|County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter
[ Blackmun ]
[ O'Connor ]
[ Brennan ]
[ Stevens ]
[ Kennedy ]
County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
JUSTICE O'CONNOR, with whom JUSTICE BRENNAN and JUSTICE STEVENS join as to Part II, concurring in part and concurring in the judgment.
Judicial review of government action under the Establishment Clause is a delicate task. The Court has avoided drawing lines which entirely sweep away all government recognition and acknowledgment of the role of religion in the lives of our citizens, for to do so would exhibit not neutrality, but hostility, to religion. Instead, the courts have made case-specific examinations of the challenged government action and have attempted to do so with the aid of the standards described by JUSTICE BLACKMUN in Part III-A of the Court's opinion. Ante at 590-594. Unfortunately, even the development of articulable standards and guidelines has not always resulted in agreement among the Members of this Court on the results in individual cases. And so it is again today.
The constitutionality of the two displays at issue in these cases turns on how we interpret and apply the holding in Lynch v. Donnelly, 465 U.S. 668 (1984), in which we rejected an Establishment Clause challenge to the city of Pawtucket's inclusion of a creche in its annual Christmas holiday display. The seasonal display reviewed in Lynch was located in a privately owned park in the heart of the shopping district. Id. at 671. In addition to the creche, the display included
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, [and] a large banner that rea[d] "SEASONS GREETINGS."
Ibid. The city owned all the components of the display. Setting up and dismantling the creche cost the city about $20 a year, and nominal expenses were incurred in lighting the creche.
The Lynch Court began its analysis by stating that Establishment Clause cases call for careful line drawing: "[N]o fixed, per se rule can be framed." Id. at 678. Although declaring [p624] that it was not willing to be confined to any single test, the Court essentially applied the Lemon test, asking
whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion.
465 U.S. at 679 (citing Lemon v. Kurtzman, 403 U.S. 602 (1971)). In reversing the lower court's decision, which held that inclusion of the creche in the holiday display violated the Establishment Clause, the Court stressed that the lower court erred in "focusing almost exclusively on the creche." 465 U.S. at 680.
In so doing, it rejected the city's claim that its reasons for including the creche are essentially the same as its reasons for sponsoring the display as a whole.
Ibid. When viewed in the "context of the Christmas Holiday season," the Court reasoned, there was insufficient evidence to suggest that inclusion of the creche as part of the holiday display was an effort to advocate a particular religious message. Ibid. The Court concluded that Pawtucket had a secular purpose for including the creche in its Christmas holiday display, namely, "to depict the origins of that Holiday." Id. at 681.
The Court also concluded that inclusion of the creche in the display did not have the primary effect of advancing religion.
[D]isplay of the creche is no more an advancement or endorsement of religion than the Congressional and Executive recognition of the origins of the Holiday itself as "Christ's Mass," or the exhibition of literally hundreds of religious paintings in governmentally supported museums.
Id. at 683. Finally, the Court found no excessive entanglement between religion and government. There was
no evidence of contact with church authorities concerning the content or design of the exhibit prior to or since Pawtucket's purchase of the creche.
Id. at 684.
I joined the majority opinion in Lynch because, as I read that opinion, it was consistent with the analysis set forth in my separate concurrence, which stressed that
[e]very government [p625] practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion.
Id. at 694 (emphasis added). Indeed, by referring repeatedly to "inclusion of the creche" in the larger holiday display, id. at 671, 680-682, 686, the Lynch majority recognized that the creche had to be viewed in light of the total display of which it was a part. Moreover, I joined the Court's discussion in Part II of Lynch concerning government acknowledgments of religion in American life because, in my view, acknowledgments such as the legislative prayers upheld in Marsh v. Chambers, 463 U.S. 783 (1983), and the printing of "In God We Trust" on our coins serve the secular purposes of
solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.
Lynch, 465 U.S. at 693 (concurring opinion). Because they serve such secular purposes and because of their "history and ubiquity," such government acknowledgments of religion are not understood as conveying an endorsement of particular religious beliefs. Ibid. At the same time, it is clear that
[g]overnment practices that purport to celebrate or acknowledge events with religious significance must be subjected to careful judicial scrutiny.
