|Lynch v. Donnelly
[ Burger ]
[ O'Connor ]
[ Brennan ]
[ Blackmun ]
Lynch v. Donnelly
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting.
The principles announced in the compact phrases of the Religion Clauses have, as the Court today reminds us, ante at 465 U.S. 678"]678-679, proved difficult to apply. Faced with that uncertainty, the Court properly looks for guidance to the settled test announced in 678-679, proved difficult to apply. Faced with that uncertainty, the Court properly looks for guidance to the settled test announced in Lemon v. Kurtzman, 403 U.S. 602 (1971), for assessing whether a challenged governmental practice involves an impermissible step toward the establishment of religion. Ante at 679. Applying that test to this case, the [p695] Court reaches an essentially narrow result which turns largely upon the particular holiday context in which the city of Pawtucket's nativity scene appeared. The Court's decision implicitly leaves open questions concerning the constitutionality of the public display on public property of a creche standing alone, or the public display of other distinctively religious symbols such as a cross. [n1] Despite the narrow contours of the Court's opinion, our precedents, in my view, compel the holding that Pawtucket's inclusion of a life-sized display depicting the biblical description of the birth of Christ as part of its annual Christmas celebration is unconstitutional. Nothing in the history of such practices or the setting in which the city's creche is presented obscures or diminishes the plain fact that Pawtucket's action amounts to an impermissible governmental endorsement of a particular faith.
Last Term, I expressed the hope that the Court's decision in Marsh v. Chambers, 463 U.S. 783 (1983), would prove to be only a single, aberrant departure from our settled method [p696] of analyzing Establishment Clause cases. Id. at 796 (BRENNAN, J., dissenting). That the Court today returns to the settled analysis of our prior cases gratifies that hope. At the same time, the Court's less-than-vigorous application of the Lemon test suggests that its commitment to those standards may only be superficial. [n2] After reviewing the Court's opinion, I am convinced that this case appears hard not because the principles of decision are obscure, but because the Christmas holiday seems so familiar and agreeable. Although the [p697] Court's reluctance to disturb a community's chosen method of celebrating such an agreeable holiday is understandable, that cannot justify the Court's departure from controlling precedent. In my view, Pawtucket's maintenance and display at public expense of a symbol as distinctively sectarian as a creche simply cannot be squared with our prior cases. And it is plainly contrary to the purposes and values of the Establishment Clause to pretend, as the Court does, that the otherwise secular setting of Pawtucket's nativity scene dilutes in some fashion the creche's singular religiosity, or that the city's annual display reflects nothing more than an "acknowledgment" of our shared national heritage. Neither the character of the Christmas holiday itself nor our heritage of religious expression supports this result. Indeed, our remarkable and precious religious diversity as a Nation, see Torcaso v. Watkins, 367 U.S. 488, 495 (1961); Abington School Dist. v. Schempp, 374 U.S. 203, 240-241 (1963) (BRENNAN, J., concurring), which the Establishment Clause seeks to protect, runs directly counter to today's decision.
As we have sought to meet new problems arising under the Establishment Clause, our decisions, with few exceptions, have demanded that a challenged governmental practice satisfy the following criteria:
First, the [practice] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, [it] must not foster "an excessive government entanglement with religion."
This well-defined three-part test expresses the essential concerns animating the Establishment Clause. Thus, the test is designed to ensure that the organs of government remain strictly separate and apart from religious affairs, for "a union of government and religion tends to destroy government and degrade religion." Engel v. Vitale, 370 U.S. 421, 431 (1962). And it seeks to guarantee that government maintains a position of neutrality with respect to religion and neither advances nor inhibits the promulgation and practice of religious beliefs. Everson v. Board of Education, 330 U.S. 1, 15 (1947) ("Neither [a State nor the Federal Government] can pass laws which aid one religion, aid all religions, or prefer one religion over another"); Epperson v. Arkansas, 393 U.S. 97, 103-104 (1968); Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 792-793 (1973). In this regard, we must be alert in our examination of any challenged practice not only for an official establishment of religion, but also for those other evils at which the Clause was aimed -- "‘sponsorship, financial support, and active involvement of the sovereign in religious activity.'" Committee for Public Education & Religious Liberty v. Nyquist, supra, at 772 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970)).
Applying the three-part test to Pawtucket's creche, I am persuaded that the city's inclusion of the creche in its Christmas display simply does not reflect a "clearly secular . . . purpose." Nyquist, supra, at 773. Unlike the typical case in which the record reveals some contemporaneous expression of a clear purpose to advance religion, see, e.g., Epperson v. Arkansas, supra, at 107-109; Engel v. Vitale, supra, at 423, or, conversely, a clear secular purpose, see, e.g., Lemon v. Kurtzman, supra, at 613; Wolman v. Walter, [p699] 433 U.S. 229, 236 (1977), here we have no explicit statement of purpose by Pawtucket's municipal government accompanying its decision to purchase, display, and maintain the creche. Governmental purpose may nevertheless be inferred. For instance, in Stone v. Graham, 449 U.S. 39, 41 (1980) (per curiam), this Court found, despite the State's avowed purpose of reminding schoolchildren of the secular application of the commands of the Decalogue, that the "preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature." In the present case, the city claims that its purposes were exclusively secular. Pawtucket sought, according to this view, only to participate in the celebration of a national holiday and to attract people to the downtown area in order to promote pre-Christmas retail sales and to help engender the spirit of goodwill and neighborliness commonly associated with the Christmas season. Brief for Petitioners 29.
