display, post,
créche
699. True or
at
not, that is irrelevant.
question
is whether the
of the creche
violates the Establishment Clause.
8The Allen Court
“[pjerhaps
noted that
likely
free books
it more
make
that some children choose
S.,
to attend a sectarian school.
.
.” 392 U.
.
at 244.
church-sponsored schools, Everson v. Board
students to
college buildings
grants
supra;9
federal
for
Education,
combining
higher
church-sponsored institutions of
education
Richardson,
Tilton v.
education,
secular and
(1971);10noncategorical grants
church-sponsored
U. S. 672
colleges
Works,
Roemer v. Board
Public
universities,
exemptions
(1976);
prop-
church
and the tax
for
U. S. 736
Comm’n,
v. Tax
This case differs from Larkin v. Grendel’s supra, Den, Inc., McCollum, was sub- where 9 Everson, acknowledged undoubtedly the Court true that “[i]t helped schools,” get children are to church of the chil and that “some might compelled dren sent parents be to the church schools if the were *13 pay S., pockets their children’s bus fares out of their own .. ..” 330 U. at 17. Tilton that the construction recognized “surely
10 We grants aid[ed]” S., the institutions that received them. 403 U. at 679. Maryland McGowan v. . . “In . Sunday Closing were sustained Laws though even one of their it undeniable effects was to render somewhat likely more respect religious citizens would institutions and even Religious services.” Committee Public Education & religious attend (1973). Liberty Nyquist, 413 U. S. 775-776 stantially important governmen- In Den, aided. Grendel’s power licensing authority tal veto been vested in —a —had churches. McCollum, had made in- public struction available school classrooms; the State had only buildings teaching used school for the religion, “afford[ed] groups it had sectarian an invaluable aid [by] providing] pupils (cid:127) (cid:127) (cid:127) for their through classes compulsory public use of the machinery.” State’s school comparable religion S.,U. at 212. No benefit to is discern- ible here.
The perceive dissent asserts some observers that the city aligned has including itself with the Christian faith symbol display Christian in its and that this serves to ad- religion. arguendo, vance We can assume, that the religion precedents advances plainly a sense; but our con- template religion that on occasion some advancement will governmental result from action. The Court has made it abundantly every clear, however, that “not law that confers an upon [religion] ‘indirect,’ ‘remote,’ or ‘incidental’ benefit constitutionally is, for Nyquist, that reason alone, invalid.” 413 U. S., 771; see also Vincent, Widmar U. S. Here, whatever benefit there is to one faith or religion religions, or to all indirect, remote, and incidental; display of the créche is no more an advancement endorse- religion Congressional ment of than recog- Executive origins Holiday nition itself as “Christ’s Mass,” literally or the religious paintings exhibition of hundreds of governmentally supported museums.
The District Court found that there had been no adminis- entanglement trative resulting between and state city’s ownership from the and use of the créche. 525 F. Supp., political at 1179. But it on went to hold that some engendered Coupled litigation. divisiveness was this finding impermissible with its purpose of an sectarian persuaded effect, this the court that there was “excessive entanglement.” Appeals expressly Court declined to *14 finding accept inclusion of the creche the District Court’s along religious political lines, and divisiveness caused has political never held that divisive- has noted that this Court to invalidate conduct. sufficient ness alone was degree. Entanglement question In and this of kind is a the District no reason to disturb there is case, however, entangle- finding of administrative on the absence Court’s contact with church authori- no evidence of ment. There is design prior concerning of the exhibit content or the ties expendi- purchase No of the créche. or since Pawtucket’s necessary; the creche have been maintenance of tures for tangi- city $200, now valued at creche, since the owns many respects In de minimis. material it contributes ble ongoing, day-to-day display requires far less interaction religious paintings than church and state between galleries. “compre- nothing here, course, like the
There is continuing discriminating, state surveillance” or hensive, “enduring entanglement” present Lemon, S., 403 U. 619-622. correctly Appeals observed that this Court
The Court of political in- can serve to not held that divisiveness alone has permissible decline to otherwise conduct. And we validate subsidy today. does not involve a direct so hold church-sponsored This case colleges, religious insti- or other schools potential political inquiry divisive- no into tutions, hence 403- Allen, is even called Mueller v. 463 U. S. for, ness litigation any apart n. 11 from this event, political over no or divisiveness there is evidence of friction 40-year history the créche in Christmas Pawtucket’s the inclusion celebration. The District Court stated that apparent years by no the créche for the 40 “marked has been history.” a “calm dissension” and that the has had Supp., Curiously, to hold 525 F. it on at 1179. went political engendered evi- was this lawsuit divisiveness litigant entanglement. cannot, dence very A of excessive ap- commencing however, act create lawsuit, *15 pearance exploit of divisiveness and then it as evidence of entanglement. city
areWe purpose satisfied that the has a secular for in- cluding city the créche, that impermissibly has not ad- religion, including vanced and that the créche does not create entanglement excessive government. between and
HH > describes the creche as a “re-creation Justice Brennan of an event that lies at the post, heart of Christian faith,” at 711. painting, passive; The créche, like admittedly a is it is a origins reminder of the of Christmas. Even the traditional, purely displays secular extant at Christmas, with or without inevitably religious creche, would recall the nature of the Holiday. display engenders friendly community spirit goodwill keeping with the season. The créche well special meaning have to those whose faith includes the cele- religious bration of origins Masses, none but who sense the the Christmas celebration fail would to be aware of its reli- gious implications. display brings people That the into the city, central and serves commercial interests benefits and employees, merchants and their does not, as the dissent points out, display. determine the character of the That a prayer invoking guidance Congress preceded Divine and by partisan followed budgets, debate and conflict over taxes, myriad national subjects, defense, example, mundane thought has never been to demean or taint the sacredness of the invocation.12
Of course the
religious
créche is identified
one
faith
but no
examples
more so
prior
than the
we
set out from
have
cases which we found no conflict with the Establishment
12Justice Brennan
“by
states
focusing
holiday
‘context’ in
on
which the nativity scene appear[s],”
explain away
the Court “seeks to
clear
import
créche,”
post,
equated
and that it has
the créche with a
reindeer,
Santa’s house
post,
at 711-712. Of course
this is not true.
Maryland,
g.,
U. S.
See, e. McGowan
Clause.
(1961);
Chambers,
It
The Court problems” gave Religion in the 18th rise to the Clauses century today. Everson, S., are far 330 U. of less concern perceive Archbishop at 8. are of Canter- We unable to the bury, Bishop powerful of leaders Rome, the or other heritage every public acknowledgment behind of the long officiallyrecognized by branches the three constitutional government. Any symbols pose of notion a real that these danger of establishment of a state church is farfetched indeed.
Y
constitutionally
That this
ex-
Court has been alert to the
pressed opposition
religion is shown
to the establishment of
programs
holdings striking
as
numerous
down statutes
g., Illinois
See,
violative of the
e.
Establishment Clause.
Education,
ex rel.
(1948);
333
203
McCollum v. Board
U. S.
(1968);
Epperson Arkansas,
Lemon
v.
687 Religious Liberty Nyquist, Public Education & v. (1973); Pittenger, (1975); Meek v. S. 756 U. S. 349 U. (1980). Graham, and Stone U. S. The most recent example scrutiny found in of this careful is the case invali- dating granting municipal ordinance to a church a virtual power licensing liquor veto over the establishments near Den, Inc., church. the Larkin Grendel’s S. 116 U. together abundantly these Taken cases demonstrate protect genuine objectives Court’s to concern the of the day impose It is far late in Establishment Clause. too reading country. crabbed Clause on the VI notwithstanding religious significance We hold that, city creche, Pawtucket has violated Estab- Accordingly, lishment Clause of the First Amendment.13 judgment Appeals Court is reversed.
It is so ordered. O’Connor, Justice concurring. opinion
I separately concur in the I the Court. write suggest a clarification of our Establishment Clause doctrine. suggested approach leads to the same result in this case opinion, taken I Court, and the Court’s as read my analysis. it, consistent with
I prohibits government The Establishment Clause mak- from ing religion any way person’s adherence to a relevant to a standing political community. in run Government can prohibition ways. principal afoul of that in two is ex- One 13The Valente, Court Appeals viewed Larson v. (1982), 456 228 U. S. commanding as scrutiny” city’s a “strict ownership due to the of the $200 creche which it as a considers between and other discrimination Christian religions. It is require scrutiny correct that we or strict of a statute practice patently discriminatory on its But we are see this face. unable to display, any part it, or explicitly discriminatory as contem the sense plated in Larson.
