492
This
litigation concerns the constitutionality of two recurring holiday displays
located on public property in downtown
justice
blackmun announced the judgment of the Court.
… In the course of adjudicating specific cases, this
Court has come to understand the Establishment Clause to mean that government
may not promote or affiliate itself with any religious doctrine or organization,
may not discriminate among persons on the basis of their religious beliefs and
practices, may not delegate a governmental power to a religious institution,
and may not involve itself too deeply in such an institution's affairs.
Although "the myriad, subtle ways in which Establishment Clause values can
be eroded" … are not susceptible to a single verbal formulation, this
Court has attempted to encapsulate the essential precepts of the Establishment
Clause....
In
Lemon v. Kurtzman (1971) the Court sought to
refine these principles by focusing on three "tests" for determining
whether a government practice violates the Establishment Clause....Our
subsequent decisions further have refined the definition of governmental action
that unconstitutionally advances religion. In recent years, we have paid
particularly close attention to whether the challenged governmental practice
either has the purpose or effect of "endorsing" religion, a concern
that has long had a place in our Establishment Clause jurisprudence….
Of
course, the word "endorsement" is not self-defining. Rather, it
derives its meaning from other words that this Court has found useful over the
years in interpreting the Establishment Clause. Thus, it has been noted that
the prohibition against governmental endorsement of religion "preclude[s]
government from conveying or attempting to convey a message that religion or a
particular religious belief is favored or preferred."…
Moreover, the term "endorsement" is closely linked to the term
"promotion," … and this Court long since has held that government
"may not ... promote one religion or religious theory against another or
even against the militant opposite."… Whether the key word is
"endorsement," "favoritism," or "promotion," the
essential principle remains the same. The Establishment Clause, at the very
least, prohibits government from appearing to take a position on questions of
religious belief or from "making adherence to a religion relevant in any
way to a person's standing in the political community."…
We
have had occasion in the past to apply Establishment Clause principles to the
government's display of objects with religious significance.... [In] Lynch
v. Donnelly [1984] ... we considered whether the city of Pawtucket, R.I.,
had violated the Establishment Clause by including a crèche in its annual
Christmas display, located in a private park within the downtown shopping
district....The rationale of the majority opinion in Lynch is none too
clear: the opinion contains two strands, neither of which provides guidance for
decision in subsequent cases. First, the opinion states that the inclusion of
the crèche in the display was "no more an advancement or endorsement of
religion" than other "endorsements" this Court has approved in
the past, but the opinion offers no discernible measure for distinguishing
between permissible and impermissible endorsements. Second, the opinion
observes that any benefit the government's display of the crèche gave to
religion was no more than "indirect, remote, and incidental," …
--without saying how or why.
Although
Justice O’Connor joined the majority opinion in Lynch, she wrote a
concurrence that differs in significant respects from the majority opinion. The
main difference is that the concurrence provides a sound analytical framework
for evaluating governmental use of religious symbols. First and foremost, the
concurrence squarely rejects any notion that this Court will tolerate some
government endorsement of religion.... Second, the concurrence articulates a
method for determining whether the government's use of an object with religious
meaning has the effect of endorsing religion. The effect of the display depends
upon the message that the government's practice communicates: the question is
"what viewers [or "reasonable observers"] may fairly understand
to be the purpose of the display."… That inquiry, of necessity, turns upon
the context in which the contested object appears: "[A] typical museum
setting, though not neutralizing the religious content of a religious painting,
negates any message of endorsement of that content."... ... These general
principles are sound, and have been adopted by the Court in subsequent
cases.... Accordingly, our present task is to determine whether the display of
the crèche and the menorah, in their respective "particular physical
settings," has the effect of endorsing or disapproving religious beliefs.
We turn first to the county's crèche display....
Under
the Court's holding in Lynch, the effect of a crèche display turns on
its setting. Here, unlike in Lynch, nothing in the context of the
display detracts from the crèche’s religious message. The Lynch display
comprised a series of figures and objects, each group of which had its own
focal point. Santa's house and his reindeer were objects of attention separate
from the crèche, and had their specific visual story to tell.... Here, in
contrast, the crèche stands alone: it is the single element of the display on
the Grand Staircase....… No viewer could reasonably think that it occupies this
location without the support and approval of the government. Thus, by
permitting the "display of the crèche in this particular physical
setting," … the county sends an unmistakable message that it supports and
promotes the Christian praise to God that is the crèche’s religious message....