Despite these assertions, two compelling aspects of this case indicate that our generally prudent "reluctance to attribute unconstitutional motives" to a governmental body, Mueller v. Allen, 463 U.S. 388, 394 (1983), should be overcome. First, as was true in Larkin v. Grendel's Den, Inc., 459 U.S. 116, 123-124 (1982), all of Pawtucket's "valid secular objectives can be readily accomplished by other means." [n4] Plainly, the city's interest in celebrating the holiday and in promoting both retail sales and goodwill are fully served by the elaborate display of Santa Claus, reindeer, and wishing wells that are already a part of Pawtucket's annual Christmas [p700] display. [n5] More importantly, the nativity scene, unlike every other element of the Hodgson Park display, reflects a sectarian exclusivity that the avowed purposes of celebrating the holiday season and promoting retail commerce simply do not encompass. To be found constitutional, Pawtucket's seasonal celebration must at least be nondenominational and not serve to promote religion. The inclusion of a distinctively religious element like the creche, however, demonstrates that a narrower sectarian purpose lay behind the decision to include a nativity scene. That the creche retained this religious character for the people and municipal government of Pawtucket is suggested by the Mayor's testimony at trial, in which he stated that, for him as well as others in the city, the effort to eliminate the nativity scene from Pawtucket's Christmas celebration "is a step towards establishing another religion, non-religion that it may be." App. 100. [n6] Plainly, the city and its leaders understood that the inclusion of the creche in its display would serve the wholly religious purpose [p701] of "keep[ing] ‘Christ in Christmas.'" 525 F.Supp. 1150, 1173 (RI 1981). From this record, therefore, it is impossible to say with the kind of confidence that was possible in McGowan v. Maryland, 366 U.S. 420, 445 (1961), that a wholly secular goal predominates.
The "primary effect" of including a nativity scene in the city's display is, as the District Court found, to place the government's imprimatur of approval on the particular religious beliefs exemplified by the creche. Those who believe in the message of the nativity receive the unique and exclusive benefit of public recognition and approval of their views. For many, the city's decision to include the creche as part of its extensive and costly efforts to celebrate Christmas can only mean that the prestige of the government has been conferred on the beliefs associated with the creche, thereby providing "a significant symbolic benefit to religion. . . ." Larkin v. Grendel's Den, Inc., supra, at 125-126. The effect on minority religious groups, as well as on those who may reject all religion, is to convey the message that their views are not similarly worthy of public recognition nor entitled to public support. [n7] It was precisely this sort of religious chauvinism that the Establishment Clause was intended forever to prohibit. In this case, as in Engel v. Vitale,
[w]hen the power, prestige and financial support of government is placed behind [p702] a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.
370 U.S. at 431. Our decision in Widmar v. Vincent, 454 U.S. 263 (1981), rests upon the same principle. There the Court noted that a state university policy of "equal access" for both secular and religious groups would "not confer any imprimatur of state approval" on the religious groups permitted to use the facilities because "a broad spectrum of groups" would be served and there was no evidence that religious groups would dominate the forum. Id. at 274. Here, by contrast, Pawtucket itself owns the creche, and instead of extending similar attention to a "broad spectrum" of religious and secular groups, it has singled out Christianity for special treatment.
Finally, it is evident that Pawtucket's inclusion of a creche as part of its annual Christmas display does pose a significant threat of fostering "excessive entanglement." As the Court notes, ante at 683, the District Court found no administrative entanglement in this case, primarily because the city had been able to administer the annual display without extensive consultation with religious officials. See 525 F.Supp. at 1179. Of course, there is no reason to disturb that finding, but it is worth noting that, after today's decision, administrative entanglements may well develop. Jews and other non-Christian groups, prompted perhaps by the Mayor's remark that he will include a Menorah in future displays, [n8] can be expected to press government for inclusion of their symbols, and faced with such requests, government will have to become involved in accommodating the various demands. Cf. Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. at 796 ("competing efforts [by religious groups] to gain or maintain the support of government" may "occasio[n] considerable civil strife"). More importantly, although no political divisiveness was apparent in Pawtucket [p703] prior to the filing of respondents' lawsuit, that act, as the District Court found, unleashed powerful emotional reactions which divided the city along religious lines. 525 F.Supp. at 1180. The fact that calm had prevailed prior to this suit does not immediately suggest the absence of any division on the point for, as the District Court observed, the quiescence of those opposed to the creche may have reflected nothing more than their sense of futility in opposing the majority. Id. at 1179. Of course, the Court is correct to note that we have never held that the potential for divisiveness alone is sufficient to invalidate a challenged governmental practice; we have, nevertheless, repeatedly emphasized that "too close a proximity" between religious and civil authorities, Schempp, 374 U.S. at 259 (BRENNAN, J., concurring), may represent a "warning signal" that the values embodied in the Establishment Clause are at risk. Committee for Public Education & Religious Liberty v. Nyquist, supra, at 798. [n9] Furthermore, the Court should not blind itself to the fact that, because communities [p704] differ in religious composition, the controversy over whether local governments may adopt religious symbols will continue to fester. In many communities, non-Christian groups can be expected to combat practices similar to Pawtucket's; this will be so especially in areas where there are substantial non-Christian minorities. [n10]
In sum, considering the District Court's careful findings of fact under the three-part analysis called for by our prior cases, I have no difficulty concluding that Pawtucket's display of the creche is unconstitutional. [n11] [p705]
The Court advances two principal arguments to support its conclusion that the Pawtucket creche satisfies the Lemon test. Neither is persuasive.
