|Lynch v. Donnelly
[ Burger ]
[ O'Connor ]
[ Brennan ]
[ Blackmun ]
Lynch v. Donnelly
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
Id. at 123. See also Stone v. Graham, 449 U.S. 39, 40-41 (1980) (per curiam); Wolman v. Walter, 433 U.S. 229, 236-236 (1977). In addition, the Court's citation of Larson v. Valente, 456 U.S. 228 (1982), also fails to support the Court's assertion. In Larson, we first reviewed a state law granting a denominational preference under a "strict scrutiny" analysis, id. at 246-251, but then concluded by finding the statute unconstitutional under the Lemon analysis as well. Id. at 251-255. Thus, despite the Court's efforts to evade the point, the fact remains that Marsh v. Chambers, 463 U.S. 783 (1983), is the only case in which the Court has not applied either the Lemon or a "strict scrutiny" analysis. I can only conclude that, with today's unsupported assertion, the Court hopes to provide a belated excuse for the failure in Marsh to address the analysis of the Lemon test.
3. See Larkin v. Grendel's Den, Inc., supra, at 123; Widmar v. Vincent, 454 U.S. 263, 271 (1981); Wolman v. Walter, 433 U.S. 229, 236 (1977); Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970). As JUSTICE O'CONNOR's concurring opinion rightly observes, this test provides a helpful analytical tool in considering the central question posed in this case -- whether Pawtucket has run afoul of the Establishment Clause by endorsing religion through its display of the creche. Ante at 690.
4. I find it puzzling, to say the least, that the Court today should find "irrelevant," ante at 681, n. 7, the fact that the city's secular objectives can be readily and fully accomplished without including the creche, since only last Term, in Larkin v. Grendel's Den, Inc., 459 U.S. at 123-124, the Court relied upon precisely the same point in striking down a Massachusetts statute which vested in church governing bodies the power to veto applications for liquor licenses. It seems the Court is willing to alter its analysis from Term to Term in order to suit its preferred results.
5. Several representatives of Pawtucket's business community testified that, although the overall Christmas display played an important role in promoting downtown holiday trade, the display would serve this purpose equally well even if the creche were removed. App. 133, 135, 139-140. The Mayor also testified that, if the nativity scene had to be eliminated, the city would continue to erect the annual display without it. Id. at 115.
6. The District Court also admitted into evidence, without objection from petitioners, a considerable amount of correspondence received by Mayor Lynch in support of maintaining the creche in the city's Christmas display. One such letter, which appears to be representative of the views of many, congratulates the Mayor on his efforts "to keep ‘Christ' in Christmas. . . ." App. 161. For the District Court's findings concerning the meaning of these letters, see 525 F.Supp. 1150, 1162 (RI 1981) ("Overall the tenor of the correspondence is that the lawsuit represents an attack on the presence of religion as part of the community's life, an attempt to deny the majority the ability to express publically its beliefs in a desired and traditionally accepted way"). Furthermore, as the District Court found,
the City has accepted and implemented the view of its predominantly Christian citizens that it is a "good thing" to have a creche in a Christmas display . . . because it is a good thing to "keep Christ in Christmas."
Id. at 1173.
7. In this regard, the views expressed by the California Supreme Court in considering a similar issue are particularly relevant:
When a city so openly promotes the religious meaning of one religion's holidays, the benefit reaped by that religion and the disadvantage suffered by other religions is obvious. Those persons who do not share those holidays are relegated to the status of outsiders by their own government; those persons who do observe those holidays can take pleasure in seeing the symbol of their belief given official sanction and special status.
Fox v. City of Los Angeles, 22 Cal.3d at 803, 687 P.2d at 670 (striking down as unconstitutional the erection of an illuminated cross in front of city hall). See also Lowe v. City of Eugene, 264 Ore. at 644-546, 463 P.2d at 363.
8. See App. 104.
9. The suggestion in Mueller v. Allen, 463 U.S. 388, 403-404, n. 11 (1983), relied upon by the Court today, see ante at 684; ante at 689 (O'CONNOR, J., concurring), that inquiry into potential political divisiveness is unnecessary absent direct subsidies to church-sponsored schools or colleges, derives from a distorted reading of our prior cases. Simply because the Court in Lemon -- a case involving such subsidies -- inquired into potential divisiveness while distinguishing Everson and Allen -- cases not involving such subsidies -- does not provide any authority for the proposition that the Court in Lemon meant to confine the divisiveness inquiry only to cases factually identical to Lemon itself. Indeed, in Walz, the Court considered the question of divisiveness in the context of state tax exemptions to all religious institutions. I agree, however, with JUSTICE O'CONNOR's helpful suggestion that, while political divisiveness is "an evil addressed by the Establishment Clause," the ultimate inquiry must always focus on "the character of the government activity that might cause such divisiveness." Ante at 689. Having said that, I should also emphasize that I disagree fundamentally with JUSTICE O'CONNOR's apparent conclusion that Pawtucket's inclusion of the creche is not the kind of governmental act that may engender sharp division along religious lines. The contrary is demonstrated by the history of this case.