In
sum, Lynch teaches that government may celebrate Christmas in some
manner and form, but not in a way that endorses Christian doctrine. Here,
The display of the Chanukah menorah in front of the
Accordingly, the relevant question for Establishment
Clause purposes is whether the combined display of the tree, the sign, and the
menorah has the effect of endorsing both Christian and Jewish faiths, or rather
simply recognizes that both Christmas and Chanukah are part of the same
winter-holiday season, which has attained a secular status in our society. Of
the two interpretations of this particular display, the latter seems far more
plausible and is also in line with Lynch. The Christmas tree, unlike the
menorah, is not itself a religious symbol. Although Christmas trees once
carried religious connotations, today they typify the secular celebration of
Christmas…. Numerous Americans place Christmas trees in their homes without
subscribing to Christian religious beliefs, and when the city's tree stands
alone in front of the City-County Building, it is not considered an endorsement
of Christian faith. Indeed, a 40-foot Christmas tree was one of the objects
that validated the crèche in Lynch. The widely accepted view of the
Christmas tree as the preeminent secular symbol of the Christmas holiday season
serves to emphasize the secular component of the message communicated by other
elements of an accompanying holiday display, including the Chanukah menorah.
The
tree, moreover, is clearly the predominant element in the city's display. The
45-foot tree occupies the central position beneath the middle archway in front
of the
Although the city has used a symbol with religious
meaning as its representation of Chanukah, this is not a case in which the city
has reasonable alternatives that are less religious in nature. It is difficult
to imagine a predominantly secular symbol of Chanukah that the city could place
next to its Christmas tree. An 18-foot dreidel would
look out of place, and might be interpreted by some as mocking the celebration
of Chanukah. The absence of a more secular alternative symbol is itself part of
the context in which the city's actions must be judged in determining the
likely effect of its use of the menorah. Where the government's secular message
can be conveyed by two symbols, only one of which carries religious meaning, an
observer reasonably might infer from the fact that the government has chosen to
use the religious symbol that the government means to promote religious faith….
But where, as here, no such choice has been made, this inference of endorsement
is not present.
The Mayor's sign further diminishes the possibility
that the tree and the menorah will be interpreted as a dual endorsement of
Christianity and Judaism. The sign states that during the holiday season the city
salutes liberty. Moreover, the sign draws upon the theme of light, common to
both Chanukah and Christmas as winter festivals, and links that theme with this
Nation's legacy of freedom, which allows an American to celebrate the holiday
season in whatever way he wishes, religiously or otherwise.... Here, the
Mayor's sign serves to confirm what the context already reveals: that the
display of the menorah is not an endorsement of religious faith but simply a recognition of cultural diversity.
Given all these considerations, it is not
"sufficiently likely" that residents of
Lynch
v. Donnelly confirms, and in no way repudiates, the longstanding
constitutional principle that government may not engage in a practice that has
the effect of promoting or endorsing religious beliefs. The display of the
crèche in the
justice
Kennedy, with whom The Chief Justice, Justice White, and Justice Scalia join,
concurring in part and dissenting in part.
The majority holds that the
In
keeping with the usual fashion of recent years, the majority applies the Lemon
test to judge the constitutionality of the holiday displays here in question. I
am content for present purposes to remain within the Lemon framework,
but do not wish to be seen as advocating, let alone adopting, that test as our
primary guide in this difficult area. Persuasive criticism of Lemon has
emerged. See Edwards v. Aguillard (1987) (scalia, j., dissenting).... Substantial
revision of our Establishment Clause doctrine may be in order; but it is
unnecessary to undertake that task today, for even the Lemon test, when
applied with proper sensitivity to our traditions and our case law, supports
the conclusion that both the crèche and the menorah are permissible displays in
the context of the holiday season....
The ability of the organized community to recognize
and accommodate religion in a society with a pervasive public sector requires
diligent observance of the border between accommodation and establishment. Our
cases disclose two limiting principles: government may not coerce anyone to
support or participate in any religion or its exercise; and it may not, in the
guise of avoiding hostility or callous indifference, give direct benefits to
religion in such a degree that it in fact "establishes a [state] religion
or religious faith, or tends to do so."... These two principles, while
distinct, are not unrelated, for it would be difficult indeed to establish a
religion without some measure of more or less subtle coercion, be it in the
form of taxation to supply the substantial benefits that would sustain a
state-established faith, direct compulsion to observance, or governmental
exhortation to religiosity that amounts in fact to proselytizing....