Id. at 694.
In my concurrence in Lynch, I suggested a clarification of our Establishment Clause doctrine to reinforce the concept that the Establishment Clause "prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community." Id. at 687. The government violates this prohibition if it endorses or disapproves of religion. Id. at 688.
Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.
Ibid. Disapproval of religion conveys the opposite message. Thus, in my view, the central issue in Lynch was whether the city of Pawtucket had [p626] endorsed Christianity by displaying a creche as part of a larger exhibit of traditional secular symbols of the Christmas holiday season.
In Lynch, I concluded that the city's display of a creche in its larger holiday exhibit in a private park in the commercial district had neither the purpose nor the effect of conveying a message of government endorsement of Christianity or disapproval of other religions. The purpose of including the creche in the larger display was to celebrate the public holiday through its traditional symbols, not to promote the religious content of the creche. Id. at 691. Nor, in my view, did Pawtucket's display of the creche along with secular symbols of the Christmas holiday objectively convey a message of endorsement of Christianity. Id. at 692.
For the reasons stated in Part IV of the Court's opinion in these cases, I agree that the creche displayed on the Grand Staircase of the Allegheny County Courthouse, the seat of county government, conveys a message to nonadherents of Christianity that they are not full members of the political community, and a corresponding message to Christians that they are favored members of the political community. In contrast to the creche in Lynch, which was displayed in a private park in the city's commercial district as part of a broader display of traditional secular symbols of the holiday season, this creche stands alone in the county courthouse. The display of religious symbols in public areas of core government buildings runs a special risk of "mak[ing] religion relevant, in reality or public perception, to status in the political community." Lynch, supra, at 692 (concurring opinion). See also American Jewish Congress v. Chicago, 827 F.2d 120, 128 (CA7 1987) ("Because City Hall is so plainly under government ownership and control, every display and activity in the building is implicitly marked with the stamp of government approval. The presence of a nativity scene in the lobby, therefore, inevitably creates a clear and strong impression that the local government tacitly endorses [p627] Christianity"). The Court correctly concludes that placement of the central religious symbol of the Christmas holiday season at the Allegheny County Courthouse has the unconstitutional effect of conveying a government endorsement of Christianity.
In his separate opinion, JUSTICE KENNEDY asserts that the endorsement test "is flawed in its fundamentals and unworkable in practice." Post at 492 U.S. 669"]669 (opinion concurring in judgment in part and dissenting in part). In my view, neither criticism is persuasive. As a theoretical matter, the endorsement test captures the essential command of the Establishment Clause, namely, that government must not make a person's religious beliefs relevant to his or her standing in the political community by conveying a message "that religion or a particular religious belief is favored or preferred." 669 (opinion concurring in judgment in part and dissenting in part). In my view, neither criticism is persuasive. As a theoretical matter, the endorsement test captures the essential command of the Establishment Clause, namely, that government must not make a person's religious beliefs relevant to his or her standing in the political community by conveying a message "that religion or a particular religious belief is favored or preferred." Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O'CONNOR, J., concurring in judgment); 472 U.S. 38, 70 (1985) (O'CONNOR, J., concurring in judgment); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 389 (1985). See also Beschle, The Conservative as Liberal: The Religion Clauses, Liberal Neutrality, and the Approach of Justice O'Connor, 62 Notre Dame L.Rev. 151 (1987); Note, Developments in the Law -- Religion and the State, 100 Harv.L.Rev. 1606, 1647 (1987) (Developments in the Law). We live in a pluralistic society. Our citizens come from diverse religious traditions, or adhere to no particular religious beliefs at all. If government is to be neutral in matters of religion, rather than showing either favoritism or disapproval towards citizens based on their personal religious choices, government cannot endorse the religious practices and beliefs of some citizens without sending a clear message to nonadherents that they are outsiders or less than full members of the political community.