688 may which institutions, with entanglement
cessive institutions, give of the independence interfere with powers governmental or to government access institutions foster religion, nonadherents shared fully not along defined constituencies of political the creation 116 Inc., 459 U. S. Den, v. Grendel’s E. Larkin lines. g., is govern- infringement direct and more (1982). The second Endorsement of religion. or disapproval ment endorsement outsiders, are they nonadherents to message a sends accompany- and an community, political full members favored insiders, are they to adherents message ing sends the Disapproval community. of the political members District School Abington generally See message. opposite (1963). 374 U. S. v. Schempp, articulated test three-part used the have cases prior
Our (1971), 612-613 a 602, 403 U. Kurtzman, S. in Lemon v. gov forms of unconstitutional these two detecting to guide * however, clear, entirely never been It has action. ernment pass three must that a statute in Lemon v. Kurtzman wrote *The Court challenge. Clause tests withstand Establishment to second, prin- its legislative purpose; have a secular “First, statute must reli- nor inhibits one that neither advances effect must be cipal primary or entan- ‘an excessive finally, must not foster gion; the statute omitted). (citations S., 612-613 religion.’” 408 U. at glement with constitutionality, this uniformly applicable test for phrased as a Though dealing signpos[t]’ helpful three-part “provides [a] ‘no more than test 388, Allen, 463 U. S. challenges.” Mueller Clause Establishment (1973)). (1983) 734, McNair, Hunt U. S. (quoting plainly em- practice that Moreover, or the Court has held that a statute closely fitted among religions be must an intentional discrimination bodies challenge. purpose in order survive constitutional compelling to a state opinion ob- As Valente, the Court’s Larson v. 456 U. S. discrimination. ante, not involve such serves, n. this case does in the test believe, to the Lemon standard, may I be assimilated Larson give should discrimination I Plain intentional propose. version clarified showing compelling by a presumption, rise be overcome which constitutes fit, challenged government conduct purpose and close that the disapproval the disfavored. an of the favored endorsement *18 principles parts to the en- of the test relate how the three Focusing on Clause. institu- shrined the Establishment disapproval entanglement and on endorsement tional analytical an device. the Lemon test as clarifies II In there case, found, this as even District Court is no entanglement. respondents Nevertheless, institutional political contend that the divisiveness caused Pawtucket’s excessive-entanglement its creche violates the opinion prong Lemon test. The Court’s follows the of the suggestion Allen, in Mueller v. 463 U. S. n. 11 388, 403-404, (1983), inquiry potential political and concludes that “no into divisiveness is even called for” this case. at 684. Ante, my political along religious view, divisiveness lines should independent constitutionality. not be an test of Although political of our several cases have discussed divi- entanglement prong g., siveness under the e. Lemon, see, Religious Liberty Committee Public Education & for (1973); Nyquist, Kurtzman, 413 U. S. Lemon v. supra, we have never relied on divisiveness as an independent ground holding government practice for un- Guessing potential political constitutional. divisive- specu- government practice simply ness inherent in a is too enterprise, part lative an because the existence of the litigation, may politi- as this illustrates, case itself affect the response government practice. cal to the divisive- Political admittedly ness is an evil addressed the Establishment Clause. Its existence institutional be evidence that entanglement government practice is excessive or that a perceived religion. as an But the constitu- endorsement of inquiry ultimately tional should focus on the character government activity might divisiveness, not cause such entanglement prong on the divisiveness itself. The properly entanglement. Lemon test is limited to institutional
j )I——I I—I has en- whether Pawtucket case is in this issue The central Christianity by To answer of the creche. its dorsed in- both what Pawtucket question, examine must we displaying creche and what the to communicate tended purpose actually conveyed. city’s display The message the represent these two prongs Lemon test of the and effect city’s meaning action. aspects of the the depends meaning to its audience both statement of a The “objective” speaker and on the mean- the on the intention community. listeners need ing in the Some the statement discerning rely solely the themselves the words on not by, example, they judge speaker’s the intent for can intent: asking questions examining the statement or context of speaker. not have or will not seek listeners do Other of the rely They on intent. will instead evidence of access to such message actually con- for them the themselves; the words actually something veyed If the audi- intended. be “speaks” by always government large, it is when ence is inevitably portion of the audience will deed, word or some by “objective” message content of receive a determined inevitably portion will receive statement, and some subjective message. Examination of both the intended message objective components communicated necessary to determine a action is therefore meaning. whether the action carries forbidden govern- purpose prong The of the Lemon test asks whether religion. purpose disapprove of ment’s actual is to endorse or irrespective government’s prong The effect asks whether, conveys purpose, practice fact actual under review message disapproval. an- An affirmative of endorsement or challenged practice question swer to either should render invalid.
A gov- requires purpose prong that a Lemon test requirement activity purpose. That ernment have a secular is not satisfied, however, the mere existence of secu- some purpose, lar by religious however purposes. dominated Stone v. (1980), Graham, 449 example, U. S. the Court posting copies held that of the Ten Commandments in schools purpose prong violated the yet Lemon test, the State plainly had objectives, some secular instilling such as most of the values of the Ten Commandments and illustrating their legal system, connection our but see 449 U. atS., 41. See *20 Abington also Schempp, School District v. 374 S.,U. at 223- proper inquiry 224. The purpose prong under the of Lemon, I government submit, is whether the convey intends to a message of disapproval endorsement or religion. of
Applying that formulation to this I case, would find that Pawtucket did not convey any intend to message of endorse- Christianity ment of gions. disapproval or of non-Christian reli- purpose The evident including of the créche in the larger display promotion was not religious of the content of the creche but celebration of the holiday through its symbols. traditional public holidays, Celebration of which significance have cultural they even if religious also have aspects, legitimate is a purpose. secular finding District display Court’s that the of the créche purpose had no secular was based reasoning. on erroneous The District Court believed that it city’s should ascertain the purpose displaying in separate the créche apart from the general purpose setting up in display. It also that, found because the tradition-celebrating purpose suspect was in eyes, city’s court’s use unarguably of an religious symbol “raises an inference” of intent to endorse. When viewed light legal principles, correct finding the District Court’s purpose unlawful clearly was erroneous.
B Focusing government on the evil of disap- endorsement or proval makes clear prong that the effect Lemon properly test is interpreted require not to invalidation government practice a merely because it fact causes, of reli- inhibition or effect, advancement a primary even as Comm’n, 397 U. S. Tax in Walz v. upheld The laws gion. char- educational, religious, for (tax (1970) exemption Maryland, S. 366 U. in McGowan organizations), itable Zorach law), and closing Sunday (1961) (mandatory school (released from time (1952) Clauson, U. S. but effects, such instruction), had off-campus is cru- Clause. What Establishment not violate did they of com- the effect have practice a is that government cial or dis- endorsement message municating effect, having that practices only It is religion. approval make religion unintentionally, intentionally whether in the to status perception, or public reality relevant, community. political not com- believe, I does creche, of its
Pawtucket’s
to endorse
intends
the government
message
municate
Although
the créehe.
represented
beliefs
the Christian
creche,
significance
sectarian
indeed
setting,
not neutralized
found,
Court
the District
fairly
viewers
what
changes
setting
holiday
the overall
*21
typical
of
display
the purpose
to be
understand
—as
content
religious
neutralizing
though
setting,
museum
of endorsement
any message
negates
painting,
religious
of a
and
holiday,
a public
celebrates
display
The
content.
of that
is understood
holiday
of that
declaration
that
contends
no one
very
has
itself
holiday
The
of religion.
endorsement
to be an
cele-
Government
traditions.
components
secular
strong
common, generally
extremely
is
which
holiday,
of the
bration
the holi-
of
content
religious
to endorse
understood
is not
is not
Thanksgiving
of
celebration
government
as
just
day,
of
symbol
ais
traditional
The créche
so understood.
purely
along with
commonly displayed
very
that
is
holiday
Pawtucket.