10. This and similar issues relating to governmental endorsement of religious symbols has engendered continuing controversy which has reached the courts on many occasions. See, e.g., American Civil Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098 (CA11 1983); Florey v. Sioux Falls School Dist., 619 F.2d 1311 (CA8 1980); Allen v. Morton, 161 U.S.App.D.C. 239, 495 F.2d 65 (1973); Allen v. Hickel, 138 U.S.App.D.C. 31, 424 F.2d 944 (1970); McCreary v. Stone, 575 F.Supp. 1112 (SDNY 1983); Citizens Concerned for Separation of Church and State v. Denver, 508 F.Supp. 823 (Colo.1981); Russell v. Mamaroneck, 440 F.Supp. 607 (SDNY 1977); Lawrence v. Buchmueller, 40 Misc.2d 300, 243 N.Y.S.2d 87 (Sup.Ct.1963). Given the narrowness of the Court's decision today, see supra at 694-695, and n. 1, the potential for controversy is unlikely to abate.
11. The Court makes only a half-hearted attempt, see ante at 680-681, 682-683, to grapple with the fact that Judge Pettine's detailed findings may not be overturned unless they are shown to be "clearly erroneous." Fed.Rule Civ.Proc. 52(a). See Pullman-Standard v. Swint, 456 U.S. 273, 285-290 (1982). In my view, petitioners have made no such showing in this case. JUSTICE O'CONNOR's concurring opinion properly accords greater respect to the District Court's findings, but I am at a loss to understand how the court's specific and well-supported finding that the city was understood to have placed its stamp of approval on the sectarian content of the creche can, in the face of the Lemon test, be dismissed as simply an "error as a matter of law." Ante at 694.
Moreover, although the Court brushes the point aside with little explanation, see ante at 687, n. 13, the Lemon decision's three-prong analysis is not the only available standard of review. As the Court of Appeals recognized, the "strict scrutiny" analysis adopted in Larson v. Valente, 456 U.S. at 244-246, addresses situations in which a governmental policy or practice grants official preference to one religious denomination over another. 691 F.2d 1029, 1034-1035 (CA1 1982). While I am inclined to agree with the Court of Appeals that Pawtucket's practice fails this test, it is not necessary that I address this point in view of my conclusion that the city's inclusion of the creche violates the standards fixed in Lemon.
Furthermore, I continue to believe that the test I set forth in Schempp is an appropriate means of determining whether rights guaranteed by the Establishment Clause have been infringed. In my view,
those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice
must be struck down. 374 U.S. at 294-295. In the present case, I particularly believe the third element of this test is not met, since all of Pawtucket's governmental goals -- celebrating the holiday season and promoting commerce -- can be fully realized without the use of the creche by employing such wholly secular means as Santa Claus, reindeer, and cutout figures. See supra at 699-700.
12. Indeed, in the aid-to-sectarian-schools cases, the state financing schemes under review almost always require us to focus on a specific element that may violate the Establishment Clause, even though it is a part of a complex and otherwise secular statutory framework. See, e.g., Meek v. Pittenger, 421 U.S. 349 (1975); Wolman v. Walter, 433 U.S. 229 (1977). See also Committee for Public Education & Religious Liberty v. Regan, 444 U.S. 646, 662 (1980) (BLACKMUN, J., dissenting).
13. See R. Brown, The Birth of the Messiah (1977); W. Auld, Christmas Traditions (1931); A. McArthur, The Evolution of the Christian Year (1953).
14. For Christians, of course, the essential message of the nativity is that God became incarnate in the person of Christ. But just as fundamental to Jewish thought is the belief in the "non-incarnation of God, . . . [t]he God in whom [Jews] believe, to whom [Jews] are pledged, does not unite with human substance on earth." M. Buber, Israel and the World (1948) (reprinted in F. Talmage, Disputation and Dialogue: Readings in the Jewish-Christian Encounter 281-282 (1975)) (emphasis deleted). This distinction, according to Buber, "constitute[s] the ultimate division between Judaism and Christianity." Id. at 281. See also R. Reuther, Faith and Fratricide 246 (1974).