An Establishment Clause standard that prohibits only "coercive" practices or overt efforts at government proselytization, post at 659-662, 664-665, but fails to take account of the numerous more subtle ways that government can show favoritism [p628] to particular beliefs or convey a message of disapproval to others, would not, in my view, adequately protect the religious liberty or respect the religious diversity of the members of our pluralistic political community. Thus, this Court has never relied on coercion alone as the touchstone of Establishment Clause analysis. See, e.g., Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 786 (1973) ("[W]hile proof of coercion might provide a basis for a claim under the Free Exercise Clause, it [is] not a necessary element of any claim under the Establishment Clause"); Engel v. Vitale, 370 U.S. 421, 430 (1962). To require a showing of coercion, even indirect coercion, as an essential element of an Establishment Clause violation would make the Free Exercise Clause a redundancy. See Abington School District v. Schempp, 374 U.S. 203, 223 (1963) ("The distinction between the two clauses is apparent -- a violation of the Free Exercise Clause is predicated on coercion, while the Establishment Clause violation need not be so attended"). See also Laycock, "Nonpreferential" Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L.Rev. 875, 922 (1986) ("If coercion is also an element of the establishment clause, establishment adds nothing to free exercise"). Moreover, as even JUSTICE KENNEDY recognizes, any Establishment Clause test limited to "direct coercion" clearly would fail to account for forms of "[s]ymbolic recognition or accommodation of religious faith" that may violate the Establishment Clause. Post at 661.
I continue to believe that the endorsement test asks the right question about governmental practices challenged on Establishment Clause grounds, including challenged practices involving the display of religious symbols. Moreover, commentators in the scholarly literature have found merit in the approach. See, e.g., Beschle, supra, at 174; Comment, Lemon Reconstituted: Justice O'Connor's Proposed Modifications of the Lemon Test for Establishment Clause Violations, 1986 B.Y.U.L.Rev. 465; Marshall, "We Know It When We [p629] See It": The Supreme Court and Establishment, 59 S. Cal.L.Rev. 495 (1986); Developments in the Law 1647. I also remain convinced that the endorsement test is capable of consistent application. Indeed, it is notable that the three Circuit courts which have considered challenges to the display of a creche standing alone at city hall have each concluded, relying in part on endorsement analysis, that such a practice sends a message to nonadherents of Christianity that they are outsiders in the political community. See 842 F.2d 655 (CA3 1988); American Jewish Congress v. Chicago, 827 F.2d 120, 127-128 (CA7 1987); ACLU v. Birmingham, 791 F.2d 1561, 1566-1567 (CA6), cert. denied, 479 U.S. 939 (1986). See also Friedman v. Board of County Commissioners of Bernalillo County, 781 F.2d 777, 780-782 (CA10 1985) (en banc), cert. denied, 476 U.S. 1169 (1986) (county seal including Latin cross and Spanish motto translated as "With This We Conquer," conveys a message of endorsement of Christianity). To be sure, the endorsement test depends on a sensitivity to the unique circumstances and context of a particular challenged practice and, like any test that is sensitive to context, it may not always yield results with unanimous agreement at the margins. But that is true of many standards in constitutional law, and even the modified coercion test offered by JUSTICE KENNEDY involves judgment and hard choices at the margin. He admits as much by acknowledging that the permanent display of a Latin cross at city hall would violate the Establishment Clause, as would the display of symbols of Christian holidays alone. Post at 661, 664-665, n. 3. Would the display of a Latin cross for six months have such an unconstitutional effect, or the display of the symbols of most Christian holidays and one Jewish holiday? Would the Christmastime display of a creche inside a courtroom be "coercive" if subpoenaed witnesses had no opportunity to "turn their backs" and walk away? Post at 664. Would displaying a creche in front of a public school violate the Establishment Clause under JUSTICE KENNEDY's test? [p630] We cannot avoid the obligation to draw lines, often close and difficult lines, in deciding Establishment Clause cases, and that is not a problem unique to the endorsement test.