First. The Court, by focusing on the holiday "context" in which the nativity scene appeared, seeks to explain away the clear religious import of the creche and the findings of the District Court that most observers understood the creche as both a symbol of Christian beliefs and a symbol of the city's support for those beliefs. See ante at 679-684; see also ante at 694 (O'CONNOR, J., concurring). Thus, although the Court concedes that the city's inclusion of the nativity scene plainly serves "to depict the origins" of Christmas as a "significant historical religious event," ante at 681, 680, and that the creche "is identified with one religious faith," ante at 685, we are nevertheless expected to believe that Pawtucket's use of the creche does not signal the city's support for the sectarian symbolism that the nativity scene evokes. The effect of the creche, of course, must be gauged not only by its inherent religious [p706] significance, but also by the overall setting in which it appears. But it blinks reality to claim, as the Court does, that by including such a distinctively religious object as the creche in its Christmas display, Pawtucket has done no more than make use of a "traditional" symbol of the holiday, and has thereby purged the creche of its religious content and conferred only an "incidental and indirect" benefit on religion. The Court's struggle to ignore the clear religious effect of the creche seems to me misguided for several reasons. In the first place, the city has positioned the creche in a central and highly visible location within the Hodgson Park display. The District Court's findings in this regard are unambiguous:
[D]espite the small amount of ground covered by the creche, viewers would not regard the creche as an insignificant part of the display. It is an almost life sized tableau marked off by a white picket fence. Furthermore, its location lends the creche significance. The creche faces the Roosevelt Avenue bus stops and access stairs where the bulk of the display is placed. Moreover, the creche is near two of the most enticing parts of the display for children -- Santa's house and the talking wishing well. Although the Court recognizes that one cannot see the creche from all possible vantage points, it is clear from the City's own photos that people standing at the two bus shelters and looking down at the display will see the creche centrally and prominently positioned.
525 F.Supp. at 1176-1177 (citations omitted; footnote omitted).
Moreover, the city has done nothing to disclaim government approval of the religious significance of the creche, to suggest that the creche represents only one religious symbol among many others that might be included in a seasonal display truly aimed at providing a wide catalog of ethnic and religious celebrations, or to disassociate itself from the religious content of the creche. In Abington School Dist. v. Schempp, 374 U.S. at 225, we noted that reading aloud [p707] from the Bible would be a permissible schoolroom exercise only if it was "presented objectively as part of a secular program of education" that would remove any message of governmental endorsement of religion. Similarly, when the Court of Appeals for the District of Columbia Circuit approved the inclusion of a creche as part of a national "Pageant of Peace" on federal parkland adjacent to the White House, it did so on the express condition that the Government would erect "explanatory plaques" disclaiming any sponsorship of religious beliefs associated with the creche. Allen v. Morton, 161 U.S.App.D.C. 239, 241-242, 495 F.2d 65, 67-68 (1973) (per curiam). In this case, by contrast, Pawtucket has made no effort whatever to provide a similar cautionary message.
Third, we have consistently acknowledged that an otherwise secular setting alone does not suffice to justify a governmental practice that has the effect of aiding religion. In Hunt v. McNair, 413 U.S. 734, 743 (1973), for instance, we observed that
[a]id normally may be thought to have a primary effect of advancing religion . . . when it [supports] a specifically religious activity in an otherwise substantially secular setting.
The demonstrably secular context of public education, therefore, did not save the challenged practice of school prayer in Engel or in Schempp. Similarly, in Tilton v. Richardson, 403 U.S. 672, 683 (1971), despite the generally secular thrust of the financing legislation under review, the Court unanimously struck down that aspect of the program which permitted church-related institutions eventually to assume total control over the use of buildings constructed with federal aid. [n12] [p708]
Finally, and most importantly, even in the context of Pawtucket's seasonal celebration, the creche retains a specifically Christian religious meaning. I refuse to accept the notion implicit in today's decision that non-Christians would find that the religious content of the creche is eliminated by the fact that it appears as part of the city's otherwise secular celebration of the Christmas holiday. The nativity scene is clearly distinct in its purpose and effect from the rest of the Hodgson Park display for the simple reason that it is the only one rooted in a biblical account of Christ's birth. It is the chief symbol of the characteristically Christian belief that a divine Savior was brought into the world and that the purpose of this miraculous birth was to illuminate a path toward salvation and redemption. [n13] For Christians, that path is exclusive, precious, and holy. But for those who do not share these beliefs, the symbolic reenactment of the birth of a divine being who has been miraculously incarnated as a man stands as a dramatic reminder of their differences with Christian faith. [n14] When government appears to sponsor such religiously [p709] inspired views, we cannot say that the practice is
"so separate and so indisputably marked off from the religious function," . . . that [it] may fairly be viewed as reflect[ing] a neutral posture toward religious institutions.
