Each year during the Christmas season the city of
A group of city residents and American Civil Liberties Union members sued to have the crèche removed from the display. They claimed that the nativity scene was a violation of the Establishment Clause, which is binding on the states through the Fourteenth Amendment. A federal district court agreed, finding that the display created an appearance that government was sponsoring or endorsing the Christian religion. The appeals affirmed, and the city requested Supreme Court review.
chief justice burger delivered the opinion of the Court.
… In every Establishment Clause case, we must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible.
The Court has sometimes described the Religion Clauses as erecting a "wall" between church and state, see, e.g., Everson v. Board of Education (1947). The concept of a "wall" of separation is a useful figure of speech probably deriving from views of Thomas Jefferson. The metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state.
No significant segment of our society and no institution
within it can exist in a vacuum or in total or absolute isolation from all the
other parts, much less from government. "It has never been thought either
possible or desirable to enforce a regime of total separation...." Committee for Public Education & Religious Liberty v. Nyquist (1973). Nor does the Constitution
require complete separation of church and state; it affirmatively mandates
accommodation, not merely tolerance, of all religions, and forbids hostility
toward any. See, e.g., Zorach v. Clauson
The Court's interpretation of the Establishment Clause has comported with what history reveals was the contemporaneous understanding of its guarantees. A significant example of the contemporaneous understanding of that Clause is found in the events of the first week of the First Session of the First Congress in 1789. In the very week that Congress approved the Establishment Clause as part of the Bill of Rights for submission to the states, it enacted legislation providing for paid Chaplains for the House and Senate….It is clear that neither the 17 draftsmen of the Constitution who were Members of the First Congress, nor the Congress of 1789, saw any establishment problem in the employment of congressional Chaplains to offer daily prayers in the Congress, a practice that has continued for nearly two centuries. It would be difficult to identify a more striking example of the accommodation of religious belief intended by the Framers.
There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789. Seldom in our opinions was this more affirmatively expressed than in Justice Douglas' opinion for the Court validating a program allowing release of public school students from classes to attend off-campus religious exercises. Rejecting a claim that the program violated the Establishment Clause, the Court asserted pointedly: "We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson….
Our history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders…. Executive Orders and other official announcements of Presidents and of the Congress have proclaimed both Christmas and Thanksgiving National Holidays in religious terms. And, by Acts of Congress, it has long been the practice that federal employees are released from duties on these National Holidays, while being paid from the same public revenues that provide the compensation of the Chaplains of the Senate and the House and the military services…. Thus, it is clear that Government has long recognized--indeed it has subsidized--holidays with religious significance. Other examples of reference to our religious heritage are found in the statutorily prescribed national motto "In God We Trust," … which Congress and the President mandated for our currency, … and in the language "One nation under God," as part of the Pledge of Allegiance to the American flag. That pledge is recited by many thousands of public school children--and adults--every year. Art galleries supported by public revenues display religious paintings of the 15th and 16th centuries, predominantly inspired by one religious faith…. The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent--not seasonal--symbol of religion: Moses with the Ten Commandments. Congress has long provided chapels in the Capitol for religious worship and meditation. There are countless other illustrations of the Government's acknowledgment of our religious heritage and governmental sponsorship of graphic manifestations of that heritage…. Equally pervasive is the evidence of accommodation of all faiths and all forms of religious expression, and hostility toward none. Through this accommodation, as Justice Douglas observed, governmental action has "follow[ed] the best of our traditions" and "respect[ed] the religious nature of our people."
This history may help explain why the Court consistently has declined to take a rigid, absolutist view of the Establishment Clause. We have refused "to construe the Religion Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history." Walz v. Tax Comm'n . In our modern, complex society, whose traditions and constitutional underpinnings rest on and encourage diversity and pluralism in all areas, an absolutist approach in applying the Establishment Clause is simplistic and has been uniformly rejected by the Court …. In each case, the inquiry calls for line-drawing; no fixed, per se rule can be framed. The Establishment Clause like the Due Process Clauses is not a precise, detailed provision in a legal code capable of ready application. The purpose of the Establishment Clause "was to state an objective, not to write a statute." Walz.… The Clause erects a "blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." Lemon [v. Kurtzman (1971)].
In the line-drawing process we have often found it useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion. Lemon. But, we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area…. In this case, the focus of our inquiry must be on the crèche in the context of the Christmas season….
The Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded there was no question that the statute or activity was motivated wholly by religious considerations…. The District Court inferred from the religious nature of the crèche that the city has no secular purpose for the display. In so doing, it rejected the city's claim that its reasons for including the crèche are essentially the same as its reasons for sponsoring the display as a whole. The District Court plainly erred by focusing almost exclusively on the crèche. When viewed in the proper context of the Christmas Holiday season, it is apparent that, on this record, there is insufficient evidence to establish that the inclusion of the crèche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message…. The crèche in the display depicts the historical origins of this traditional event long recognized as a National Holiday.
The narrow question is whether there is a secular purpose
The District Court found that the primary effect of including the crèche is to confer a substantial and impermissible benefit on religion in general and on the Christian faith in particular … [but] … to conclude that the primary effect of including the crèche is to advance religion in violation of the Establishment Clause would require that we view it as more beneficial to and more an endorsement of religion, for example, than expenditure of large sums of public money for textbooks supplied throughout the country to students attending church-sponsored schools, … expenditure of public funds for transportation of students to church-sponsored schools, … federal grants for college buildings of church-sponsored institutions of higher education combining secular and religious education, … noncategorical grants to church-sponsored colleges … and universities; and the tax exemptions for church properties…. It would also require that we view it as more of an endorsement of religion than the Sunday Closing Laws …, the release time program for religious training … ; and the legislative prayers upheld in Marsh v. Chambers (1983).