JUSTICE KENNEDY submits that the endorsement test is inconsistent with our precedents and traditions because, in his words, if it were "applied without artificial exceptions for historical practice," it would invalidate many traditional practices recognizing the role of religion in our society. Post at 492 U.S. 670"]670. This criticism shortchanges both the endorsement test itself and my explanation of the reason why certain longstanding government acknowledgments of religion do not, under that test, convey a message of endorsement. Practices such as legislative prayers or opening Court sessions with "God save the United States and this honorable Court" serve the secular purposes of "solemnizing public occasions" and "expressing confidence in the future," Lynch, 465 U.S. at 693 (concurring opinion). These examples of ceremonial deism do not survive Establishment Clause scrutiny simply by virtue of their historical longevity alone. Historical acceptance of a practice does not, in itself, validate that practice under the Establishment Clause if the practice violates the values protected by that Clause, just as historical acceptance of racial or gender based discrimination does not immunize such practices from scrutiny under the 14th Amendment. As we recognized in 670. This criticism shortchanges both the endorsement test itself and my explanation of the reason why certain longstanding government acknowledgments of religion do not, under that test, convey a message of endorsement. Practices such as legislative prayers or opening Court sessions with "God save the United States and this honorable Court" serve the secular purposes of "solemnizing public occasions" and "expressing confidence in the future," Lynch, 465 U.S. at 693 (concurring opinion). These examples of ceremonial deism do not survive Establishment Clause scrutiny simply by virtue of their historical longevity alone. Historical acceptance of a practice does not, in itself, validate that practice under the Establishment Clause if the practice violates the values protected by that Clause, just as historical acceptance of racial or gender based discrimination does not immunize such practices from scrutiny under the 14th Amendment. As we recognized in Walz v. Tax Comm'n of New York City, 397 U.S. 664, 678 (1970),
[N]o 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.
Under the endorsement test, the "history and ubiquity" of a practice is relevant not because it creates an "artificial exception" from that test. On the contrary, the "history and ubiquity" of a practice is relevant because it provides part of the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsement of religion. It is the combination of the [p631] longstanding existence of practices such as opening legislative sessions with legislative prayers or opening Court sessions with "God save the United States and this honorable Court," as well as their nonsectarian nature, that leads me to the conclusion that those particular practices, despite their religious roots, do not convey a message of endorsement of particular religious beliefs. See Lynch, supra, at 465 U.S. 693 (concurring opinion); Developments in the Law 1652-1654. Similarly, the celebration of Thanksgiving as a public holiday, despite its religious origins, is now generally understood as a celebration of patriotic values, rather than particular religious beliefs. The question under endorsement analysis, in short, is whether a reasonable observer would view such longstanding practices as a disapproval of his or her particular religious choices, in light of the fact that they serve a secular purpose, rather than a sectarian one, and have largely lost their religious significance over time. See L. Tribe, American Constitutional Law 1294-1296 (2d ed.1988). Although the endorsement test requires careful and often difficult linedrawing and is highly context-specific, no alternative test has been suggested that captures the essential mandate of the Establishment Clause as well as the endorsement test does, and it warrants continued application and refinement.
Contrary to JUSTICE KENNEDY's assertions, neither the endorsement test nor its application in this case reflects "an unjustified hostility toward religion." Post at 655. See also post at 663, 667-678. Instead, the endorsement standard recognizes that the religious liberty so precious to the citizens who make up our diverse country is protected, not impeded, when government avoids endorsing religion or favoring particular beliefs over others. Clearly, the government can acknowledge the role of religion in our society in numerous ways that do not amount to an endorsement. See Lynch, supra, at 693 (concurring opinion). Moreover, the government can accommodate religion by lifting government-imposed burdens on religion. See Wallace v. Jaffree, 472 [p632] U.S. at 83-84 (opinion concurring in judgment). Indeed, the Free Exercise Clause may mandate that it do so in particular cases. In cases involving the lifting of government burdens on the free exercise of religion, a reasonable observer would take into account the values underlying the Free Exercise Clause in assessing whether the challenged practice conveyed a message of endorsement. Id. at 83. By "build[ing] on the concerns at the core of nonestablishment doctrine and recogniz[ing] the role of accommodations in furthering free exercise," the endorsement test "provides a standard capable of consistent application and avoids the criticism leveled against the Lemon test." Rostain, Permissible Accommodations of Religion: Reconsidering the New York Get Statute, 96 Yale L.J. 1147, 1159-1160 (1987). The cases before the Court today, however, do not involve lifting a governmental burden on the free exercise of religion. By repeatedly using the terms "acknowledgment" of religion and "accommodation" of religion interchangeably, however, post at 662-664, 670, 678, JUSTICE KENNEDY obscures the fact that the displays at issue in these cases were not placed at city hall in order to remove a government-imposed burden on the free exercise of religion. Christians remain free to display their creches at their homes and churches. Ante at 601, n. 51. Allegheny County has neither placed nor removed a governmental burden on the free exercise of religion, but rather, for the reasons stated in Part IV of the Court's opinion, has conveyed a message of governmental endorsement of Christian beliefs. This the Establishment Clause does not permit.