Nyquist, 413 U.S. at 782 (quoting Everson, 330 U.S. at 18). To be so excluded on religious grounds by one's elected government is an insult and an injury that, until today, could not be countenanced by the Establishment Clause.
Second. The Court also attempts to justify the creche by entertaining a beguilingly simple, yet faulty syllogism. The Court begins by noting that government may recognize Christmas Day as a public holiday; the Court then asserts that the creche is nothing more than a traditional element of Christmas celebrations; and it concludes that the inclusion of a creche as part of a government's annual Christmas celebration is constitutionally permissible. See ante at 680-683, 685-686; see also ante at 692-694 (O'CONNOR, J., concurring). The Court apparently believes that once it finds that the designation of Christmas as a public holiday is constitutionally acceptable, it is then free to conclude that virtually every form of governmental association with the celebration of the holiday is also constitutional. The vice of this dangerously superficial argument is that it overlooks the fact that the Christmas holiday in our national culture contains both secular and sectarian elements. [n15] To say that government may recognize the holiday's traditional, secular elements of [p710] gift-giving, public festivities, and community spirit, does not mean that government may indiscriminately embrace the distinctively sectarian aspects of the holiday. Indeed, in its eagerness to approve the creche, the Court has advanced a rationale so simplistic that it would appear to allow the Mayor of Pawtucket to participate in the celebration of a Christmas Mass, since this would be just another unobjectionable way for the city to "celebrate the holiday." As is demonstrated below, the Court's logic is fundamentally flawed both because it obscures the reason why public designation of Christmas Day as a holiday is constitutionally acceptable, and blurs the distinction between the secular aspects of Christmas and its distinctively religious character, as exemplified by the creche.
When government decides to recognize Christmas Day as a public holiday, it does no more than accommodate the calendar of public activities to the plain fact that many Americans will expect on that day to spend time visiting with their families, attending religious services, and perhaps enjoying some respite from pre-holiday activities. The Free Exercise Clause, of course, does not necessarily compel the government to provide this accommodation, but neither is the Establishment Clause offended by such a step. Cf. Zorach v. Clauson, 343 U.S. 306 (1952). Because it is clear that the celebration of Christmas has both secular and sectarian elements, it may well be that, by taking note of the holiday, the government is simply seeking to serve the same kinds of wholly secular goals -- for instance, promoting goodwill and a common day of rest -- that were found to justify Sunday Closing Laws in McGowan v. Maryland, 366 U.S. 420 (1961). [n16] If public officials go further and participate in the secular celebration [p711] of Christmas -- by, for example, decorating public places with such secular images as wreaths, garlands, or Santa Claus figures -- they move closer to the limits of their constitutional power, but nevertheless remain within the boundaries set by the Establishment Clause. But when those officials participate in or appear to endorse the distinctively religious elements of this otherwise secular event, they encroach upon First Amendment freedoms. For it is at that point that the government brings to the forefront the theological content of the holiday, and places the prestige, power, and financial support of a civil authority in the service of a particular faith.
The inclusion of a creche in Pawtucket's otherwise secular celebration of Christmas clearly violates these principles. Unlike such secular figures as Santa Claus, reindeer, and carolers, a nativity scene represents far more than a mere "traditional" symbol of Christmas. The essence of the creche's symbolic purpose and effect is to prompt the observer to experience a sense of simple awe and wonder appropriate to the contemplation of one of the central elements of Christian dogma -- that God sent His Son into the world to be a Messiah. [n17] Contrary to the Court's suggestion, the creche is far from a mere representation of a "particular historic religious event." Ante at 686. It is, instead, best understood as a mystical re-creation of an event that lies at the heart of Christian faith. [n18] To suggest, as the Court does, [p712] that such a symbol is merely "traditional," and therefore no different from Santa's house or reindeer is not only offensive to those for whom the creche has profound significance [n19] but insulting to those who insist, for religious or personal reasons, that the story of Christ is in no sense a part of "history" nor an unavoidable element of our national "heritage." [n20]
For these reasons, the creche in this context simply cannot be viewed as playing the same role that an ordinary museum display does. See ante at 676-677, 683, 685. The Court seems to assume that prohibiting Pawtucket from displaying a creche would be tantamount to prohibiting a state college from including the Bible or Milton's Paradise Lost in a course on English literature. But in those cases, the religiously inspired materials are being considered solely as literature. The purpose is plainly not to single out the particular religious beliefs that may have inspired the authors, but to see in these writings the outlines of a larger imaginative universe shared with other forms of literary expression. [n21] The same may be said of a course devoted to the study of art; when the course turns to Gothic architecture, the emphasis is not on the religious beliefs which the cathedrals exalt, but rather upon the "aesthetic consequences of [such religious] thought." [n22] [p713]
In this case, by contrast, the creche plays no comparable secular role. Unlike the poetry of Paradise Lost which students in a literature course will seek to appreciate primarily for esthetic or historical reasons, the angels, shepherds, Magi, and infant of Pawtucket's nativity scene can only be viewed as symbols of a particular set of religious beliefs. It would be another matter if the creche were displayed in a museum setting, in the company of other religiously inspired artifacts, as an example, among many, of the symbolic representation of religious myths. In that setting, we would have objective guarantees that the creche could not suggest that a particular faith had been singled out for public favor and recognition. The effect of Pawtucket's creche, however, is not confined by any of these limiting attributes. In the absence of any other religious symbols or of any neutral disclaimer, the inescapable effect of the creche will be to remind the average observer of the religious roots of the celebration he is witnessing and to call to mind the scriptural message that the nativity symbolizes. The fact that Pawtucket has gone to the trouble of making such an elaborate public celebration and of including a creche in that otherwise secular setting inevitably serves to reinforce the sense that the city means to express solidarity with the Christian message of the creche and to dismiss other faiths as unworthy of similar attention and support.
