Religious Symbols on Public Property
Disputes involving the display of religious symbols on public property are resolved under the Establishment Clause of the First Amendment: does the government’s display of a religious symbol, like a cre`che, constitute an establishment of religion? The justices of the U.S. Supreme Court have not settled upon any one standard for resolving these disputes, but rather have articulated and applied a variety of tests. Partly because of the unsettled nature of the legal doctrine, the results in these cases have been unpredictable. In Lemon v. Kurtzman, a 1971 decision, the Court articulated a three-part test to determine whether a governmental action, such as a statute, violates the Establishment Clause. The Lemon test provided as follows: ‘‘First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’’’ For approximately a decade, the Lemon test remained the standard for resolving Establishment Clause issues, but it has since been subject to severe criticisms. Regardless, the Court still occasionally applies this test and has never expressly or fully repudiated it. The uncertainty surrounding Lemon has provided the doctrinal context for the Court’s decisions regarding religious symbols. Religious Symbol Cases The seminal religious-symbol case is Lynch v. Donnelly, decided in 1984. The city of Pawtucket, Rhode Island, constructed a Christmas display in a public park. The display was ‘‘essentially like those to be found in hundreds of towns or cities across the Nation— often on public grounds—during the Christmas season,’’ the Court explained. It consisted of ‘‘many of the figures and decorations traditionally associated with Christmas, including, among other things, a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner [reading] ‘SEASONS GREETINGS,’ and the cre`che.’’ The Court focused solely on whether the governmental display of the cre`che violated the Establishment Clause.
The Court’s opinion in Lynch revealed the justices’ ambivalence regarding the appropriate doctrine for adjudicating an Establishment Clause issue. The Court began with a review of American history showing that government and religion have often been entwined despite the Establishment Clause: ‘‘There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.’’ The Court, however, did not rely solely on that history to uphold the governmental action. Instead, the Court presented the Lemon test, noting that it has often been ‘‘useful’’ in Establishment Clause cases. ‘‘But,’’ the Court added, ‘‘we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area.’’
The Court then applied the Lemon test to the facts. Yet, when applying the first Lemon prong, the purpose prong, the Court again stressed history. In reasoning that the display of the cre`che had a secular purpose, the Court cast Christmas as a historical event rather than a Christian holiday: ‘‘[Pawtucket], like the Congresses and Presidents ... has principally taken note of a significant historical religious event long celebrated in the Western World. The cre`che in the display depicts the historical origins of this traditional event long recognized as a National Holiday.’’ Then, in analyzing the second prong—whether the primary effect of the cre`che was to advance religion— the Court yet again adverted to history. If the governmental display of the cre`che were to fail the effects prong, the Court reasoned, then many other traditional forms of governmental support for religion would have to be deemed unconstitutional. Finally, the Court concluded that the display of the cre`che did not amount to excessive governmental entanglement with religion, the third prong of Lemon. Administrative entanglement did not exist because governmental officials were not involved in religious affairs. Moreover, the cre`che display did not generate political divisiveness among the Pawtucket citizens, the Court explained, because nobody had previously complained about the display, even though it had been erected for forty years. Of course, despite the Court’s reasoning, non-Christian religious outsiders might have previously remained silent not because they happily accepted the Christmas display but because they feared the reprisals that might follow from protest. In fact, when the Lynch lawsuit was initiated, many Pawtucket citizens and officials reacted angrily. The mayor denounced the suit as ‘‘a petty attack aimed at taking Christ out of Christmas,’’ and the Pawtucket Evening Times labeled the suit ‘‘absurd.’’ The Court, in any event, held that the governmental display of the cre`che satisfied all three prongs of the Lemon test and therefore was constitutional.
Because of dissatisfaction with Lemon, Justice O’Connor wrote a concurrence in Lynch that recommended the adoption of an alternative approach: an endorsement test. O’Connor’s new test had two prongs: first, does the state action create excessive governmental entanglement with religion, and second, does the state action amount to governmental endorsement or disapproval of religion. The endorsement test can be read in at least two different ways. Under one reading, the endorsement test merely reformulates the Lemon test. Under a second reading, the endorsement test stresses that the Establishment Clause should protect an individual’s connection to or standing within the political community. At least as applied by O’Connor, however, the endorsement test tends to produce the same results as Lemon. For instance, in Lynch, O’Connor, concurring in the majority’s conclusion, reasoned that the cre`che ‘‘cannot fairly be understood to convey a message of government endorsement of religion.’’
