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USA > US Constitution > 1st Amendment > Religious Displays on Government Property



Religious Displays on Government Property

Religious Displays on Government Property. — A different form of governmentally sanctioned religious observance—inclusion of religious symbols in governmentally sponsored holiday displays—was twice before the Court, with varying results. In 1984, in Lynch v. Donnelly,211 the Court found no violation of the Establishment Clause occasioned by inclusion of a Nativity scene (creche) in a city’s Christmas display; in 1989, in Allegheny County v. Greater Pittsburgh ACLU,212 inclusion of a creche in a holiday display was found to constitute a violation. Also at issue in Allegheny County was inclusion of a menorah in a holiday display; here the Court found no violation. The setting of each display was crucial to the varying results in these cases, the determinant being whether the Court majority believed that the overall effect of the display was to emphasize the religious nature of the symbols, or whether instead the emphasis was primarily secular. Perhaps equally important for future cases, however, was the fact that the four dissenters in Allegheny County would have upheld both the creche and menorah displays under a more relaxed, deferential standard.

Chief Justice Burger’s opinion for the Court in Lynch began by expanding on the religious heritage theme exemplified by Marsh; other evidence that “'[w]e are a religious people whose institutions presuppose a Supreme Being”'213 was supplied by reference to the national motto “In God We Trust,” the affirmation “one nation under God” in the pledge of allegiance, and the recognition of both Thanksgiving and Christmas as national holidays. Against that background, the Court then determined that the city’s inclusion of the creche in its Christmas display had a legitimate secular purpose in recognizing “the historical origins of this traditional event long [celebrated] as a National Holiday,”214 and that its primary effect was not to advance religion. The benefit to religion was called “indirect, remote, and incidental,” and in any event no greater than the benefit resulting from other actions that had been found to be permissible, e.g. the provision of transportation and textbooks to parochial school students, various assistance to church-supported colleges, Sunday closing laws, and legislative prayers.215 The Court also reversed the lower court’s finding of entanglement based only on “political divisiveness.”216chanroblesvirtuallawlibrary

211 465 U.S. 668 (1984). Lynch was a 5-4 decision, with Justice Blackmun, who voted with the majority in Marsh, joining the Marsh dissenters in this case. Again, Chief Justice Burger wrote the opinion of the Court, joined by the other majority Justices, and again Justice Brennan wrote a dissent, joined by the other dissenters. A concurring opinion was added by Justice O'Connor, and a dissenting opinion was added by Justice Blackmun.

212 492 U.S. 573 (1989).

213 465 U.S. at 675, quoting Zorach v. Clausen, 343 U.S. 306, 313 (1952).

214 465 U.S. at 680.

215 465 U.S. at 681-82. Note that, while the extent of benefit to religion was an important factor in earlier cases, it was usually balanced against the secular effect of the same practice rather than the religious effects of other practices.

216 465 U.S. at 683-84.

Allegheny County was also decided by a 5-4 vote, Justice Blackmun writing the opinion of the Court on the creche issue, and there being no opinion of the Court on the menorah issue.217 To the majority, the setting of the creche was distinguishable from that in Lynch. The creche stood alone on the center staircase of the county courthouse, bore a sign identifying it as the donation of a Roman Catholic group, and also had an angel holding a banner proclaiming “Gloria in Exclesis Deo.” Nothing in the display “detract[ed] from the creche’s religious message,” and the overall effect was to endorse that religious message.218 The menorah, on the other hand, was placed outside a government building alongside a Christmas tree and a sign saluting liberty, and bore no religious messages. To Justice Blackmun, this grouping merely recognized “that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status”;219 to concurring Justice O'Connor, the display’s “message of pluralism” did not endorse religion over nonreligion even though Chanukah is primarily a religious holiday and even though the menorah is a religious symbol.220 The dissenters, critical of the endorsement test proposed by Justice O'Connor and of the three-part Lemon test, would instead distill two principles from the Establishment Clause: “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.”'221chanroblesvirtuallawlibrary

217 Justice O'Connor, who had concurred in Lynch, was the pivotal vote, joining the Lynch dissenters to form the majority in Allegheny County. Justices Scalia and Kennedy, not on the Court in 1984, replaced Chief Justice Burger and Justice Powell in voting to uphold the creche display; Justice Kennedy authored the dissenting opinion, joined by the other three.

218 492 U.S. at 598, 600.

219 492 U.S. at 616.

220 492 U.S. at 635.

221 492 U.S. at 659.

In Capitol Square Review Bd. v. Pinette,222 the Court distinguished privately sponsored from governmentally sponsored religious displays on public property. There the Court ruled that Ohio violated free speech rights by refusing to allow the Ku Klux Klan to display an unattended cross in a publicly owned plaza outside the Ohio Statehouse. Because the plaza was a public forum in which the State had allowed a broad range of speakers and a variety of unattended displays, the State could regulate the expressive content of such speeches and displays only if the restriction was necessary, and narrowly drawn, to serve a compelling state interest. The Court recognized that compliance with the Establishment Clause can be a sufficiently compelling reason to justify content-based restrictions on speech, but saw no need to apply this principle when permission to display a religious symbol is granted through the same procedures, and on the same terms, required of other private groups seeking to convey non-religious messages.

222 515 U.S. 753 (1995). The Court was divided 7-2 on the merits of Pinette, a vote that obscured continuing disagreement over analytical approach. The portions of Justice Scalia’s opinion that formed the opinion of the Court were joined by Chief Justice Rehnquist and by Justices O'Connor, Kennedy, Souter, Thomas, and Breyer. A separate part of Justice Scalia’s opinion, joined only by the Chief Justice and by Justices Kennedy and Thomas, disputed the assertions of Justices O'Connor, Souter, and Breyer that the “endorsement” test should be applied. Dissenting Justice Stevens thought that allowing the display on the Capitol grounds did carry “a clear image of endorsement” (id. at 811), and Justice Ginsburg’s brief opinion seemingly agreed with that conclusion.






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