RELIGIOUS SYMBOLS IN PUBLIC PLACES

In 1984 the Supreme Court, in lynch v. donnelly, rejected a constitutional challenge to the display of a publicly financed nativity scene—a crèche—in a private park in Pawtucket, Rhode Island. Chief Justice warren e. burger's decision for a 5–4 majority evoked deep resentment in many quarters, particularly among non-Christians who opposed the use of public funds to depict an event—the birth of Jesus to the Virgin Mary—that is a central tenet of Christianity. Moreover, the decision appeared to be a sharp departure from the Court's establishment clause precedents, particularly lemon v. kurtzman (1971), in which the Court set forth the three "tests" that the establishment clause imposes on government actions involving religion: "The statute must have a secular legislative purpose … its principal or primary effect must be one that neither advances nor inhibits religion … [and] the statute must not foster "an excessive government entanglement with religion."

Conceding that the crèche was a religious symbol, the majority opinion nevertheless perceived the Pawtucket display as essentially a secular recognition of the historical origins of the Christmas season and therefore a permissible accommodation to religion. The Chief Justice's opinion observed that the display contained a Santa Claus, sleigh, candy-striped poles, and some reindeer. Critics chided the Court for creating a "two-reindeer" rule and, more seriously, for demonstrating extreme insensitivity to non-Christians.

As lower courts and local governments addressed the questions that Lynch v. Donnelly left unanswered, they were guided in large part by Justice sandra day o'connor's concurring opinion in which she reformulated the three-part lemon test by emphasizing that the "purpose" and "effect" prongs of the test are designed to prevent government practices that endorse or disapprove of religion. "Endorsement," she wrote, "sends a message to adherents that they are outsiders, not full members of the political community." Based on this interpretation of Lemon, Justice O'Connor concluded that the purpose of the crèche was not to endorse Christianity but to celebrate a public holiday of secular significance, notwithstanding its religious aspect. As for the effect of the crèche, its "overall holiday setting … negates any message of endorsement" of the religious aspect of the display. Justice O'Connor's "endorsement" test provided a more focused approach than the open-ended emphasis on "accommodation" in Chief Justice Burger's opinion and has been widely followed in subsequent cases even by Justices who disagreed with her conclusion that the Pawtucket crèche was constitutional.

After five years of extensive litigation and public controversy, the Supreme Court revisited the religious-display issue in 1989 when, in county of allegheny v. american civil liberties union, it ruled that (1) a privately financed crèche, without holiday trappings and embellished with a banner proclaiming "Gloria in Excelsis Deo," was unconstitutional as displayed in the main staircase of a county courthouse; and (2) an eighteen-foot menorah situated outside a county office building was constitutional as part of a display that featured the menorah alongside a forty-five-foot Christmas tree and a "Salute to Liberty" sign reminding viewers that "We are the keepers of the flame of liberty and our legacy of freedom." In light of the retirement of Justice william j. brennan in July of 1990, the division on the Court in the Allegheny case was significant. Four Justices (william h. rehnquist, byron r. white, antonin scalia, and anthony m. kennedy) would have upheld both displays because there was no governmental effort to coerce or proselytize, and three Justices (Brennan, thurgood marshall, and john paul stevens) found both displays unconstitutional. Thus, the votes of Justices harry a. blackmun and O'Connor produced majorities upholding one display (the menorah) and invalidating the other (the crèche).

The Pawtucket crèche posed a risk of government endorsement because it was publicly financed. The Allegheny County displays, although privately financed, posed a similar danger because they were located in or near government buildings. By eschewing a clear test that would bar all government-financed displays with religious messages, or privately financed displays adjacent to government buildings, certain Justices on the Court were compelled in both cases to emphasize the design of the display as the key element of constitutionality. It was predictable, therefore, that governments would almost certainly invite litigation if they paid for holiday displays containing religious symbols or placed them in front of or in government buildings. Such displays require a fact-specific evaluation to determine whether the religious message has been sufficiently mixed with the secular holiday observance to avoid the overall impression of governmental endorsement of religion. A subject as intensely personal as religion is likely to evoke strong reactions if religious displays are constructed with public funds or if they are placed in locations that give them some type of official status.

These disputes, and the attendant divisiveness, can be minimized, however, if private groups, rather than the government, pay for holiday displays that contain religious symbols and if such displays are placed in traditional forums, like parks and plazas, that are normally used for speeches, displays, or other expressions of opinion. Indeed, the free-speech provisions of the first amendment probably protect the right of a private group to display a crèche or menorah in a public forum, even without holiday trappings, as the symbolic expression of the celebration of the holiday season.

Since the Supreme Court's decision in Allegheny County, there is evidence that local communities have indeed adopted policies that avoid the divisiveness that the establishment clause was intended to prevent. They have relied increasingly on private groups to sponsor religious holiday displays and have selected locations that are not adjacent to public buildings such as city halls and courthouses. This development has the salutary effect of compelling governments, private parties, and courts to consider the nature of the forum rather than the numbers of reindeer, the prominence of Santa Claus, or the relative sizes of a menorah and a Christmas tree.

If governments desire to participate more actively in celebrating the Christmas season, the traditional Christmas tree provides a constitutionally acceptable alternative. Christmas trees have acquired a sufficiently secular meaning as a symbol of the holiday season so that their display does not endorse Christianity regardless of who bears the cost or wherever the tree may be located. If communities display understanding and restraint, the Constitution need not prevent the Christmas holiday season from serving as an occasion for uniting Americans rather than dividing them along religious lines.

Norman Redlich
(1992)

Bibliography

Dorsen, Norman and Sims, Charles 1985 The Nativity Scene Case; An Error of Judgment. University of Illinois Law Review 1985:837–868.

Redlich, Norman 1984 "Nativity Ruling Insults Jews." New York Times, March 26, 1984.

Van Alstyne, William 1984 Trends in the Supreme Court: Mr. Jefferson's Crumbling Wall—A Comment on Lynch v. Donnelly. Duke University Law Journal 1984:770–787.