was in
as it
symbols,
secular
display
government’s
to make
combine
These features
an
more
no
setting
physical
particular
this
of the creche
“acknowl-
governmental
such
than
of religion
endorsement
edgments”
religion
legislative prayers
of
as
ap-
type
proved in Marsh
(1983),
govern-
Chambers,
are consistent with this conclusion. The court found as facts that the créche has a content, that it would not be insignificant seen an part display, reli- its gious content is not setting, neutralized that the dis- play celebratory and not city instructional, and that the did not any possible seek to counteract religious message. findings These imply do not that the créche communicates government approval Christianity. The District Court *22 also found, government however, that the was understood place imprimatur to its on the content of the créche. But whether a activity communicates endorse- ment of question simple is not a historical fact. help evidentiary it, the Although answer submissions question racial or sex-based whether question like the is, large message, invidious an communicate classifications judicial question on the basis part legal answered to be conclu- District Court’s interpretation The of social facts. display of créche concerning its Pawtucket’s the effect of sion law. matter of as a was error
HH < unique judged m practice its Every government must be an en- it constitutes whether to determine circumstances making religion. disapproval deter- that or dorsement keep mind the fundamental both must mination, courts by in our constitutional Clause place the Establishment held ways myriad, Establishment in which subtle and the scheme practices that Government values can be eroded. Clause acknowledge with events purport to celebrate scrutiny. judicial subjected significance to careful must be alleged city have violated of Pawtucket The rep- endorsing beliefs the Christian Clause Establishment display. in its Christmas créche included resented scrutiny challenged practice it de- Giving the careful particular at say créche I that serves, cannot effect or had the intended endorse this case was issue Christianity. agree endorsing the Court I with judgment reversed. must be below Marshall, Jus- Justice Brennan, whom
Justice dissenting. join, Stevens Blackmun, and Justice tice compact phrases principles in announced today ante, Religion us, reminds as the Court have, Clauses apply. uncer- with that proved Faced difficultto 678-679, guidance settled tainty, properly to the for looks the Court (1971), Kurtzman, 403 U. S. in Lemon test announced practice governmental in- challenged assessing whether of re- impermissible step establishment toward the an volves case, the Applying this ligion. test to at 679. Ante, *23 Court reaches an essentially narrow result which turns largely upon the particular holiday context in which the city of Pawtucket’s scene nativity appeared. The Court’s deci- sion implicitly leaves open questions concerning the constitu- of tionality the public on display public property of a creche standing alone, or the public of other distinctively religious symbols such as a cross.1 Despite the narrow con- tours of the Court’s opinion, our precedents in my view com- pel the holding that Pawtucket’s inclusion of a life-sized dis- play depicting the biblical description of the birth of Christ as part of its annual Christmas celebration is unconstitutional. Nothing of history such practices or the setting which the city’s créche is presented obscures or diminishes the plain fact that Pawtucket’s action amounts to an imper- missible governmental endorsement of particular faith.
HH
Last
I
Term,
expressed the hope that the Court’s decision
in Marsh v. Chambers,
Court’s reluctance to disturb a community’s chosen method an celebrating such agreeable holiday is understandable, that cannot justify Court’s departure from controlling precedent. In my view, Pawtucket’s maintenance and dis play public expense of a symbol as distinctively sectarian as a creche simply be cannot squared with our prior cases. And it is plainly to the contrary purposes and values Establishment Clause to as the pretend, Court does, the otherwise secular setting Pawtucket’s scene nativity dilutes some fashion the créche’s singular religiosity, the city’s annual display reflects nothing more than an “acknowledgment” of our shared national heritage. Neither the character of the Christmas holiday itself, nor our heritage of religious expression supports this result. Indeed, our *25 remarkable precious and religious diversity a Nation, see Torcaso v. Watkins, 367 U. 488, S. 495 (1961); Abing ton School Dist. v. Schempp, 374 U. 203, S. (1963) 240-241 J., concurring), which the Establishment Clause (Brennan, seeks to protect, runs directly counter to today’s decision.
A As we have to sought meet new problems under arising Establishment Clause, our decisions, with few exceptions, have demanded that a challenged governmental practice sat- isfy the following criteria:
“First, the [practice] must a have secular legislative pur- pose; second, its or principal effect primary be one must that neither advances nor inhibits religion; finally, [it] must not foster ‘an excessive government entanglement with religion.’” Lemon v. Kurtzman, 403 U. at 612- S., (citations 613 omitted).3 3See Larkin v. Den, Inc., Grendel’s supra, at Vincent, Widmar v. 123;
454 263, U. Walter, (1981); Wolman v. S. 271 229, 433 (1977); S.U. 236 Comm’n, Walz v. Tax 664, (1970). 397 U. S. 674 As Justice O’Connor’s concurring opinion rightly observes, provides this helpful analytical test a 698 expresses three-part the essential test
This well-defined Thus, the Clause. animating Establishment concerns government organs re- designed to ensure test religious for “a apart affairs, strictly separate from main destroy govern- religion to tends government and union Engel 421, 370 U. S. religion.” Vitale, v. degrade ment guarantee (1962). seeks And it 431 religion respect neutrality position of maintains practice promulgation and inhibits the nor neither advances Education, Board v. Everson beliefs. (“Neither (1947) [a the Federal Govern- nor State 1, 15 U. S. ment] religions, religion, aid all pass aid one laws which can another”); Epperson Arkansas, v. prefer over one (1968); Public Educa- Committee 103-104 97, S.U. Liberty Nyquist, S. 792-793 Religious v. U. tion & regard, our examination be alert in we must In this only practice official establish- challenged for an any evils which religion, for those other also but ment support, and ‘sponsorship, financial aimed—“ was Clause activity.’” sovereign in involvement active Liberty Religious & Education Public Committee for Comm’n, 397 (quoting Tax supra, Nyquist, Walz at (1970)). U. S. I am three-part créche, Pawtucket’s
Applying test to city’s in its Christ of the créche persuaded inclusion that the “clearly . . . secular display simply not reflect does mas purpose.” *26 typical case Nyquist, supra, the 773. Unlike at expres contemporaneous some record reveals in which the Ep g., religion, e. see, purpose to advance of a clear sion Engel Vitale, supra, v. 107-109; person Arkansas, at v. purpose, see, conversely, secular supra, a clear 423, or, at Walter, v. supra, 613; g., at Wolman Kurtzman, v. e. Lemon Paw- in case —whether posed this question considering in the tool central endorsing by Clause of the Establishment has run afoul tucket Ante, 690. at display créche. through its (1977), explicit 433 U. 229, 236 S. here we have no statement purpose by municipal accompa- Pawtucket’s nying purchase, display, decision to its and maintain the purpose may créche. Governmental in- nevertheless be ferred. For in instance, Stone Graham, 449 U. 39, S. (1980) curiam), (per despite this Court found, the State’s purpose reminding avowed schoolchildren of the secular application Decalogue, “pre- commands of the that the purpose posting eminent for the Ten Commandments on plainly religious schoolroom walls is in nature.” the present city purposes case, the claims that its were exclu- sively sought, according secular. Pawtucket to this view, only participate to holiday the celebration of a national people to promote attract the downtown area in order to pre-Christmas help engender spirit retail sales and to goodwill neighborliness commonly associated with the Christmas season. Brief for Petitioners 29.
Despite compelling aspects these assertions, two of this generally prudent case indicate that our “reluctance to at- tribute governmental body, unconstitutional motives” to a (1983), Mueller v. Allen, U. 388, S. should be over- come. First, as was true in Larkin v. Den, Inc., Grendel’s (1982), 459 U. 123-124 116, S. all of Pawtucket’s “valid secu- objectives readily lar accomplished can be other means.”4 Plainly, city’s celebrating holiday interest in and in promoting goodwill both retail fully sales and are served the elaborate wishing of Santa Claus, reindeer, and already part wells that are of Pawtucket’s annual Christ- 4 I puzzling, find say it least, today Court should find “irrelevant,” ante, at n. city’s objectives the fact that secular can readily be fully accomplished including créche, without since only last Term Larkin Den, Inc., Grendel’s S., 123-124, 469 U. upon Court relied precisely point striking the same a Massachu down setts statute which vested in governing power church bodies the to veto applications liquor licenses. It willing seems the Court is to alter its analysis from Term to preferred Term order to suit its results. *27 scene, More the unlike nativity mas display.5 importantly, other element of the Park reflects a every Hodgson display, sectarian that the avowed exclusivity purposes celebrating retail commerce the season and do holiday promoting simply constitutional, encompass. To be found Pawtucket’s sea- sonal celebration must at least be nondenominational and not serve to The inclusion of a promote religion. distinctively creche, however, element like the demonstrates that behind the in- lay a narrower sectarian decision to purpose the clude a scene. That creche retained this reli- nativity character gious people municipal government the Pawtucket the in suggested by Mayor’s testimony trial which he stated that for as as in him, well others the city, the effort to eliminate the scene from nativity Pawtucket’s Christmas celebration “is a towards step establishing another that religion, non-religion it be.” 100.6 App. Plainly, the city and its leaders understood that the inclusion of the créche its display would serve the wholly religious purpose representatives community 5 Several of Pawtucket’s business testified although display played important the overall Christmas an role in promoting trade, holiday display downtown purpose the would serve this equally if App. 133, 135, well even the créche were removed. 139-140. Mayor nativity eliminated, also testified if the scene had to be the city Id., would continue to erect the annual without it. at 115. 6The District evidence, objection Court also admitted into without from petitioners, a correspondence by Mayor considerable amount of received Lynch support of maintaining the city’s display. créche Christmas letter, appears One such which representative many, to be of the views of congratulates Mayor on keep‘Christ’in his efforts “to .” Christmas. . . App. 161. For the findings concerning meaning District Court’s letters, (RI1981) (“Overall these see Supp. 1150, 525 F. tenor correspondence represents is that the presence lawsuit an attack on the part community’s life, majority attempt deny an to ability express to publically traditionally its beliefs in a desired and accepted way”). Furthermore, found, City as the District Court “the has accepted implemented predominantly the view of its Christian citizens ‘goodthing’ that it is a display,. have a creche in a Christmas . . because good thing ‘keep it is a Id., Christ Christmas.’” at 1173. *28 “keeping]
of
in
‘Christ
Supp.