We are unable to discern a greater aid to religion deriving
from inclusion of the crèche than from these
benefits and endorsements previously held not violative
of the Establishment Clause. What was said about the legislative prayers in Marsh,
and implied about the Sunday Closing Laws in McGowan [v.
The dissent asserts some observers may perceive that the city has aligned itself with the Christian faith by including a Christian symbol in its display and that this serves to advance religion…. Here, whatever benefit there is to one faith or religion or to all religions, is indirect, remote, and incidental; display of the crèche is no more an advancement or endorsement of religion than the Congressional and Executive recognition of the origins of the Holiday itself as "Christ's Mass," or the exhibition of literally hundreds of religious paintings in governmentally supported museums.
The District Court found that there had been no
administrative entanglement between religion and state resulting from the
city's ownership and use of the crèche…. Entanglement
is a question of kind and degree. In this case, however, there is no reason to
disturb the District Court's finding on the absence of administrative
entanglement. There is no evidence of contact with church authorities
concerning the content or design of the exhibit prior to or since
We are satisfied that the city has a secular purpose for including the crèche, that the city has not impermissibly advanced religion, and that including the crèche does not create excessive entanglement between religion and government….
That this Court has been alert to the constitutionally
expressed opposition to the establishment of religion is shown in numerous
holdings striking down statutes or programs as violative
of the Establishment Clause…. Taken together these cases abundantly demonstrate
the Court's concern to protect the genuine objectives of the Establishment
Clause. It is far too late in the day to impose a crabbed reading of the Clause
on the country. We hold that, notwithstanding the religious significance of the
crèche, the city of
justice o’connor, concurring.
I concur in the opinion of the Court. I write separately to suggest a clarification of our Establishment Clause doctrine. The suggested approach leads to the same result in this case as that taken by the Court, and the Court's opinion, as I read it, is consistent with my analysis.
The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines…. The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message….
Our prior cases have used the three-part test articulated in Lemon v. Kurtzman (1971), as a guide to detecting these two forms of unconstitutional government action. It has never been entirely clear, however, how the three parts of the test relate to the principles enshrined in the Establishment Clause. Focusing on institutional entanglement and on endorsement or disapproval of religion clarifies the Lemon test as an analytical device.
Applying that formulation to this case, I would find
justice brennan, with whom justice marshall, justice blackmun, and justice stevens join, dissenting.
… Last Term, I expressed the hope that the Court's decision
in Marsh v. Chambers (1983), would prove to be only a single, aberrant
departure from our settled method of analyzing Establishment Clause cases….
That the Court today returns to the settled analysis of our prior cases
gratifies that hope. At the same time, the Court's less-than-vigorous application
of the Lemon test suggests that its commitment to those standards may
only be superficial. After reviewing the Court's opinion, I am convinced that
this case appears hard not because the principles of decision are obscure, but
because the Christmas holiday seems so familiar and agreeable. Although the
Court's reluctance to disturb a community's chosen method of celebrating such
an agreeable holiday is understandable, that cannot justify the Court's
departure from controlling precedent. In my view,
Under our constitutional scheme, the role of safeguarding our "religious heritage" and of promoting religious beliefs is reserved as the exclusive prerogative of our Nation's churches, religious institutions, and spiritual leaders. Because the Framers of the Establishment Clause understood that "religion is too personal, too sacred, too holy to permit its `unhallowed perversion' by civil [authorities]," Engel v. Vitale, the Clause demands that government play no role in this effort. The Court today brushes aside these concerns by insisting that Pawtucket has done nothing more than include a "traditional" symbol of Christmas in its celebration of this national holiday, thereby muting the religious content of the crèche…. But the city's action should be recognized for what it is: a coercive, though perhaps small, step toward establishing the sectarian preferences of the majority at the expense of the minority, accomplished by placing public facilities and funds in support of the religious symbolism and theological tidings that the crèche conveys. As Justice Frankfurter, writing in McGowan v. Maryland, observed, the Establishment Clause "withdr[aws] from the sphere of legitimate legislative concern and competence a specific, but comprehensive, area of human conduct: man's belief or disbelief in the verity of some transcendental idea and man's expression in action of that belief or disbelief." That the Constitution sets this realm of thought and feeling apart from the pressures and antagonisms of government is one of its supreme achievements. Regrettably, the Court today tarnishes that achievement.
justice blackmun, with whom justice stevens joins, dissenting.
As justice brennan
points out, the logic of the Court's decision in Lemon v. Kurtzman (1971) … compels an affirmance
here. If that case and its guidelines mean anything, the presence of
Not only does the Court's resolution of this controversy
make light of our precedents, but also, ironically, the majority does an
injustice to the crèche and the message it
manifests. While certain persons, including the Mayor of Pawtucket, undertook a
crusade to "keep `Christ' in Christmas," … the Court today has
declared that presence virtually irrelevant. The majority urges that the
display, "with or without a crèche,"
"recall[s] the religious nature of the
The import of the Court's decision is to encourage use of the crèche in a municipally sponsored display, a setting where Christians feel constrained in acknowledging its symbolic meaning and non-Christians feel alienated by its presence. Surely, this is a misuse of a sacred symbol. Because I cannot join the Court in denying either the force of our precedents or the sacred message that is at the core of the crèche, I dissent.