Although the Court's relaxed application of the Lemon test to Pawtucket's creche is regrettable, it is at least understandable and properly limited to the particular facts of this case. The Court's opinion, however, also sounds a broader [p714] and more troubling theme. Invoking the celebration of Thanksgiving as a public holiday, the legend "In God We Trust" on our coins, and the proclamation "God save the United States and this Honorable Court" at the opening of judicial sessions, the Court asserts, without explanation, that Pawtucket's inclusion of a creche in its annual Christmas display poses no more of a threat to Establishment Clause values than these other official "acknowledgments" of religion. Ante at 674-678, 685-686; see also ante at 692-693 (O'CONNOR, J., concurring).
Intuition tells us that some official "acknowledgment" is inevitable in a religious society if government is not to adopt a stilted indifference to the religious life of the people. See Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 232 (1948) (Jackson, J., concurring). It is equally true, however, that, if government is to remain scrupulously neutral in matters of religious conscience, as our Constitution requires, then it must avoid those overly broad acknowledgments of religious practices that may imply governmental favoritism toward one set of religious beliefs. This does not mean, of course, that public officials may not take account, when necessary, of the separate existence and significance of the religious institutions and practices in the society they govern. Should government choose to incorporate some arguably religious element into its public ceremonies, that acknowledgment must be impartial; it must not tend to promote one faith or handicap another; and it should not sponsor religion generally over nonreligion. Thus, in a series of decisions concerned with such acknowledgments, we have repeatedly held that any active form of public acknowledgment of religion indicating sponsorship or endorsement is forbidden. E.g., Stone v. Graham, 449 U.S. 39 (1980) (posting of Ten Commandments in schoolroom); 333 U.S. 203, 232 (1948) (Jackson, J., concurring). It is equally true, however, that, if government is to remain scrupulously neutral in matters of religious conscience, as our Constitution requires, then it must avoid those overly broad acknowledgments of religious practices that may imply governmental favoritism toward one set of religious beliefs. This does not mean, of course, that public officials may not take account, when necessary, of the separate existence and significance of the religious institutions and practices in the society they govern. Should government choose to incorporate some arguably religious element into its public ceremonies, that acknowledgment must be impartial; it must not tend to promote one faith or handicap another; and it should not sponsor religion generally over nonreligion. Thus, in a series of decisions concerned with such acknowledgments, we have repeatedly held that any active form of public acknowledgment of religion indicating sponsorship or endorsement is forbidden. E.g., Stone v. Graham, 449 U.S. 39 (1980) (posting of Ten Commandments in schoolroom); Epperson v. Arkansas, 393 U.S. 97"]393 U.S. 97 (1968) (prohibition on teaching principles of Darwinian evolution); 393 U.S. 97 (1968) (prohibition on teaching principles of Darwinian evolution); Abington School Dist. v. Schempp, 374 U.S. 203"]374 U.S. 203 (1963) (mandatory Bible-reading at beginning of [p715] school day); 374 U.S. 203 (1963) (mandatory Bible-reading at beginning of [p715] school day); Engel v. Vitale, 370 U.S. 421 (1962) (mandatory reading of state-composed prayer); Illinois ex rel. McCollum v. Board of Education, supra, (use of public school facilities for religious instruction).
Despite this body of case law, the Court has never comprehensively addressed the extent to which government may acknowledge religion by, for example, incorporating religious references into public ceremonies and proclamations, and I do not presume to offer a comprehensive approach. Nevertheless, it appears from our prior decisions that at least three principles -- tracing the narrow channels which government acknowledgments must follow to satisfy the Establishment Clause -- may be identified. First, although the government may not be compelled to do so by the Free Exercise Clause, it may, consistently with the Establishment Clause, act to accommodate to some extent the opportunities of individuals to practice their religion. See Schempp, supra, at 296-299 (BRENNAN, J., concurring). That is the essential meaning, I submit, of this Court's decision in Zorach v. Clauson, 343 U.S. 306 (1952), finding that government does not violate the Establishment Clause when it simply chooses to "close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction." Id. at 314. And for me, that principle would justify government's decision to declare December 25th a public holiday. See supra at 710.