Christmas.’”
525 F.
(RI 1981).
1173
From this
impossi-
record, therefore, it is
say
ble to
with the
of
possible
kind
confidence that was
in
Maryland,
McGowan v.
(1961),
Finally, inclusion of a créche it is evident that Pawtucket’s display pose significant part does as of its annual Christmas fostering entanglement.” threat of “excessive As the Court notes, ante, at the District Court found no administra- primarily city entanglement in this because the had case, tive been able to administer the annual without extensive Supp., consultation with officials. 525 F. at finding, is no that course, 1179. Of there reason to disturb noting today’s decision, but it is worth that after adminis- entanglements may develop. trative other well Jews and groups, prompted perhaps by Mayor’s non-Christian re- displays,8 mark that he will include a in can Menorah future expected sym- press government be for inclusion of their requests, government bols, and faced with have to such will accommodating become involved in the various demands. Liberty Religious Cf. Committee v. Public Education & for Nyquist, (“competing [by religious 413 S.,U. at 796 efforts groups] gain support government” may or maintain the strife”). “occasio[n] importantly, considerable al- civil More though political apparent no divisiveness was Pawtucket App.
8. See 104.
703
to the
prior
filing
respondents’
lawsuit,
act,
District
found,
Court
unleashed powerful emotional reactions
which divided the city along religious lines. 525 F.
at
Supp.,
1180. The fact that calm had prevailed prior to this suit does
not immediately suggest
the absence of any division on the
point for, as the District Court observed,
quiescence
those
to the
opposed
creche
have
reflected
more
nothing
than their sense of
futility
Id., at
opposing the majority.
1179.
course,
Of
the Court is correct to note that we have
never held that
for
potential
divisiveness alone is suffi-
cient to invalidate a challenged governmental practice; we
have, nevertheless,
repeatedly emphasized that “too close a
between
proximity”
religious and civil authorities, Schempp,
S.,
J.,
U.
at
concurring), may represent
(Brennan,
a “warning signal” that the values
embodied
the Establish-
ment Clause are at risk. Committee
Public Education &
Religious Liberty Nyquist,
supra,
at 798.9
Furthermore,
the Court should not blind itself to the fact that because com-
Allen,
Mueller suggestion
388, 403-404,
U. S.
n.
ante,
ante,
(1983),
upon by
today,
relied
684;
the Court
see
at 689
J., concurring),
(O’Connor,
inquiry
potential political
into
divi
*30
unnecessary
siveness is
church-sponsored
absent direct subsidies to
colleges,
schools or
reading
prior
derives from a distorted
of our
cases.
Simply because the
involving
Court
Lemon —a case
such subsidies—
Everson inquired
potential
distinguishing
into
divisiveness while
involving
any authority
Allen —cases not
provide
such subsidies —does not
that the Court Lemon meant to confine the
proposition
for the
divisive
Indeed,
identical to Lemon itself.
inquiry only
factually
ness
to cases
Walz,
question
the Court considered the
of
in the context of
divisiveness
however,
exemptions
state tax
agree,
to all
institutions.
I
helpful suggestion
political
divisiveness
that while
Justice O’Connor’s
inquiry
by
Clause,”
is “an evil
ultimate
addressed
the Establishment
activity
might
always
must
on
focus
“the character of the
Ante,
that,
Having
I should also
cause such divisiveness.”
at 689.
said
appar
emphasize
disagree fundamentally
that I
with Justice
O’Connor’s
kind of
is not the
ent conclusion that Pawtucket’s inclusion of the créche
governmental
along
lines.
may engender sharp
act that
division
contrary
history
is
of this case.
demonstrated
controversy
over
composition,
in religious
munities differ
will
may
religious symbols
adopt
local governments
whether
communities,
In
non-Christian
many
fester.
continue to
similar to Paw-
practices
to combat
expected
can be
groups
in areas where there are
so
tucket’s;
especially
this will be
non-Christian minorities.10
substantial
the District Court’s careful
of
considering
findings
In sum,
called for
our
analysis
prior
under
the three-part
fact
that Pawtucket’s dis-
concluding
I have no
cases,
difficulty
is unconstitutional.11
of the créche
play
relating
governmental
endorsement of reli
10 Thisand similar issues
engendered continuing controversy which
gious symbols has
has reached
g., American
Liberties
e.
Civil
Union
many
See,
the courts on
occasions.
Commerce, Inc.,
County
Georgia v. Rabun
Chamber
planation, analy- see three-prong n. only sis is not Appeals available As standard review. the Court *31 Valente, in Larson recognized, scrutiny” analysis adopted the “strict S., 244-246, governmental policy U. at addresses or situations which a
B The Court advances two principal arguments to support its conclusion that the Pawtucket créche satisfies the Lemon test. Neither is persuasive.
First. The Court, by on focusing the holiday “context” in which the nativity scene appeared, seeks to explain away the clear religious of import the créche and the findings of District Court that most observers understood the créche as both a symbol of Christian beliefs and a symbol the city’s those beliefs. See ante, at 679-684; see support ante, also at 694 (O’Connor, J., concurring). Thus, although the Court concedes that the city’s inclusion of the scene nativity plainly serves “to depict origins” of Christmas as a “significant religious event,” ante, at 681, 680, and that historical créche “is identified with one religious faith,” ante, at we are nevertheless expected believe that Pawtucket’s use the créche does not signal city’s for the support sectarian that the symbolism scene nativity evokes. effect créche, of course, must be not gauged its only by inherent re- practice grants official preference religious to one denomination an- over (CA1 1982). other. 691 F. 2d 1034-1035 IWhile am inclined to agree with Appeals the Court of practice test, that Pawtucket’s fails this it necessary is not I point my address this in view of conclusion that the city’s inclusion of the créche violates the standards fixed in Lemon. Furthermore, I Schempp continue believe that the test I forth in is set appropriate an means determining rights guaranteed by whether view, Establishment Clause infringed. my have been “those involve- (a) religious ments of essentially with secular institutions serve the which religious (b) activities institutions; employ organs gov- (c) essentially religious ernment for purposes; essentially use governmental ends, means to serve where would secular means suffice” S., case, par- must be struck I present down. 374 U. In the 294-295. ticularly met, believe the third since all of element of this test governmental pro- holiday Pawtucket’s season goals celebrating — moting fully commerce —can be realized use of the créche without the reindeer, employing wholly Claus, such and cutout secular means as Santa figures. supra, at 699-700. *32 by setting
ligious significance it also the overall which but reality appears. claim, does, But it blinks to as Court distinctively religious object by including as the such a display, has done no more Pawtucket creche its Christmas symbol holiday, “traditional” of the than make use of a thereby purged of its content and the créche has only religion. an “incidental and indirect” benefit on conferred struggle ignore the clear effect of The Court’s misguided to me for several reasons. In the créche seems place, city positioned the first has the créche a central Hodgson display. highly location within the Park visible findings regard unambiguous: The District Court’s this are “[DJespite ground the small amount of covered regard insig- creche, viewers would creche as an part display. It nificant of the is an almost life sized tab- picket Furthermore, leau marked off a white fence. significance. its location lends the creche The creche stops faces the Roosevelt Avenue bus and access stairs display placed. where the bulk of the Moreover, enticing parts creche is near two of the most of the dis- play talking wishing for children—Santa’s house and the Although recognizes well. the Court that one cannot possible vantage points, see the creche from all it is clear City’s photos people standing from the own at the looking two bus shelters and down at the will see centrally prominently positioned.” the creche (citations Supp., F. omitted). at 1176-1177 footnote omitted; city nothing govern- Moreover, the has done to disclaim approval religious significance ment créche, suggest represents only religious symbol that the créche one among many might others that be included in a seasonal dis- play truly providing catalog aimed at a wide of ethnic and religious celebrations, or to disassociate itself from the reli- gious Abington content of the créche. School Dist. v. Schempp, reading S.,U. at 225, we noted that aloud
from the
permissible
Bible would be a
schoolroom exercise
only
“presented
if it was
objectively
part
pro-
aof secular
gram of education” that
any
would
message
gov-
remove
ernmental
religion.