For reasons which differ somewhat from those set forth in Part VI of JUSTICE BLACKMUN's opinion, I also conclude that the city of Pittsburgh's combined holiday display of a Chanukah menorah, a Christmas tree, and a sign saluting liberty does not have the effect of conveying an endorsement of religion. I agree with JUSTICE BLACKMUN, ante at 616-617, [p633] that the Christmas tree, whatever its origins, is not regarded today as a religious symbol. Although Christmas is a public holiday that has both religious and secular aspects, the Christmas tree is widely viewed as a secular symbol of the holiday, in contrast to the creche, which depicts the holiday's religious dimensions. A Christmas tree displayed in front of city hall, in my view, cannot fairly be understood as conveying government endorsement of Christianity. Although JUSTICE BLACKMUN's opinion acknowledges that a Christmas tree alone conveys no endorsement of Christian beliefs, it formulates the question posed by Pittsburgh's combined display of the tree and the menorah as whether the display
has the effect of endorsing both Christian and Jewish faiths, or rather simply recognizes that both Christmas and Chanukah are part of the same winter holiday season, which has attained a secular status in our society.
Ante at 616 (emphasis added).
That formulation of the question disregards the fact that the Christmas tree is a predominantly secular symbol, and, more significantly, obscures the religious nature of the menorah and the holiday of Chanukah. The opinion is correct to recognize that the religious holiday of Chanukah has historical and cultural, as well as religious, dimensions, and that there may be certain "secular aspects" to the holiday. But that is not to conclude, however, as JUSTICE BLACKMUN seems to do, that Chanukah has become a "secular holiday" in our society. Ante at 615. The Easter holiday celebrated by Christians may be accompanied by certain "secular aspects" such as Easter bunnies and Easter egg hunts, but it is nevertheless a religious holiday. Similarly, Chanukah is a religious holiday with strong historical components particularly important to the Jewish people. Moreover, the menorah is the central religious symbol and ritual object of that religious holiday. Under JUSTICE BLACKMUN's view, however, the menorah "has been relegated to the role of a neutral harbinger of the holiday season," Lynch, 465 U.S. at 727 [p634] (BLACKMUN, J., dissenting), almost devoid of any religious significance. In my view, the relevant question for Establishment Clause purposes is whether the City of Pittsburgh's display of the menorah, the religious symbol of a religious holiday, next to a Christmas tree and a sign saluting liberty sends a message of government endorsement of Judaism, or whether it sends a message of pluralism and freedom to choose one's own beliefs.
In characterizing the message conveyed by this display as either a "double endorsement" or a secular acknowledgment of the winter holiday season, the opinion states that "[i]t is distinctly implausible to view the combined display of the tree, the sign, and the menorah as endorsing Jewish faith alone." Ante at 616, n. 64. That statement, however, seems to suggest that it would be implausible for the city to endorse a faith adhered to by a minority of the citizenry. Regardless of the plausibility of a putative governmental purpose, the more important inquiry here is whether the governmental display of a minority faith's religious symbol could ever reasonably be understood to convey a message of endorsement of that faith. A menorah standing alone at city hall may well send such a message to nonadherents, just as, in this case, the creche standing alone at the Allegheny County Courthouse sends a message of governmental endorsement of Christianity, whatever the county's purpose in authorizing the display may have been. Thus, the question here is whether Pittsburgh's holiday display conveys a message of endorsement of Judaism, when the menorah is the only religious symbol in the combined display and when the opinion acknowledges that the tree cannot reasonably be understood to convey an endorsement of Christianity. One need not characterize Chanukah as a "secular" holiday or strain to argue that the menorah has a "secular" dimension, ante at 587, n. 34, in order to conclude that the city of Pittsburgh's combined display does not convey a message of endorsement of Judaism or of religion in general. [p635]
In setting up its holiday display, which included the lighted tree and the menorah, the city of Pittsburgh stressed the theme of liberty and pluralism by accompanying the exhibit with a sign bearing the following message:
"During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom."