Second, our cases recognize that, while a particular governmental practice may have derived from religious motivations and retain certain religious connotations, it is nonetheless permissible for the government to pursue the practice when it is continued today solely for secular reasons. As this Court noted with reference to Sunday Closing Laws in McGowan v. Maryland, 366 U.S. 420 (1961), the mere fact that a governmental practice coincides to some extent with certain religious beliefs does not render it unconstitutional. Thanksgiving Day, in my view, fits easily within this principle, [p716] for, despite its religious antecedents, [n23] the current practice of celebrating Thanksgiving is unquestionably secular and patriotic. We all may gather with our families on that day to give thanks both for personal and national good fortune, but we are free, given the secular character of the holiday, to address that gratitude either to a divine beneficence or to such mundane sources as good luck or the country's abundant natural wealth.
Finally, we have noted that government cannot be completely prohibited from recognizing in its public actions the religious beliefs and practices of the American people as an aspect of our national history and culture. See Engel v. Vitale, supra, at 435, n. 21; Schempp, supra, at 300-304 (BRENNAN, J., concurring). While I remain uncertain about these questions, I would suggest that such practices as the designation of "In God We Trust" as our national motto, or the references to God contained in the Pledge of Allegiance to the flag can best be understood, in Dean Rostow's apt phrase, as a form a "ceremonial deism," [n24] protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content. See Marsh v. Chambers, 463 U.S. at 818 (BRENNAN, J., dissenting). [p717] Moreover, these references are uniquely suited to serve such wholly secular purposes as solemnizing public occasions, or inspiring commitment to meet some national challenge in a manner that simply could not be fully served in our culture if government were limited to purely nonreligious phrases. Cf. Schempp, supra, at 265 (BRENNAN, J., concurring). The practices by which the government has long acknowledged religion are therefore probably necessary to serve certain secular functions, and that necessity, coupled with their long history, gives those practices an essentially secular meaning.
The creche fits none of these categories. Inclusion of the creche is not necessary to accommodate individual religious expression. This is plainly not a case in which individual residents of Pawtucket have claimed the right to place a creche as part of a wholly private display on public land. Cf. Widmar v. Vincent, 454 U.S. 263 (1981); McCreary v. Stone, 575 F.Supp. 1112 (SDNY 1983). Nor is the inclusion of the creche necessary to serve wholly secular goals; it is clear that the city's secular purposes of celebrating the Christmas holiday and promoting retail commerce can be fully served without the creche. Cf. McGowan v. Maryland and supra at 699-700. And the creche, because of its unique association with Christianity, is clearly more sectarian than those references to God that we accept in ceremonial phrases or in other contexts that assure neutrality. The religious works on display at the National Gallery, Presidential references to God during an Inaugural Address, or the national motto present no risk of establishing religion. To be sure, our understanding of these expressions may begin in contemplation of some religious element, but it does not end there. Their message is dominantly secular. In contrast, the message of the creche begins and ends with reverence for a particular image of the divine.
By insisting that such a distinctively sectarian message is merely an unobjectionable part of our "religious heritage," see ante at 676, 685-686, the Court takes a long step backwards [p718] to the days when Justice Brewer could arrogantly declare for the Court that "this is a Christian nation." Church of Holy Trinity v. United States, 143 U.S. 457, 471 (1892). Those days, I had thought, were forever put behind us by the Court's decision in Engel v. Vitale, in which we rejected a similar argument advanced by the State of New York that its Regent's Prayer was simply an acceptable part of our "spiritual heritage." 370 U.S. at 425.
The American historical experience concerning the public celebration of Christmas, if carefully examined, provides no support for the Court's decision. The opening sections of the Court's opinion, while seeking to rely on historical evidence, do no more than recognize the obvious: because of the strong religious currents that run through our history, an inflexible or absolutistic enforcement of the Establishment Clause would be both imprudent and impossible. See ante at 673-678. This observation is at once uncontroversial and unilluminating. Simply enumerating the various ways in which the Federal Government has recognized the vital role religion plays in our society does nothing to help decide the question presented in this case.
Indeed, the Court's approach suggests a fundamental misapprehension of the proper uses of history in constitutional interpretation. Certainly, our decisions reflect the fact that an awareness of historical practice often can provide a useful guide in interpreting the abstract language of the Establishment Clause. See, e.g., Walz v. Tax Comm'n, 397 U.S. at 676-680; McGowan v. Maryland, 366 U.S. at 431-445; Engel, 370 U.S. at 425-429. But historical acceptance of a particular practice alone is never sufficient to justify a challenged governmental action, since, as the Court has rightly observed,
no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it.
Walz, supra, at 678. See also Committee for [p719] Public Education & Religious Liberty v. Nyquist, 413 U.S. at 792. Attention to the details of history should not blind us to the cardinal purposes of the Establishment Clause, nor limit our central inquiry in these cases -- whether the challenged practices "threaten those consequences which the Framers deeply feared." Abington School Dist. v. Schempp, 374 U.S. at 236 (BRENNAN, J., concurring). In recognition of this fact, the Court has, until today, consistently limited its historical inquiry to the particular practice under review.