endorsement
Similarly,
when the
Appeals
Court of
for the District of
ap-
Columbia Circuit
proved the
part
inclusion of a creche as
*33
of a
“Pageant
national
parkland
of
on
Peace”
adjacent
federal
to the White
it
House,
express
did so on the
condition that the Government would
“explanatory
erect
plaques” disclaiming any sponsorship of
religious beliefs associated with the créche. Allen v. Mor-
App.
ton, 161 U. S.
D. C. 239, 241-242,
Third, we have acknowledged that an other- setting wise secular alone does justify govern- sufficeto a practice mental that has aiding the effect religion. of Hunt v. McNair, 413 (1973), U. 734, S. 743 for instance, we “[a]id observed normally may that thought be pri- to have a mary advancing effect of . . . [supports] when it a specifically religious activity in an substantially otherwise setting.” secular demonstrably The secular context of education, therefore, did not challenged practice save the of prayer school Engel or in Schempp. Similarly, in Tilton v. Richardson, 403 (1971), U. S. despite gener- the ally secular financing thrust legislation of the under review, the unanimously Court struck aspect pro- down that gram permitted which eventually church-related institutions to assume total control buildings over the use of constructed with federal aid.12 12 Indeed, in the cases, aid-to-sectarian-schools the state financing schemes under review always almost require specific us on a focus ele ment that violate the Clause, though Establishment even part it is a complex a and otherwise secular statutory e. g., Meek See, framework.
Pittenger, 421 U. S.
(1975);
Walter,
Wolman
Second. The Court also the créche entertaining beguilingly simple, yet faulty syllogism. begins by noting government may recognize Court that Day public holiday; Christmas as a the Court then asserts nothing that the creche is more than a traditional element of Christmas celebrations; and it concludes that the inclusion part government’s of a créche as of a annual Christmas cele- constitutionally permissible. bration is ante, at 680-683, ante, see also at 692-694 (O’Connor, J., concur- 685-686; ring). apparently The Court believes that once it finds that designation public holiday of Christmas as a is constitu- tionally acceptable, virtually it is then free to conclude that every governmental form of association with the celebration holiday danger- is also constitutional. The vice of this ously superficial argument is that it overlooks the fact that holiday the Christmas in our national culture contains both say secular and sectarian elements.15 To may recognize holiday’s traditional, secular elements of 15Both the District Court and Appeals recognized the Court of comprises Christmas both secular and sectarian elements and that this dis tinction is of importance. Supp., 1163-1164; constitutional See 525 F. *35 2d, id., 1032-1033; 691 F. (Bownes, J., concurring). at 1035-1037 addition, many explained historically observers have that the Christmas celebration traditional, derives gift-giving both from folk elements such as celebrations, and winter seasonal as well as from Christian ele g., Barnett, e. See, ments. Christmas, J. Study The American A in Na (1954) (hereafter tional Culture 9-14 Barnett); Meyers, R. Celebrations: Complete Holidays (1972); Book of American 309-344 B. Rosenthal & Rosenthal, (1980). N. Christmas 14-15 community spirit, does public gift-giving, festivities, and indiscriminately may the embrace government that not mean holiday. aspects Indeed, its distinctively the of sectarian advanced approve has creche, the Court eagerness the to appear to allow the simplistic it would that so a rationale Mayor participate of a celebration the to of Pawtucket unobjec- just another be this would since Mass, Christmas holiday.” city As is way the to “celebrate the tionable fundamentally logic is the Court’s below, demonstrated why public des- the reason it obscures because both flawed constitutionally holiday Day ignation aas of Christmas acceptable, secular the distinction between and blurs distinctively religious character, aspects its of Christmas by exemplified the créche. as Day recognize government Christmas as to decides
When holiday, public than cal- it no more accommodate does plain many public Ameri- that activities to the fact endar visiting day spend expect with their that time on cans will perhaps enjoying attending religious services, and families, respite preholiday The Free activities. Exercise from some necessarily compel government course, does not Clause, provide Establish- but neither is the accommodation, this step. Clauson, Zorach v. offended such a Cf. ment Clause the celebration Because it is clear 343 U. S. elements, it has both secular and Christmas sectarian taking holiday, note of the well be wholly seeking simply to serve the same secular is goals kinds day goodwill promoting and a common instance, —for Sunday Closing justify Laws in of rest —that were found to (1961).16 Maryland, If 366 U. S. McGowan go participate secular celebration further and officials holidays federal noting that shares the list of It is worth Christmas July, secular, holidays Memo patently patriotic Fourth such Day. See 5 Day, Washington’s Birthday, Day, and Veterans rial Labor 6103(a). distinctly reasonably § infer secular mayWe from U. S. C. it too is keeps this list that company that Christmas on character essentially reasons. included for secular *36 by, example, decorating public places with Christmas — images
such garlands, secular as wreaths, fig- or Santa Claus they move closer to the limits of their constitutional ures — power but nevertheless remain within the boundaries set the Establishment Clause. But partici- when those officials pate appear in or distinctively endorse the ele- ments of this they otherwise secular upon event, encroach First Amendment point freedoms. For it is at that that the government brings theological to the forefront the content holiday, places prestige, power, and financial support authority of a civil particular in the service of a faith.
The inclusion creche Pawtucket’s otherwise secular clearly celebration of Christmas principles. violates these figures Unlike such secular as Santa Claus, reindeer, and nativity represents carolers, a scene far more than a mere symbol “traditional” of Christmas. The essence of the symbolic purpose creche’s prompt and effect is to the ob- experience server to simple ap- a sense of awe and wonder propriate contemplation to the of one of the central elements dogma of Christian God sent His Son into the world to —that Contrary be a suggestion, Messiah.17 to the Court’s representation creche is from “particular far a mere of a his- toric event.” Ante, at 686. It is, instead, best un- mystical derstood aas re-creation of an event that lies at the heart of suggest, Christian faith.18 To does, the Court Auld, See W. (1931); McArthur, Christmas Traditions A. The Evolu (1953). tion of the Christian Year 18As one commentator “Today has observed: is course it admitted even exegetes Catholic recounting [the Biblical birth] stories Christ’s are a largely uncertain, collection of mutually contradictory, strongly leg endary and ultimately theologically narratives, with a motivated character of their own. Unlike life, the rest of happenings Jesus’ there are dream here and angels constantly enter on heavenly it —as scene leave messengers announcing important of God Kung, Being H. events.” On (E. A (footnote omitted). Christian Quinn trans., 1976) See also Brown, R. The Birth (1977); Elliott, of Messiah Birth 25-41 Background Nazareth, of Jesus of History Today 774-780 merely symbol and therefore no “traditional” that such *37 only reindeer is not offensive house or from Santa’s different profound significance,19 has but the creche those for whom to religious personal insulting reasons who insist for to those “history” part story in nor is no sense that the Christ “heritage.”20 of our national unavoidable element an simply in cannot this context reasons, the creche For these ordinary playing museum same role that an be viewed 685. The 676-677, 683, Court ante, does. See displaying prohibiting Pawtucket from assume that seems to college prohibiting a state tantamount to a créche would be including Paradise Lost a course the Bible or Milton’s from religiously English in- But in those cases the literature. on solely being spired considered as literature. materials are single particular plainly purpose out the reli- not to The inspired may gious authors, but to see beliefs that have imaginative larger writings universe outlines of a these literary expression.21 same forms of The shared with other study art; to when said of a course devoted be emphasis is architecture, the course turns to Gothic exalt, the cathedrals but not on the beliefs which religious] upon consequences [such the “aesthetic rather thought.”22 19Many strong objections to what Christian commentators have voiced through they consider to be the debasement and trivialization of Christmas e. See, g., public a connection with celebrations. too close commercial and Kelley, Beyond Separation State, & 181 of Church and 5 J. Church State (1963). generally See Barnett 55-57. 20 & L. Pfeffer, A. in the United States See Stokes Church and State (rev. (1972); 1964); Morgan, Supreme Religion ed. R. The Court and reli (discussing opposition by Barnett 68 and other non-Christian Jews Christmas). Talmage, gious also groups public See celebrations of supra n. 14. (1976). Frye, Scripture N. The 14-15 See Secular (1956). Panofsky, Simson, E. von also 0. Gothic Cathedral 27 explanation Meaning Compare Jackson’s the Visual Arts Justice can, in correct study religiously inspired of his view that the material In this plays case, comparable contrast, the creche no poetry secular role. Unlike the of Paradise Lost which stu- dents in a appreciate literature course will seek primarily for esthetic or angels, historical shepherds, reasons, the Magi, nativity and infant of only Pawtucket’s scene can be symbols particular viewed as of a set of beliefs. It would be another matter if displayed were créche in a setting, museum company religiously inspired other example, among artifacts, as many, an symbolic repre- religious myths. sentation of setting, In that we would have objective guarantees that suggest the créche could not that a particular singled faith had been out for favor and rec- ognition. The effect of Pawtucket’s créche, however, is not *38 by any limiting confined of these attributes. In the absence any symbols of religious other any or of neutral disclaimer, inescapable effect of the créche will be to remind the av- erage religious observer of the roots of the celebration he is witnessing scriptural and to call message to mind the that the nativity symbolizes. gone The fact that Pawtucket has to making the trouble of public such ah elaborate celebration including and of a créche in setting that otherwise secular in- evitably serves to city reinforce the sense that the means to express solidarity message with the Christian of the créche and to unworthy dismiss other faiths of similar attention support.