Similarly, those who follow the tenets of Unitarianism might well find Pawtucket's support for the symbolism of the creche, which highlights the Trinitarian tradition in Christian faith, to be an affront to their belief in a single divine being. See J. Williams, What Americans Believe and How They Worship 316-317 (3d ed.1969). See also C. Olmstead, History of Religion in the United States 296-299 (1960).
15. Both the District Court and the Court of Appeals recognized that Christmas comprises both secular and sectarian elements, and that this distinction is of constitutional importance. See 525 F.Supp. at 1163-1164; 691 F.2d at 1032-1033; id. at 1035-1037 (Bownes, J., concurring). In addition, many observers have explained that historically the Christmas celebration derives both from traditional, folk elements such as gift-giving and winter seasonal celebrations, as well as from Christian religious elements. See, e.g., J. Barnett, The American Christmas, A Study in National Culture 9-14 (1954) (hereafter Barnett); R. Meyers, Celebrations: The Complete Book of American Holidays 309-344 (1972); B. Rosenthal & N. Rosenthal, Christmas 14-15 (1980).
16. It is worth noting that Christmas shares the list of federal holidays with such patently secular, patriotic holidays as the Fourth of July, Memorial Day, Washington's Birthday, Labor Day, and Veterans Day. See 5 U.S.C. § 6103(a). We may reasonably infer from the distinctly secular character of the company that Christmas keeps on this list that it too is included for essentially secular reasons.
17. See W. Auld, Christmas Traditions (1931); A. McArthur, The Evolution of the Christian Year (1953).
18. As one commentator has observed:
Today, of course, it is admitted even by Catholic exegetes that [the Biblical stories recounting Christ's birth] are a collection of largely uncertain, mutually contradictory, strongly legendary and ultimately theologically motivated narratives, with a character of their own. Unlike the rest of Jesus' life, there are dream happenings here and angels constantly enter on the scene and leave it -- as heavenly messengers of God announcing important events.
H. Kung, On Being A Christian 451 (E. Quinn trans., 1976) (footnote omitted). See also R. Brown, The Birth of the Messiah 25-41 (1977); Elliott, The Birth and Background of Jesus of Nazareth, 28 History Today 773, 774-780 (1978).
19. Many Christian commentators have voiced strong objections to what they consider to be the debasement and trivialization of Christmas through too close a connection with commercial and public celebrations. See, e.g., Kelley, Beyond Separation of Church and State, 5 J. Church & State 181 (1963). See generally Barnett 55-57.
20. See A. Stokes & L. Pfeffer, Church and State in the United States 383 (rev. ed.1964); R. Morgan, The Supreme Court and Religion 126 (1972); Barnett 68 (discussing opposition by Jews and other non-Christian religious groups to public celebrations of Christmas). See also Talmage, supra, n. 14.
21. See N. Frye, The Secular Scripture 14-15 (1976).
22. O. von Simson, The Gothic Cathedral 27 (1956). See also E. Panofsky Meaning in the Visual Arts (1974). Compare Justice Jackson's explanation of his view that the study of religiously inspired material can, in the correct setting, be made a part of a secular educational program:
[m]usic without sacred music, architecture minus the cathedral, or painting without the scriptural themes would be eccentric and incomplete, even from a secular point of view.
Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 236 (1948) (concurring opinion).
23. The constitutional problems posed by the religious antecedents of the early Thanksgiving celebrations were well recognized by Thomas Jefferson. Refusing on Establishment Clause grounds to declare national days of thanksgiving or fasting, Jefferson explained:
I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, disciplines, or exercises. . . . [I]t is only proposed that I should recommend, not prescribe, a day of fasting and prayer. . . . [But] I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrines. . . . Fasting and prayer are religious exercises; the enjoining them an act of discipline.
11 Jefferson's Writings 428-430 (1904) (emphasis deleted). See generally L. Pfeffer, Church, State and Freedom 266 (1967).
24. Sutherland, Book Review, 40 Ind.L.J. 83, 86 (1964) (quoting Dean Rostow's 1962 Meiklejohn Lecture delivered at Brown University).