In McGowan, for instance, the Court carefully canvassed the entire history of Sunday Closing Laws from the colonial period up to modern times. On the basis of this analysis, we concluded that, while such laws were rooted in religious motivations, the current purpose was to serve the wholly secular goal of providing a uniform day of rest for all citizens. 366 U.S. at 445. Our inquiry in Walz was similarly confined to the special history of the practice under review. There the Court found a pattern of "undeviating acceptance" over the entire course of the Nation's history of according property tax exemptions to religious organizations, a pattern which supported our finding that the practice did not violate the Religion Clauses. Finally, where direct inquiry into the Framers' intent reveals that the First Amendment was not understood to prohibit a particular practice, we have found such an understanding compelling. Thus, in Marsh v. Chambers, after marshaling the historical evidence which indicated that the First Congress had authorized the appointment of paid chaplains for its own proceedings only three days before it reached agreement on the final wording of the Bill of Rights, the Court concluded on the basis of this "unique history" that the modern-day practice of opening legislative sessions with prayer was constitutional. 463 U.S. at 787-791.
Although invoking these decisions in support of its result, the Court wholly fails to discuss the history of the public celebration of Christmas or the use of publicly displayed nativity scenes. The Court, instead, simply asserts, without any historical analysis or support whatsoever, that the now-familiar [p720] celebration of Christmas springs from an unbroken history of acknowledgment "by the people, by the Executive Branch, by the Congress, and the courts for 2 centuries. . . ." Ante at 686. The Court's complete failure to offer any explanation of its assertion is perhaps understandable, however, because the historical record points in precisely the opposite direction. Two features of this history are worth noting. First, at the time of the adoption of the Constitution and the Bill of Rights, there was no settled pattern of celebrating Christmas, either as a purely religious holiday or as a public event. Second, the historical evidence, such as it is, offers no uniform pattern of widespread acceptance of the holiday, and indeed suggests that the development of Christmas as a public holiday is a comparatively recent phenomenon. [n25]
The intent of the Framers with respect to the public display of nativity scenes is virtually impossible to discern, primarily because the widespread celebration of Christmas did not emerge in its present form until well into the 19th century. Carrying a well-defined Puritan hostility to the celebration of Christ's birth with them to the New World, the founders of the Massachusetts Bay Colony pursued a vigilant policy of opposition to any public celebration of the holiday. [p721] To the Puritans, the celebration of Christmas represented a "Popish" practice lacking any foundation in Scripture. This opposition took legal form in 1659 when the Massachusetts Bay Colony made the observance of Christmas Day, "by abstinence from labor, feasting, or any other way," an offense punishable by fine. Although the Colony eventually repealed this ban in 1681, the Puritan objection remained firm. [n26]
During the 18th century, sectarian division over the celebration of the holiday continued. As increasing numbers of members of the Anglican and the Dutch and German Reformed Churches arrived, the practice of celebrating Christmas as a purely religious holiday grew. But denominational differences continued to dictate differences in attitude toward the holiday. American Anglicans, who carried with them the Church of England's acceptance of the holiday, Roman Catholics, and various German groups all made the celebration of Christmas a vital part of their religious life. By contrast, many nonconforming Protestant groups, including the Presbyterians, Congregationalists, Baptists, and Methodists, continued to regard the holiday with suspicion and antagonism well into the 19th century. [n27] This pattern of sectarian [p722] division concerning the holiday suggests that for the Framers of the Establishment Clause, who were acutely sensitive to such sectarian controversies, no single view of how government should approach the celebration of Christmas would be possible.
Many of the same religious sects that were devotedly opposed to the celebration of Christmas on purely religious grounds were also some of the most vocal and dedicated foes of established religions in the period just prior to the Revolutionary War. [n28] The Puritans, and later the Presbyterians, Baptists, and Methodists, generally associated the celebration of Christmas with the elaborate and, in their view, sacreligious celebration of the holiday by the Church of England, and also with, for them, the more sinister theology of "Popery." [n29] In the eyes of these dissenting religious sects, therefore, the groups most closely associated with established [p723] religion -- the Churches of England and of Rome -- were also most closely linked to the profane practice of publicly celebrating Christmas. For those who authored the Bill of Rights, it seems reasonable to suppose that the public celebration of Christmas would have been regarded as at least a sensitive matter, if not deeply controversial. As we have repeatedly observed, the Religion Clauses were intended to ensure a benign regime of competitive disorder among all denominations, so that each sect was free to vie against the others for the allegiance of its followers without state interference. See Everson v. Board of Education, 330 U.S. 1 (1947). The historical record, contrary to the Court's uninformed assumption, suggests that at the very least conflicting views toward the celebration of Christmas were an important element of that competition at the time of the adoption of the Constitution.
Furthermore, unlike the religious tax exemptions upheld in Walz, the public display of nativity scenes as part of governmental celebrations of Christmas does not come to us supported by an unbroken history of widespread acceptance. It was not until 1836 that a State first granted legal recognition to Christmas as a public holiday. This was followed in the period between 1845 and 1865, by 28 jurisdictions which included Christmas Day as a legal holiday. [n30] Congress did not follow the States' lead until 1870, when it established December 25th, along with the Fourth of July, New Year's Day, and Thanksgiving, as a legal holiday in the District of Columbia. [n31] This pattern of legal recognition tells us only that [p724] public acceptance of the holiday was gradual and that the practice -- in stark contrast to the record presented in either Walz or Marsh -- did not take on the character of a widely recognized holiday until the middle of the 19th century.