II Although application the Court’s relaxed of the Lemon test to regrettable, Pawtucket’s créche is it is at under- least properly standable and particular limited of facts this opinion, case. The Court’s however, also sounds broader setting, part made a be of a secular educational program: “[m]usic without music, sacred cathedral, architecture minus the without painting scriptural themes be would incomplete, eccentric and even from a secular point of view.” Illinois ex rel. Education, McCollum v. Board (1948) U. S. (concurring opinion). the celebration of Invoking theme. troubling and more “In God We holiday, legend as a Thanksgiving public save the coins, on our and the “God proclamation Trust” at the opening and this Honorable Court” United States that sessions, asserts, explanation, the Court without judicial a creche its annual Christmas dis- Pawtucket’s inclusion of threat to Establishment Clause val- no more of a play poses ues than other official “acknowledgments” religion. these ante, Ante, 692-693 674-678, 685-686; see also at (O’Con- J., concurring). nor, in
Intuition tells us that some official
“acknowledgment”
if
is not to
government
evitable
a religious society
adopt
stilted indifference to the
life of the
religious
people.
Illinois ex rel.
v. Board
Education,
McCollum
U. S.
(1948)
true,
It is
(Jackson, J., concurring).
equally
if
however,
that
is to remain
neu
government
scrupulously
conscience,
tral
matters of
as our Constitution
religious
then it must avoid those
broad
requires,
overly
acknowledg
ments of
that
religious practices
may imply governmental
favoritism toward one set of
beliefs. This does not
religious
mean, of course,
account,
officials
not take
public
when
necessary,
existence and
separate
significance
institutions
in the
practices
society they
govern.
Should
some
choose
incorporate
arguably
ceremonies,
element
into its
*39
must be
not tend to
acknowledgment
pro
it must
impartial;
mote one faith or
it should not
handicap another;
sponsor
of de
generally
Thus,
over
a series
nonreligion.
cisions
re
concerned with such
we have
acknowledgments,
peatedly held that any
acknowledgment
active form of public
is forbid
religion indicating
or endorsement
sponsorship
g.,
den. E.
Stone v.
Graham,
(1980)
(posting
U. S.
Epperson
Arkansas,
Ten
in schoolroom);
Commandments
v.
(1968)
Despite this body law, case the Court has never compre- hensively addressed the extent to which government ac- knowledge religion by, for example, incorporating religious references into public ceremonies and and I proclamations, do not presume to offer a comprehensive approach. Neverthe- less, it appears from our prior decisions that at least three principles tracing the narrow channels which government — acknowledgments must follow to satisfy the Establishment may be identified. First, although Clause — the government may not be compelled to do so by the Free Exercise Clause, it may, consistently with the Establishment Clause, act to ac- commodate to some extent the opportunities of individuals to practice their Schempp, supra, at 296-299 religion. See (Brennan, J., concurring). That is the essential I meaning, submit, of this Court’s decision in Zorach v. Clauson, U. S. 306 (1952), finding that government does not violate the Establishment Clause when it simply chooses to “close its doors suspend its operations as to those who want to re- pair to their religious sanctuary for worship or instruction.” Id., at 314. And for me that would principle justify govern- ment’s decision to declare December 25th public holiday. supra, at 710.
Second, our cases recognize that while a particular govern- mental practice may have derived from religious motivations and retain certain religious connotations, it is nonetheless permissible for the government to pursue the practice when it is continued today solely for secular reasons. As this Court noted with reference to Sunday Closing Laws McGowan Maryland, 366 U. S. 420 (1961), the mere fact that a governmental practice coincides to some extent with certain religious beliefs does not render it unconstitutional. Thanksgiving Day, in my view, fits within easily this princi- *40 716 prac- religious the current despite antecedents,23
pie, its for unquestionably secular Thanksgiving celebrating is tice on that may gather our families patriotic. We all and good for- personal national give and day both thanks to holi- given character secular free, we tune, but are gratitude a divine beneficence either to day, to address country’s good luck or as sources to such mundane or wealth. natural abundant com- be
Finally, cannot noted we have recognizing in its actions pletely prohibited from people as an practices religious of the American and beliefs Engel history See aspect and culture. of our national supra, Schempp, at supra, n. 21; 300-304 at Vitale, concurring). about remain uncertain While I J., (Brennan, practices suggest as that such questions, I would these or motto, as national designation Trust” our “In We God Allegiance Pledge in the contained God the references phrase, apt flag in Dean Rostow’s understood, be can best protected Establish- from deism,”24 a form “ceremonial through they chiefly scrutiny lost have because Clause ment religious any significant Marsh repetition content. See rote dissenting). J., S., Chambers, (Brennan, 818 463 U. 23 posed by the antecedents problems The constitutional recognized by Jeffer Thomas were well early Thanksgiving celebrations days grounds national to declare Refusing on Clause Establishment son. fasting, explained: thanksgiving Jefferson by the Con- as interdicted government of the United States consider the “I doctrines, institutions, their intermeddling with stitution from recom- I only proposed that should disciplines, [I]t . . . or exercises. I not believe fasting prayer [But] . . . do mend, day of prescribe its direct magistrate to religion to invite the civil it is for the interest of reli- are Fasting prayer exercises, .... discipline, or its doctrines its Jefferson’s discipline.” 11 act of exercises; enjoining an gious them deleted). (1904) (emphasis Writings 428-430 Pfeffer, Church, Freedom generally L. State (1964) Dean (quoting Review, L. Sutherland, Ind. J. Book University). Brown Meiklejohn delivered at Lecture Rostow’s
717 Moreover, uniquely these references are suited to serve such wholly purposes solemnizing public secular occasions, or inspiring challenge commitment to some meet national in a simply fully manner that could be not served in our culture government if purely nonreligious phrases. were limited to Schempp, supra, Cf. concurring). at 265 (Brennan, J., practices by long which acknowledged has probably necessary are therefore to serve certain necessity, secular coupled functions, and that long with their history, gives practices essentially those an meaning. secular
The créche categories. fits none of these Inclusion of necessary the créche is not to accommodate individual reli- gious expression. plainly This is not case in a which indi- vidual residents right place Pawtucket have claimed the part wholly private a display créche as of a on land. Cf. (1981); Widmar v. 454 McCreary Vincent, U. S. 263 (SDNY 1983). Supp. Stone, F. Nor is the inclusion necessary of the créche wholly goals; to serve secular it is city’s clear purposes that celebrating secular holiday promoting Christmas retail can commerce be fully served without Mary- the créche. Cf. McGowan v. supra, land, and at 699-700. And the créche, because its unique Christianity, clearly association with is more sectar- ian than those accept references to that God we ceremonial phrases inor neutrality. other contexts that assure The re- ligious works on Gallery, at the National Presidential during Inaugural references to God an Address, or the na- present tional motto establishing religion. no risk of To be understanding sure, our expressions begin of these contemplation of some element, but it does end message there. Their dominantly is In contrast, secular. message begins the créche for ends reverence particular image of the divine. By insisting distinctively message that such a sectarian merely unobjectionable part an “religious heritage,” of our see ante, long step 685-686, the Court takes a backwards arrogantly declare days Brewer could Justice when Holy Church nation.” “this is a Christian the Court (1892). Those Trinity 143 U. S. States, v. United put thought, behind us forever days, were I had rejected Engel in which we Vitale, decision Court’s of New York argument the State advanced similar acceptable part simply of our Prayer Regent’s an was its heritage.” “spiritual S., at 425. U.