Ante at 582. This sign indicates that the city intended to convey its own distinctive message of pluralism and freedom. By accompanying its display of a Christmas tree -- a secular symbol of the Christmas holiday season -- with a salute to liberty, and by adding a religious symbol from a Jewish holiday also celebrated at roughly the same time of year, I conclude that the city did not endorse Judaism or religion in general, but rather conveyed a message of pluralism and freedom of belief during the holiday season. "Although the religious, and indeed sectarian, significance" of the menorah "is not neutralized by the setting," Lynch, 465 U.S. at 692 (concurring opinion), this particular physical setting
changes what viewers may fairly understand to be the purpose of the display -- as a typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content.
The message of pluralism conveyed by the city's combined holiday display is not a message that endorses religion over nonreligion. Just as government may not favor particular religious beliefs over others, "government may not favor religious belief over disbelief." Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 27 (1989) (BLACKMUN, J., concurring in judgment); Wallace v. Jaffree, 472 U.S. at 52-54; id. at 70 (O'CONNOR, J., concurring in judgment). Here, by displaying a secular symbol of the Christmas holiday season rather than a religious one, the city acknowledged a public holiday celebrated by both religious and nonreligious citizens alike, and it did so without endorsing Christian beliefs. A reasonable observer would, in my view, appreciate that the combined [p636] display is an effort to acknowledge the cultural diversity of our country and to convey tolerance of different choices in matters of religious belief or nonbelief by recognizing that the winter holiday season is celebrated in diverse ways by our citizens. In short, in the holiday context, this combined display in its particular physical setting conveys neither an endorsement of Judaism or Christianity nor disapproval of alternative beliefs, and thus does not have the impermissible effect of "mak[ing] religion relevant, in reality or public perception, to status in the political community." Lynch, supra, at 692 (concurring opinion).
My conclusion does not depend on whether or not the city had "a more secular alternative symbol" of Chanukah, ante at 618, just as the Court's decision in Lynch clearly did not turn on whether the city of Pawtucket could have conveyed its tribute to the Christmas holiday season by using a "less religious" alternative to the creche symbol in its display of traditional holiday symbols. See Lynch, supra, at 681, n. 7 ("JUSTICE BRENNAN argues that the city's objectives could have been achieved without including the creche in the display, [465 U.S.] at 699. True or not, that is irrelevant. The question is whether the display of the creche violates the Establishment Clause"). In my view, JUSTICE BLACKMUN's new rule, ante at 618, that an inference of endorsement arises every time government uses a symbol with religious meaning if a "more secular alternative" is available is too blunt an instrument for Establishment Clause analysis, which depends on sensitivity to the context and circumstances presented by each case. Indeed, the opinion appears to recognize the importance of this contextual sensitivity by creating an exception to its new rule in the very case announcing it: the opinion acknowledges that "a purely secular symbol" of Chanukah is available, namely, a dreidel or four-sided top, but rejects the use of such a symbol because it "might be interpreted by some as mocking the celebration of Chanukah." Ibid. This recognition that the more religious [p637] alternative may, depending on the circumstances, convey a message that is least likely to implicate Establishment Clause concerns is an excellent example of the need to focus on the specific practice in question in its particular physical setting and context in determining whether government has conveyed or attempted to convey a message that religion or a particular religious belief is favored or preferred.
In sum, I conclude that the city of Pittsburgh's combined holiday display had neither the purpose nor the effect of endorsing religion, but that Allegheny County's creche display had such an effect. Accordingly, I join Parts I, II, III-A, IV, V, and VII of the Court's opinion, and concur in the judgment.