County of Allegheny v. ACLU
492 U.S. 573
Case Year: 1989
Case Ruling: 5-4, Affirmed in Part, Reversed in Part
Opinion Justice: Blackmun
Court Opinion Joiner(s):
Brennan, Marshall, O'Connor, Stewart
1st Concurring Opinion
1st Dissenting Opinion
Joiner(s): Rehnquist, Scalia, White
2nd Concurring Opinion
Author: Brennan in Part
Joiner(s): Kennedy, Marshall, O'Connor, Rehnquist, Scalia, Stevens, White
2nd Dissenting Opinion
Author: Stevens in Part
3rd Concurring Opinion
Author: O'Connor in Part
3rd Dissenting Opinion
Other Concurring Opinions:
County of Allegheny concerns the constitutionality of two holiday displays erected every year in downtown Pittsburgh, Pennsylvania. The first was a crèche that belonged to a Roman Catholic group, the Holy Name Society. Beginning with the 1981 Christmas season, the city allowed the society to place the crèche on the grand staircase of the county courthouse, which is, by all accounts, the "main," "most beautiful," and "most public" part of the courthouse. In addition to the usual nativity scene, the display included a banner that read Gloria in Excelsis Deo, a phrase from the Gospel of Luke meaning "Glory to God in the Highest." A few poinsettias and a small tree completed the display.
The second display was a Chanukah menorah located outside of the City-County Building, where the mayor and other city officials have their offices. For much of its history, the city erected only a Christmas tree outside this building, but beginning in the 1980s, it began to include the menorah as well. By 1986 the entire display included a forty-five-foot Christmas tree complete with lights and ornaments; an eighteen-foot menorah, owned by a Jewish group, but stored and erected by the city; and a sign with the heading "Salute to Liberty" and these words: "During this holiday season, the City of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom."
In 1986 the Pittsburgh chapter of the ACLU and several residents of the city filed suit, challenging the constitutionality of the crèche and the menorah. They argued that the displays violated the Religious Establishment Clause.
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  ... 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, Allegheny County has transgressed this line. It has chosen to celebrate Christmas in a way that has the effect of endorsing a patently Christian message: Glory to God for the birth of Jesus Christ. Under Lynch, and the rest of our cases, nothing more is required to demonstrate a violation of the Establishment Clause. The display of the crèche in this context, therefore, must be permanently enjoined....
The display of the Chanukah menorah in front of the City-County Building may well present a closer constitutional question. The menorah, one must recognize, is a religious symbol: it serves to commemorate the miracle of the oil as described in the Talmud. But the menorah's message is not exclusively religious. The menorah is the primary visual symbol for a holiday that, like Christmas, has both religious and secular dimensions.
Moreover, the menorah here stands next to a Christmas tree and a sign saluting liberty. While no challenge has been made here to the display of the tree and the sign, their presence is obviously relevant in determining the effect of the menorah's display. The necessary result of placing a menorah next to a Christmas tree is to create an "overall holiday setting" that represents both Christmas and Chanukah--two holidays, not one.... 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 Grant Street entrance to the City-County Building; the 18-foot menorah is positioned to one side. Given this configuration, it is much more sensible to interpret the meaning of the menorah in light of the tree, rather than vice versa. In the shadow of the tree, the menorah is readily understood as simply a recognition that Christmas is not the only traditional way of observing the winter-holiday season. In these circumstances, then, the combination of the tree and the menorah communicates, not a simultaneous endorsement of both Christian and Jewish faith, but instead, a secular celebration of Christmas coupled with an acknowledgment of Chanukah as a contemporaneous alternative tradition. 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 Pittsburgh will perceive the combined display of the tree, the sign, and the menorah as an "endorsement" or "disapproval ... of their individual religious choices."... While an adjudication of the display's effect must take into account the perspective of one who is neither Christian nor Jewish, as well as of those who adhere to either of these religions, the constitutionality of its effect must also be judged according to the standard of a "reasonable observer."... When measured against this standard, the menorah need not be excluded from this particular display. The Christmas tree alone in the Pittsburgh location does not endorse Christian belief; and, on the facts before us, the addition of the menorah "cannot fairly be understood to" result in the simultaneous endorsement of Christian and Jewish faiths.... On the contrary, for purposes of the Establishment Clause, the city's overall display must be understood as conveying the city's secular recognition of different traditions for celebrating the winter-holiday season....
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 County Courthouse has this unconstitutional effect. The display of the menorah in front of the City-County Building, however, does not have this effect, given its "particular physical setting." The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for further proceedings.
It is so ordered.
JUSTICE KENNEDY, WITH WHOM THE CHIEF JUSTICE, JUSTICE WHITE, AND JUSTICE SCALIA JOIN, CONCURRING IN THE JUDGMENT IN PART AND DISSENTING IN PART.
The majority holds that the County of Allegheny violated the Establishment Clause by displaying crèche in the county courthouse, because the "principal or primary effect" of the display is to advance religion within the meaning of Lemon v. Kurtzman (1971). This view of the Establishment Clause reflects an unjustified hostility toward religion, a hostility inconsistent with our history and our precedents, and I dissent from this holding. The crèche display is constitutional, and, for the same reasons, the display of a menorah by the city of Pittsburgh is permissible as well. On this latter point, I concur in the result, but not the reasoning ... of JUSTICE BLACKMUN's opinion.
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....
Rather than requiring government to avoid any action that acknowledges or aids religion, the Establishment Clause permits government some latitude in recognizing and accommodating the central role religion plays in our society.... Any approach less sensitive to our heritage would border on latent hostility toward religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion and so to the detriment of the religious....
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 Pawtucket's holiday display of a crèche, despite the fact that "the display advance[d] religion in a sense."... Noncoercive government action within the realm of flexible accommodation or passive acknowledgment of existing symbols does not violate the Establishment Clause unless it benefits religion in a way more direct and more substantial than practices that are accepted in our national heritage.
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 United States may turn to God in prayer and meditation at churches, in groups, and as individuals." This statute does not require anyone to pray, of course, but it is a straightforward endorsement of the concept of "turn[ing] to God in prayer."...
... 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.