In
determining whether there exists an establishment, or
a tendency toward one, we refer to the other types of church-state contacts
that have existed unchallenged throughout our history, or that have been found
permissible in our case law. In Lynch, for example, we upheld the city
of
These principles are not difficult to apply to the
facts of the cases before us. In permitting the displays on government property
of the menorah and the crèche, the city and county sought to do no more than
"celebrate the season" … and to acknowledge, along with many of their
citizens, the historical background and the religious, as well as secular,
nature of the Chanukah and Christmas holidays. This interest falls well within
the tradition of government accommodation and acknowledgment of religion that
has marked our history from the beginning. It cannot be disputed that
government, if it chooses, may participate in sharing with its citizens the joy
of the holiday season, by declaring public holidays, installing or permitting
festive displays, sponsoring celebrations and parades, and providing holiday
vacations for its employees. All levels of our government do precisely that....
If government is to participate in its citizens'
celebration of a holiday that contains both a secular and a religious
component, enforced recognition of only the secular aspect would signify the
callous indifference toward religious faith that our cases and traditions do not
require; for by commemorating the holiday only as it is celebrated by nonadherents, the government would be refusing to
acknowledge the plain fact, and the historical reality, that many of its
citizens celebrate its religious aspects as well. Judicial invalidation of
government's attempts to recognize the religious underpinnings of the holiday
would signal not neutrality but a pervasive intent to insulate government from
all things religious. The Religion Clauses do not require government to
acknowledge these holidays or their religious component; but our strong
tradition of government accommodation and acknowledgment permits government to
do so....
There is no suggestion here that the government's
power to coerce has been used to further the interests of Christianity or
Judaism in any way. No one was compelled to observe or participate in any
religious ceremony or activity. Neither the city nor the county contributed
significant amounts of tax money to serve the cause of one religious faith. The
crèche and the menorah are purely passive symbols of religious holidays.
Passersby who disagree with the message conveyed by these displays are free to
ignore them, or even to turn their backs, just as they are free to do when they
disagree with any other form of government speech....
If
Lynch is still good law--and until today it was--the judgment below
cannot stand. I accept and indeed approve both the holding and the reasoning of
Chief Justice Burger's opinion in Lynch, and so I must dissent from the
judgment that the crèche display is unconstitutional. On the same reasoning, I
agree that the menorah display is constitutional....
Even
if Lynch did not control, I would not commit this Court to the test
applied by the majority today. The notion that cases arising under the
Establishment Clause should be decided by an inquiry into whether a
"`reasonable observer'" may "`fairly understand'"
government action to "`sen[d] a message to nonadherents that they are outsiders, not full members of
the political community,'" is a recent, and in my view most unwelcome,
addition to our tangled Establishment Clause jurisprudence.... I submit that
the endorsement test is flawed in its fundamentals and unworkable in practice.
The uncritical adoption of this standard is every bit as troubling as the
bizarre result it produces in the cases before us....
If the endorsement test, applied without artificial
exceptions for historical practice, reached results consistent with history, my
objections to it would have less force. But, as I understand that test, the
touchstone of an Establishment Clause violation is whether nonadherents
would be made to feel like "outsiders" by government recognition or
accommodation of religion. Few of our traditional practices recognizing the part
religion plays in our society can withstand scrutiny under a faithful
application of this formula. Some examples suffice to make plain my concerns.
Since the Founding of our Republic, American Presidents have issued
Thanksgiving Proclamations establishing a national day of celebration and
prayer. The first such proclamation was issued by President Washington at the
request of the First Congress, and "recommend[ed] and assign[ed]" a
day "to be devoted by the people of these States to the service of that great
and glorious Being."... It requires little imagination to conclude that
these proclamations would cause nonadherents to feel
excluded, yet they have been a part of our national heritage from the
beginning....
The United States Code itself contains religious
references that would be suspect under the endorsement test. Congress has
directed the President to "set aside and proclaim a suitable day each year
... as a National Day of Prayer, on which the people of the
... Either the endorsement test must invalidate scores of traditional practices recognizing the place religion holds in our culture, or it must be twisted and stretched to avoid inconsistency with practices we know to have been permitted in the past, while condemning similar practices with no greater endorsement effect simply by reason of their lack of historical antecedent. Neither result is acceptable.