HHHHHH concerning experience historical The American provides carefully examined, no if Christmas, celebration of support opening sections of Court’s decision. for the rely seeking evidence, opinion, on historical to while Court’s strong recognize of the the obvious: because more do no than history, through an inflexible religious our that run currents Clause the Establishment enforcement or absolutistic impossible. imprudent at 673- ante, would be both and un- at once uncontroversial 678. This observation ways enumerating Simply in which illuminating. various recognized the vital role has the Federal Government help question nothing society plays decide the to does our presented this case. suggests mis- approach a fundamental
Indeed, the Court’s history proper apprehension in constitutional uses of fact that interpretation. Certainly, reflect the our decisions provide practice a useful can of historical often an awareness interpreting language guide of the Establish- the abstract g., S., at Comm’n, 397 U. e. v. Tax See, Walz ment Clause. Maryland, 431-445; S.,U. 676-680; McGowan acceptance of a Engel, But at 425-429. historical S., 370 U. justify chal- practice particular never sufficient alone is rightly governmental lenged the Court has action, since, right protected in vi- acquires a vested or observed, “no one span long when use, even olation of Constitution pre- and indeed entire national existence of time covers our supra, also Committee at 678. See Walz, it.” dates Religious Public Liberty Education Nyquist, & S.,U. at 792. history Attention to the details of should not blind us purposes to the cardinal ofthe Establishment Clause, nor limit inquiry our central in these challenged cases—whether the practices consequences “threaten those which the Framers deeply Abington feared.” School Schempp, Dist. v. S.,U. at 236 concurring). J., recognition (Brennan, this fact, the today, Court has, consistently until limited its inquiry particular historical practice to the under review. In McGowan, for carefully instance, the Court canvassed history Sunday entire Closing Laws from the colonial period up to modern times. On the analysis, basis of this we concluded that while such laws were rooted in moti- purpose vations, the current wholly was to serve the secular goal providing day a uniform of rest for all citizens. 366 S.,U. inquiry at 445. Our similarly Walz was confined to special history practice under review. There the pattern Court found a of “undeviating acceptance” over the entire course of the history Nation’s according property- exemptions tax organizations, pattern which *43 supported finding our practice that the did not violate the Religion Finally, Clauses. where inquiry direct into the Framers’ intent reveals that the First Amendment was not prohibit understood to particular a practice, we have found such an understanding compelling. Thus, in Marsh v. Cham- bers, marshaling after the historical evidence which indicated Congress the First had appointment authorized the of paid chaplains for proceedings its own only days three before it agreement reached on the wording final of the Bill of Rights, the Court concluded on the “unique of basis this his- tory” that the modern-day practice opening legislative of ses- prayer sions with was constitutional. 463 U. S., at 787-791.
Although invoking support these decisions in of its result, the wholly Court fails to history discuss public the of the cele bration of Christmas or publicly the use displayed of nativity scenes. The Court, simply instead, any asserts, without his analysis torical support or whatsoever, that the now familiar history of springs from an unbroken of Christmas celebration acknowledgment Branch, people, Executive “by the the Ante, .” . .. 2 centuries for Congress, courts the any explanation complete offer to failure The Court’s 686. because however, perhaps understandable, is its assertion opposite precisely direc points record the historical noting. history First, are worth this features tion. Two Bill of and the adoption the Constitution of the at the time celebrating pattern Christ Rights, no settled was there public holiday event. as a purely as a mas, either no uni is, as it offers evidence, such historical Second, the holiday acceptance in widespread of the pattern of form public development as a of Christmas suggests that the deed phenomenon.25 comparatively holiday recent is a public respect dis- to with of the Framers The intent pri- impossible virtually to nativity discern play is scenes widespread did of Christmas celebration marily because cen- present into the 19th well emerge until form its not tury. hostility cele- to the Carrying Puritan a well-defined World, the New to the with them birth of Christ’s bration vigilant Colony pursued Bay of the Massachusetts founders holiday. public any opposition policy celebration to analysis is vague historical upon pursuing this 25 TheCourt’s insistence supporting amici their petitioners and baffling since even especially Marsh, upon to relied equivalent historical evidence that no concede At displays. McGowan, sponsored Christmas supports publicly or Walz “any there asked whether petitioners was argument, counsel for oral in this practice long has it to to us know how been thing we can refer let re displayed?” nativity scenes Counsel to have country bodies public [as recognition of Christmas I sponded: “Specifically, cannot.... specifi century . . . but part of the last holiday] began in middle scene, been unable nativity have we respect cally use *44 Arg. Tr. of Oral 8. locate data.” support of amicus General, appearing addition, Solicitor [of intent . . . evidence “Do we have petitioners, asked: was He re- nativity scene?” display of a respect to the with Framers] here Id., 22-23. degree specificity.” sponded: with “Not
721 To the Puritans, celebration Christmas represented “Popish” practice lacking any foundation in Scripture. This took form in 1659 opposition legal when the Massachusetts Bay made the observance of Colony Christmas Day, “by ab- labor, stinence from other feasting, any way,” an offense punishable fine. Although the Colony eventually re- this pealed ban the Puritan objection remained firm.26 18th During the sectarian century, division over the cele- bration of the holiday continued. As increasing numbers of members of the Anglican and Dutch and German Re- formed arrived, Churches the practice of celebrating Christ- mas as a purely religious holiday grew. But denominational differences continued to dictate differences in attitude toward the holiday. American Anglicans, who carried with them the Church of England’s acceptance Roman holiday, Catholics, and various German groups all made the cele- bration of Christmas a vital part of their religious life. By contrast, many nonconforming Protestant groups, including the Presbyterians, Congregationalists, and Meth- Baptists, odists, continued to regard the holiday suspicion antagonism well into the 19th This century.27 pattern sec- Cobb, See S. Religious (rev. The Rise of Liberty in America 209 ed. 1970). For example an of this antipathy notorious Puritan holiday, to the consider the remarks of Judge Sewell, Puritan, expressed who his concerns about the influence of “Some, celebration of Christmas: somehow day, observe the vexed, but believe, are I Body that the People it; and, Profane God, blessed be no Authority yet compel them to keep Quoted it.” in Barnett 3. generally 4-6, 21-22; Barnett Sweet, Christmas American His tory, 22 (Nov. Chi. Theol. Register 12, Sem. 1932); Meyers, R. Cele brations: The Complete Book of Holidays American 314-315 Some indication of this opposition denominational to the celebration of Christmas can gleaned be from following account of Christmas services in the New Daily York Times for December 1855: “The churches the Presbyterians, Baptists and Methodists were not open on Dec. except where some Mission Schools had a celebration. They do accept day Holy One, as a Episcopalian, but the Catholic *45 that for the suggests concerning holiday division tarian sen- Clause, acutely who were the Establishment Framers of controversies, no view of how single such sectarian sitive to the celebration of Christmas should approach would be possible. sects that were devotedly op- of the same
Many on of Christmas purely to the celebration posed most vocal and dedicated foes also some of the were grounds, in to the Revolu- just the period prior of established religions later the Puritans, Presbyterians, The War.28 tionary Methodists, associated the celebra- generally Baptists, in and, view, the elaborate their tion of Christmas with the Church of holiday by Eng- celebration of the sacreligious them, theology for the more sinister land, with, and also sects, In of these eyes dissenting religious “Popery.”29 most associated with estab- therefore, closely the groups they open. were all Inside were decked with ever- and German Churches greens.” Quoted in Barnett 8. addition, Henry in consider the account written 1874 of Ward
Beecher, describing England Congregationalist, his New childhood: foreign day, boy I I
