In the mid-1980s, the Supreme Court first considered the constitutionality of religious holiday displays in Lynch v. Donnelly, 465 U.S. 668 (1984), involving a city’s display of a nativity scene among other symbols of the Christmas holiday. There, a sharply divided Court upheld the display, concluding that the nativity scene, when accompanied by other, secular holiday symbols, had neither the purpose nor the effect of advancing religion and did not amount to an excessive entanglement between government and religion. Justice Sandra Day O’Connor concurred separately, suggesting that the appropriate inquiry was whether the city’s action had the purpose or effect of endorsing religion. Unconstitutional endorsements of religion, according to her analysis, sent messages to those not adhering to the favored religion that they were outsiders and less than full members of the political community. In a series of concurrences in establishment clause cases following Lynch, O’Connor continued to argue for use of the no-endorsement test. County of Allegheny is significant because it was the first case in which an opinion for the Court articulated a decision in terms of O’Connor’s test.
In County of Allegheny v. ACLU, the Court revisited the issue of religious holiday displays. The case presented the Court with two different displays. The first display included a nativity scene bearing a banner proclaiming ‘‘Gloria in Excelsis Deo!’’ located on the grand staircase of a county courthouse. The display was surrounded by a fence, with poinsettias eventually placed in front of the fence and small evergreen trees, with red bows, stationed at the ends of the fence. A small sign informed observers that the display had been donated by a Roman Catholic organization.
Announcing the judgment of the Court, Justice Harry Blackmun, applying the no-endorsement test, concluded that the display of the nativity scene was unconstitutional since it had the effect of endorsing religion. Blackmun noted that, unlike the nativity scene in Lynch, the nativity scene in the courthouse was not accompanied by other holiday emblems or symbols that might have detracted from the religious message of the scene. The poinsettias and small evergreens did not have this effect. Accordingly, he concluded, the effect of this display was one of endorsing the Christian message associated with the nativity scene.
The second display consisted of a 45-foot high Christmas tree outside one of Pittsburgh’s public buildings, at the foot of which was a sign with the mayor’s name titled ‘‘Salute to Liberty.’’ Under the title the sign contained a holiday message saluting liberty and reminding observers of their ‘‘legacy of freedom.’’ An 18-foot menorah, a symbol of the Jewish holiday Chanukah, stood beside the Christmas tree. Justice Blackmun concluded that this display did not violate the establishment clause, since its multiple symbols—partially Christian, partially Jewish, and partially secular—did not collectively convey an endorsement of Christianity and Judaism, but simply recognition of cultural diversity. Justice O’Connor concurred with both results.
Justice Kennedy, joined by Chief Justice Rehnquist and Justices White and Scalia, partially dissenting and partially concurring, concluded that both displays were constitutional. He argued that the Establishment Clause permitted ‘‘some latitude in recognizing and accommodating the central role religion plays in our society’’ and that a contrary view would amount to ‘‘latent hostility’’ toward religion. Justice Kennedy’s opinion suggested an attempt to pose a new framework for understanding the essential prohibition of the establishment clause in terms only of a bar against government action coercive of religious belief or practice and action with the tendency of establishing a state religion. Justice Kennedy again emphasized the issue of coercion in Lee v. Weisman, 505 U.S. 577 (1992), where, writing for the Court’s majority, he explained why prayers offered at a middle-school graduation ceremony violated the establishment clause.
But the notion that coercion must be a defining characteristic of establishment violations has failed to find the support of a majority of the Court. Justices Brennan and Stevens filed opinions partially concurring and partially dissenting from the judgment in the case. They, along with Justice Marshall, who joined their respective opinions, would have held both displays unconstitutional.
In terms of specific results, County of Allegheny reinforced the view of many observers after Lynch v. Donnelly that the Court had implicitly embraced what is sometimes referred to as the ‘‘reindeer rule.’’ By this it was understood that nativity scenes would survive constitutional challenge so long as they were accompanied by secular symbols of the Christmas holiday, such as reindeer. In practice, the constitutionality of government-sponsored religious symbols has tended to turn on whether these symbols are part of a larger context that includes secular symbols as well. This judicial approach is a clear retreat from the ‘‘wall of separation’’ rhetoric of the Court’s earlier establishment clause cases in favor of an emphasis on norms of equality. The possibility of a court finding an endorsement of religion declines as particular religious symbols take their place among other symbols.
This trend in the Court’s treatment of religious symbols parallels its treatment of religious speakers during the same period. During the last two decades of the twentieth century, the Court repeatedly considered whether religious speakers were entitled to equal access to various public forums on terms comparable to those enjoyed by other speakers. The Court generally concluded that they did and, in so doing, rejected views of the establishment clause that would have denied this access as an impermissible aid to religion or as amounting to an unconstitutional breach in the wall separating government and religion. So long as religious speakers took their place in contexts with other speakers, the establishment clause did not forbid their speech and the free speech clause required that this speech be protected.
As to the Court’s establishment clause jurisprudence, it appeared at the time that County of Allegheny might have represented a triumph of Justice O’Connor’s no-endorsement test over the three-part Lemon test (Lemon v. Kurtzman, 403 U.S. 602, 1971). The case was the first in which an opinion for the Court had relied on the no-endorsement test. Subsequent cases, however, suggested that Justice O’Connor’s test serves merely to supplement rather than to replace the Lemon test. The Court continues to examine government actions in terms of whether they have the purpose or effect of advancing religion.
TIMOTHY L. HALL
References and Further Reading
Cases and Statutes Cited
See also Lemon Test; Lynch v. Donnelly, 465 US 668 (1984); Religion in ‘‘Public Square’’ Debate