The historical evidence with respect to public financing and support for governmental displays of nativity scenes is even more difficult to gauge. What is known suggests that German immigrants who settled in Pennsylvania early in the 18th century, presumably drawing upon European traditions, were probably the first to introduce nativity scenes to the American celebration of Christmas. [n32] It also appears likely that this practice expanded as more Roman Catholic immigrants settled during the 19th century. From these modest beginnings, the familiar creche scene developed and gained wider recognition by the late 19th century. [n33] It is simply impossible to tell, however, whether the practice ever gained widespread acceptance, much less official endorsement, until the 20th century.
In sum, there is no evidence whatsoever that the Framers would have expressly approved a federal celebration of the Christmas holiday including public displays of a nativity [p725] scene; accordingly, the Court's repeated invocation of the decision in Marsh, see ante at 673-674, 682, 685-686, is not only baffling, it is utterly irrelevant. Nor is there any suggestion that publicly financed and supported displays of Christmas creches are supported by a record of widespread, undeviating acceptance that extends throughout our history. Therefore, our prior decisions which relied upon concrete, specific historical evidence to support a particular practice simply have no bearing on the question presented in this case. Contrary to today's careless decision, those prior cases have all recognized that the "illumination" provided by history must always be focused on the particular practice at issue in a given case. Without that guiding principle and the intellectual discipline it imposes, the Court is at sea, free to select random elements of America's varied history solely to suit the views of five Members of this Court.
Under our constitutional scheme, the role of safeguarding our "religious heritage" and of promoting religious beliefs is reserved as the exclusive prerogative of our Nation's churches, religious institutions, and spiritual leaders. Because the Framers of the Establishment Clause understood that "religion is too personal, too sacred, too holy to permit its ‘unhallowed perversion' by civil [authorities]," Engel v. Vitale, 370 U.S. at 432, the Clause demands that government play no role in this effort. The Court today brushes aside these concerns by insisting that Pawtucket has done nothing more than include a "traditional" symbol of Christmas in its celebration of this national holiday, thereby muting the religious content of the creche. Ante at 685. But the city's action should be recognized for what it is: a coercive, though perhaps small, step toward establishing the sectarian preferences of the majority at the expense of the minority, accomplished by placing public facilities and funds in support of the religious symbolism and theological tidings that the [p726] creche conveys. As Justice Frankfurter, writing in McGowan v. Maryland, observed, the Establishment Clause
withdr[aws] from the sphere of legitimate legislative concern and competence a specific, but comprehensive, area of human conduct: man's belief or disbelief in the verity of some transcendental idea and man's expression in action of that belief or disbelief.
366 U.S. at 465-466 (separate opinion). That the Constitution sets this realm of thought and feeling apart from the pressures and antagonisms of government is one of its supreme achievements. Regrettably, the Court today tarnishes that achievement.
1. For instance, nothing in the Court's opinion suggests that the Court of Appeals for the Third Circuit erred when it found that a city-financed platform and cross used by Pope John Paul II to celebrate Mass and deliver a sermon during his 1979 visit to Philadelphia was an unconstitutional expenditure of city funds. Gifillan v. City of Philadelphia, 637 F.2d 924 (1980). Nor does the Court provide any basis for disputing the holding of the Court of Appeals for the Eleventh Circuit that the erection and maintenance of an illuminated Latin cross on state park property violates the Establishment Clause. American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098 (1983). See also Fox v. City of Los Angeles, 22 Cal.3d 792, 587 P.2d 663 (1978); Lowe v. City of Eugene, 254 Ore. 539, 463 P.2d 360 (1969). And given the Court's focus upon the otherwise secular setting of the Pawtucket creche, it remains uncertain whether, absent such secular symbols as Santa Claus' house, a talking wishing well, and cutout clowns and bears, a similar nativity scene would pass muster under the Court's standard. Cf. McCreary v. Stone, 575 F.Supp. 1112 (SDNY 1983) (holding that village did not violate Establishment Clause by refusing to permit a private group to erect a creche in a public park).
2. Although I agree with the Court that no single formula can ever fully capture the analysis that may be necessary to resolve difficult Establishment Clause problems, see n. 11, infra, I fail to understand the Court's insistence upon referring to the settled test set forth in Lemon as simply one path that may be followed or not at the Court's option. See ante at 679. The Court's citation of Tilton v. Richardson, 403 U.S. 672 (1971), and Committee for Public Education Religious Liberty v. Nyquist, 413 U.S. 756 (1973), to support this assertion is meaningless, because both of those decisions applied the three-prong Lemon test. Indeed, ever since its initial formulation, the Lemon test has been consistently looked upon as the fundamental tool of Establishment Clause analysis. In Nyquist, the Court described the test in mandatory terms:
Taken together, [our] decisions dictate that to pass muster under the Establishment Clause the law in question [must satisfy the three elements of the Lemon test].
413 U.S. at 772-773. And just last Term, in Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982), THE CHIEF JUSTICE, speaking for the Court, wrote that
[t]his Court has consistently held that a statute must satisfy three criteria [as set forth in Lemon] to pass muster under the Establishment Clause.