25. The Court's insistence upon pursuing this vague historical analysis is especially baffling since even the petitioners and their supporting amici concede that no historical evidence equivalent to that relied upon in Marsh, McGowan, or Walz supports publicly sponsored Christmas displays. At oral argument, counsel for petitioners was asked whether there is "anything we can refer to to let us know how long it has been the practice in this country for public bodies to have nativity scenes displayed?" Counsel responded:
Specifically, I cannot. . . . The recognition of Christmas [as a public holiday] began in the middle part of the last century . . . but specifically with respect to the use of the nativity scene, we have been unable to locate that data.
Tr. of Oral Arg. 8.
In addition, the Solicitor General, appearing as amicus in support of petitioners, was asked: "Do we have . . . evidence [of the intent of the Framers] here with respect to the display of a nativity scene?" He responded: "Not with that degree of specificity." Id. at 22-23.
26. See S. Cobb, The Rise of Religious Liberty in America 209 (rev. ed.1970). For an example of this notorious Puritan antipathy to the holiday, consider the remarks of Judge Sewell, a Puritan, who in 1685 expressed his concerns about the influence of public celebration of Christmas:
Some, somehow observe the day, but are vexed, I believe, that the Body of the People Profane it; and, blessed be God, no Authority yet to compel them to keep it.
Quoted in Barnett 3.
27. See generally Barnett 4-6, 21-22; Sweet, Christmas in American History, 22 Chi.Theol.Sem.Register 12, 14 (Nov.1932); R. Meyers, Celebrations: The Complete Book of American Holidays 314-315 (1972). Some indication of this denominational opposition to the religious celebration of Christmas can be gleaned from the following account of Christmas services in the New York Daily Times for December 26, 1855:
The churches of the Presbyterians, Baptists and Methodists were not open on Dec. 25 except where some Mission Schools had a celebration. They do not accept the day as a Holy One, but the Episcopalian, Catholic and German Churches were all open. Inside they were decked with evergreens.
Quoted in Barnett 8.
In addition, consider the account written in 1874 of Henry Ward Beecher, a Congregationalist, describing his New England childhood:
To me, Christmas is a foreign day, and I shall die so. When I was a boy, I wondered what Christmas was. I knew there was such a time, because we had an Episcopal church in our town and I saw them dressing it with evergreens. . . . A little later, I understood it was a Romish institution, kept up by the Romish Church. Brought up in the strictest state of New England, brought up in the most literal style of worship . . . I passed all my youth without any knowledge of Christmas, and so I have no associations with the day.
Quoted in Meyers, supra n. 15, at 315-316.
28. The role of these religious groups in the struggle for disestablishment and their place in the history of the Establishment Clause have already been chronicled at some length in our cases, and therefore I will not repeat that history here. See Everson v. Board of Education, 330 U.S. 1, 9-15 (1947); Engel v. Vitale, 370 U.S. 421, 428, and n. 10 (1962); Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. at 770, and n. 28. For more comprehensive discussions of the efforts of these denominations to bring about disestablishment, see S. Cobb, The Rise of Religious Liberty in America (rev. ed.1970); B. Bailyn, The Ideological Origins of the American Revolution 257-263 (1967); W. McLoughlin, New England Dissent: 1630-1833 (1971); L. Pfeffer, Church, State and Freedom (1967).
29. See Barnett 2-6.
30. For a compilation of these developments, see id. at 19-20.
31. Ch. 167, 16 Stat. 168. There is no suggestion in the brief congressional discussion concerning the decision to declare Christmas Day a public holiday in the District of Columbia that Congress meant to do anything more than to put the District on equal footing with the many States that had declared those days public holidays by that time. See Cong.Globe, 41st Cong., 2d Sess., 4805 (1870).
Significantly, it was not until 1885 that Congress provided holiday payment for federal employees on December 25. See J.Res. 5, 23 Stat. 516.
32. See Barnett 11-12; Meyers, supra, n. 15. The symbol of the creche as an artifact of Christmas celebration apparently owes its origins to St. Francis of Assisi who, according to most accounts, first popularized the ritual reenactment of the birth of Christ by erecting a manger attended by townspeople who played the now-traditional roles of shepherds, Magi, etc., in the village of Greccio, Italy, in 1224. See W. Auld, Christmas Traditions 56 (1931); M. Krythe, All About Christmas 85 (1954).
33. One commentator has noted that the increasing secularization of the Christmas celebration which occurred during the 19th century led
members of the Puritan and evangelical churches [to be] less inclined to oppose the secular celebration when it no longer symbolized the religious and political dominance of the Church of England. This tolerance increased during the nineteenth century, and undoubtedly encouraged [the] popularity [of the celebration of Christmas].