Over the next several years, the Court continued to apply the Lemon test to resolve most Establishment Clause issues, but simultaneously, the endorsement test gathered greater support among the justices. In County of Allegheny v. American Civil Liberties Union, decided in 1989, the constitutional question of governmental displays of religious symbols once again was explicitly raised. Two separate displays were challenged. The first was a cre`che that stood alone on a staircase in a county courthouse. The second was a Jewish Chanukah menorah placed with a Christmas tree and a sign saluting liberty just outside a governmental building. A majority of justices was unable to agree on any one test for determining the constitutionality of these displays. The Court’s opinion articulated both the Lemon and the endorsement tests while suggesting that the latter refined the former. Yet, a plurality opinion in the same case not only fully accepted the endorsement test but also argued that a majority of justices previously had accepted it, though never in one majority opinion. Finally, Justice Kennedy, concurring and dissenting, advocated that the Court adopt yet a different approach to Establishment Clause issues. Kennedy’s so-called coercion test had two parts: ‘‘[G]overnment 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.’’’
Allegheny County suggested that the constitutionality of governmental displays of religious symbols would be determined in an ad hoc fashion, with the result depending upon the specific facts of each case. The Court held that the display of the cre`che was unconstitutional because it stood alone, unlike the cre`che in Lynch which had been part of a larger ‘‘Christmas display.’’ Since the Allegheny County cre`che stood apart, ‘‘nothing in the context of the display detracts from the cre`che’s religious message.’’ Using similar reasoning, the Court then held that the display of the menorah was constitutional because it was accompanied by a Christmas tree and a sign saluting liberty. The religious message of the menorah, the Court reasoned, was dissipated since the menorah stood within the larger holiday display.
Two special situations bear mentioning. First, the Court has acquiesced when nongovernmental actors place religious symbols on governmental property. In Capitol Square Review and Advisory Board v. Pinette (1995), the Court held that a private actor, the Ku Klux Klan, could constitutionally display a large Latin (Christian) cross on public property. Second, the Court has been especially wary of any religious activities or symbols in public elementary and secondary schools. In Stone v. Graham (1980), the Court considered the constitutionality of a state statute that required the biblical Ten Commandments to be posted on public classroom walls. The Court applied the Lemon test. But whereas the Lynch Court insisted that a governmental action failed the purpose prong of Lemon only if the government was ‘‘motivated wholly by religious considerations,’’ the Stone Court reasoned otherwise. The legislature in Stone had explicitly articulated a secular purpose for the Ten-Commandments statute, yet the Court nonetheless held the statute unconstitutional. The government’s purpose, the Court reasoned, was predominantly to promote religion despite any possible secular justifications.
STEPHEN M. FELDMAN
References and Further Reading
- Chemerinsky, Erwin. Constitutional Law: Principles and Policies. 2nd ed. New York: Aspen Law & Business, 2002.
- Feldman, Stephen M. Please Don’t Wish Me a Merry Christmas: A Critical History of the Separation of Church and State. New York: New York University Press, 1997.
- Sullivan, Winnifred Fallers. Paying the Words Extra: Religious Discourse in the Supreme Court of the United States. Cambridge, MA: Harvard University Press, 1994.
- Swanson, Wayne R. The Christ Child Goes to Court. Philadelphia: Temple University Press, 1990.
- Karst, Kenneth. The First Amendment, the Politics of Religion and the Symbols of Government, Harvard Civil Rights-Civil Liberties Law Review 27 (1992): 503–30.
Cases and Statutes Cited
- Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995)
- County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989)
- Lemon v. Kurtzman, 403 U.S. 602 (1971)
- Lynch v. Donnelly, 465 U.S. 668 (1984)
- Stone v. Graham, 449 U.S. 39 (1980)