“To me Christmas is a and shall die so. When was a time, I I wondered what Christmas was. knew there was such a because Episcopal dressing in I we had an church our town and saw them it with institution, evergreens .... A little later I understood it was a Romish kept up by Brought up in state of New Romish Church. the strictest England, brought up style worship passed I all the most literal ... my youth any knowledge Christmas, without and so I have no associa- day.” Quoted 15, Meyers, supra tions with the n. at 315-316. religious groups struggle The role of these for disestablishment already place history and their in the have the Establishment Clause length cases, repeat I been chronicled at some our and therefore will Education, history here. Everson Board 330 U. 9-15 See v. S. (1947); Engel Vitale, 421, 428, (1962); 370 U. and n. 10 Committee S. S., Religious Liberty Nyquist, Public Education & 413 U. denomi comprehensive n. 28. For more discussions of the efforts of these disestablishment, Cobb, Religious bring nations to The Rise of about see S. (rev. Origins of Liberty 1970); Bailyn, Ideological in America ed. B. (1967); McLoughlin, England the American Revolution 257-263 W. New (1971); Pfeffer, Church, and Freedom Dissent: 1630-1833 L. State 29 Barnett 2-6. England lished Churches of and of Rome—were —the closely profane practice also most publicly linked to the celebrating Christmas. For those who authored the Bill of *46 Rights, suppose public it seems reasonable to that the cele- regarded bration of Christmas would have been as at least deeply a sensitive if matter, not controversial. As we have repeatedly Religion observed, the Clauses were intended to benign regime competitive ensure a among of disorder all against denominations, so that each sect was free to vie the allegiance others for the of its followers without state inter- ference. See Everson v. Board Education, 330 1 U. S. of (1947). contrary The historical record, to the Court’s un- assumption, suggests very informed that at the least con- flicting views toward the celebration of Christmas were an important competition element of that at the time of the adoption of the Constitution. exemptions upheld unlike
Furthermore, the tax public display nativity in part Walz, the gov- scenes as sup- ernmental celebrations of Christmas does not come to us ported by history widespread an acceptance. unbroken It granted legal was not until recognition 1836that a State first public holiday. to Christmas as a This was followed period jurisdictions between 1845 and 28 in- which Day legal holiday.30 Congress cluded Christmas as a did not follow the States’ lead until 1870when it established Decem- along July, Day, 25th, ber with the Fourth of New Year’s Thanksgiving, legal holiday as a in the District of Co- pattern legal recognition only lumbia.31 This tells us that id., compilation For a of these developments, see at 19-20. 167,16 Ch. 168. suggestion Stat. There is congressional no the brief concerning discussion the decision Day public to declare Christmas holi day Columbia, in the Congress District of anything that meant to do put more than to equal footing many District on with the States that days public holidays by Globe, had declared those Cong. that time. See Cong., Sess., 2d 41st Significantly, Congress provided holiday pay- it was not until 1885 that employees ment for federal on 25. December See J. Res. Stat. 516. gradual that holiday was acceptance public presented in either record to the contrast practice stark —in widely aof character on the take Marsh —did orWalz century. 19th holiday middle until the recognized financing and respect to evidence The historical nativity is even scenes displays of governmental support for suggests Ger- known gauge. What difficult more early Pennsylvania immigrants settled who man European upon tradi- drawing century, presumably 18th nativity scenes introduce first to probably the tions, were appears It also of Christmas.32 celebration American Roman Catholic expanded more practice likely this century. these From during 19th immigrants settled developed and scene creche familiar beginnings, the modest century.33 It is 19th recognition the late gained wider *47 practice ever the however, whether impossible tell, simply to endorse- official much less acceptance, widespread gained century. 20th the until ment, Framers that whatsoever is no evidence sum, there of approved celebration expressly a federal have
would nativity displays of a including public holiday Christmas créehe of the symbol 15. Meyers, supra n. 11-12; Barnett See to origins its owes apparently celebration Christmas artifact of an as popularized accounts, first according to most who, of Assisi Francis St. manger erecting a by Christ of birth of the re-enactment ritual of roles now-traditional played the townspeople who by attended 1224. Greccio, Italy, village of etc., in the Magi, shepherds, Christmas All About Krythe, (1931); M. Auld, Traditions Christmas W. increasing secularization that has noted One commentator “mem century led 19th during the occurred which celebration Christmas oppose to inclined less be] [to evangelical churches and Puritan bers po religious symbolized longer no when it celebration secular dur increased tolerance This England. the Church dominance litical popularity encouraged [the] undoubtedly century and ing the nineteenth 11-12,22-23. id., at 6; also see Barnett Christmas].” the celebration [of accordingly, scene; repeated the Court’s invocation of the de- cision Marsh, see ante, at 673-674, 682, 685-686, is not only baffling, utterly it is any irrelevant. isNor there suggestion publicly that supported financed displays supported by Christmas creches are widespread, a record of undeviating acceptance throughout that extends history. our prior Therefore, our upon decisions which relied concrete, specific support historical particular evidence to practice simply bearing question have no presented on the in this Contrary today’s case. to prior careless decision, those recognized cases have all provided by “illumination” history always particular must be practice focused on the at given issue in a guiding case. principle Without that and the discipline imposes, intellectual it the Court at is sea, free to select random elements of history America’s solely varied suit the views of five Members of this Court.
IV Under our constitutional scheme, the safeguarding role of “religious heritage” our promoting beliefs prerogative reserved the exclusive our Nation’s churches, spiritual institutions, and leaders. Be- cause the Framers of the Establishment Clause understood “religion personal, is too holy permit too sacred, too perversion’ its ‘unhallowed Engel civil [authorities],” Vitale, 370 U. S., govern- Clause demands that play ment no role in today this effort. The Court brushes aside insisting these concerns that Pawtucket has done *48 nothing more than symbol include a “traditional” of Christ- in mas its holiday, celebration of thereby this muting national the content of the créche. Ante, 685. at But the city’s recognized action should be for what it is: a coercive, though perhaps step establishing small, toward the sectarian preferences majority expense the at minority, the of the accomplished by placing public support facilities and funds in religious symbolism theological tidings and that the writing in Mc- Frankfurter, conveys. As Justice creche Clause Maryland, the Establishment observed, Gowan legislative legitimate con- sphere “withdraws] the from comprehensive, specific, area of competence but and cern verity some in the or disbelief man’s belief human conduct: expression of that be- in action man’s and idea transcendental opinion). (separate 465-466 S., at 366 U. or disbelief.” lief feeling thought realm of and this sets That Constitution antagonisms pressures apart from Regrettably, the Court supreme achievements. its one of today that achievement. tarnishes
I dissent. joins, Stevens Justice with whom Blackmun, Justice dissenting. logic points of the Court’s out, the
As Justice Brennan 602, 612-613 403 U. S. Kurtzman, in Lemon decision ap- say (1971) (which has been would The Chief Justice which plied by but “often,” ante, this Court Justice prior cases acknowledges “Our words, with the O’Connor ante, at three-part Lemon,” test articulated have used guide- 688), If and its compels that case an affirmance here. in a anything, presence créche of Pawtucket’s mean lines sponsored to be violation municipally be held must of the First Amendment. controversy only of this the Court’s resolution does
Not ironically, ma- precedents, light also, but of our make message it injustice jority créche to the does an Mayor including persons, certain manifests. While “keep Christ- ‘Christ’ a crusade undertook Pawtucket, presence today App. has declared 161, the mas,” Court display, urges majority virtually irrelevant. religious nature “recall[s] the créche,” or without a Holiday,” “with community spirit friendly “engenders a Be- at 685. Ante, goodwill keeping the season.” city made expert for the witness an Court, the District fore *49 though perhaps point, stating a similar, more candid, display people participate Pawtucket’s invites “to in the spirit, peace, brotherhood, Christmas and let loose with their (RI 1981). money.” Supp. 1150, See 525 F. The relegated harbinger créche has been to the role of a neutral holiday purposes, season, useful for commercial but de- any meaning incapable enhancing void of inherent integral part. tenor of a of which it is an city victory Pyrrhic The has its it is a one indeed. —but import encourage of the Court’s decision is to use of municipally sponsored display, setting créche acknowledging sym- where Christians feel constrained in its meaning pres- bolic and non-Christians feel alienated its Surely, symbol. ence. this is a misuse of a sacred Because join denying I cannot Court either the force of our precedents message or the sacred that is at the core of the join opinion. créche, dissent and I Justice Brennan’s