In Lynch v. Donnelly, the Supreme Court for the first time considered the constitutionality of government use or display of religious symbols. The Court held that a government-owned creche or nativity scene could constitutionally be displayed in a public area at Christmastime as an acknowledgement of the nation’s religious traditions. The holding has commonly been interpreted as also requiring that to be permissible, displays of religious symbols must be part of larger, holiday displays that include secular symbols. Although Lynch addressed a practice common in many communities, the decision is most significant for its development of a new analytical approach for judging establishment clause challenges, called the ‘‘endorsement test.’’
Lynch involved a challenge to a Christmas display in the downtown shopping district of Pawtucket, Rhode Island. The display, comprising secular and religious holiday figures and decorations commonly associated with Christmas (including a Santa Clause house, a reindeer sleigh, candy cane poles, a Christmas tree, and a banner reading ‘‘Seasons Greetings’’) was a cooperative effort of the City of Pawtucket and the local retail merchants association. The City owned all components of the display, including the near-life size creche that depicted the traditional birth of Jesus, and the items were placed on a park owned by a nonprofit group located in the heart of the shopping district. Even though the display was on private property, the Court treated the issue as one involving a government-sponsored display involving religious items. The plaintiffs, resident taxpayers, challenged the display as creating the appearance of official sponsorship of Christianity in violation of the establishment clause.
In a five-to-four decision written by Chief Justice Warren Burger, the Court upheld the constitutionality of the display. The Court used a historical analytical approach to the problem, noting the ‘‘unbroken history of official acknowledgement by all three branches of government of the role of religion in American public life from at least 1789.’’ These ‘‘official references’’ to religion, found in practices such as Thanksgiving Day declarations and the references to God in the national motto and in the Pledge of Allegiance indicated the legitimacy of such acknowledgements. The Court declared that it had declined to adopt ‘‘a rigid, absolutist view of the establishment clause,’’ but instead, must take an approach that acknowledged the nation’s traditions and ‘‘encourage[d] diversity and pluralism in all areas.’’ Because the City lacked a purpose to advance Christianity and provided what the Court described as only an ‘‘incidental’’ benefit to religion, the display did not contravene the establishment clause. The Court also expressed concern that a holding to the contrary would expose to challenge a host of other official and unofficial acknowledgements of the nation’s religious heritage.
The majority opinion’s lack of a clear analytical standard or limiting principle to government uses of religious symbolism led Justice Sandra Day O’Connor to write a concurring opinion to explain when permissible government uses of religion crosses over into impermissible advancements of religion. Justice O’Connor urged that the appropriate constitutional inquiry should be on whether the government’s action has the purpose or effect of conveying a message of either endorsement or disapproval of religion. Subsequently called the ‘‘endorsement test,’’ the inquiry asks whether a reasonable observer, later modified to be a reasonable nonadherent familiar with the history of the challenged practice, would perceive the government action as communicating a message of official approval or disapproval of religion. The constitutional concern, according to Justice O’Connor, is to ensure that government actions do not appear to ‘‘make religion relevant, in reality or public perception, to [one’s] status in the political community.’’ Because of the mix of secular and religious objects and the overall context of the holiday display, Justice O’Connor indicated that a reasonable observer would not likely perceive the Pawtucket creche as an endorsement of religion.
Justice O’Connor’s concurrence was clearly the superior opinion, and the Court applied her endorsement test in subsequent establishment clause challenges to public religious displays. In Allegheny County v. ACLU (1989), a Court plurality used the endorsement test to strike down the private display of a singular creche in a county courthouse but to uphold a larger holiday display in a government building involving a menorah, a Christmas tree, and other holiday decorations. In Capitol Review and Advisory Board v. Pinette (1995), involving a display of a Ku Klux Klan cross on the public grounds of the Ohio state capitol, a Court plurality argued that the endorsement test should never apply to privately owned religious displays, but Justice O’Connor commanded a majority by insisting that establishment clause may be violated through official endorsements of private religious expression. The endorsement test has found less application outside the religious display context, although the High Court has used it in controversies involving public school–sponsored religious activities (see Wallace v. Jaffree ; Santa Fe Independent School District v. Doe ). Justice O’Connor has urged its use in other establishment clause contexts, such as with challenges to government funding of religious institutions, but she has been unable to command a majority for its application in most other establishment clause areas. The endorsement test has been most influential with lower courts, however, with judges commonly employing an endorsement analysis, often in tandem with other analytical approaches, in many establishment clause cases that are never reviewed by the Supreme Court.
STEVEN K. GREEN
Cases and Statutes Cited