|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 BLACKMUN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, an opinion with respect to Parts I and II, in which JUSTICE STEVENS and JUSTICE O'CONNOR join, an opinion with respect to Part III-B, in which JUSTICE STEVENS joins, an opinion with respect to Part VII, in which JUSTICE O'CONNOR joins, and an opinion with respect to Part VI.
This litigation concerns the constitutionality of two recurring holiday displays located on public property in downtown Pittsburgh. The first is a creche placed on the Grand Staircase of the Allegheny County Courthouse. The second is a Chanukah menorah placed just outside the City-County Building, next to a Christmas tree and a sign saluting liberty. The Court of Appeals for the Third Circuit ruled that each display violates the Establishment Clause of the First Amendment because each has the impermissible effect of endorsing religion. [p579] 842 F.2d 655 (1988). We agree that the creche display has that unconstitutional effect, but reverse the Court of Appeals' judgment regarding the menorah display.
The county courthouse is owned by Allegheny County and is its seat of government. It houses the offices of the county commissioners, controller, treasurer, sheriff, and clerk of court. Civil and criminal trials are held there. App. 69. The "main," "most beautiful," and "most public" part of the courthouse is its Grand Staircase, set into one arch and surrounded by others, with arched windows serving as a backdrop. Id. at 157-158; see Joint Exhibit Volume (JEV) 31.
Since 1981, the county has permitted the Holy Name Society, a Roman Catholic group, to display a creche in the county courthouse during the Christmas holiday season. App. 164. Christmas, we note perhaps needlessly, is the holiday when Christians celebrate the birth of Jesus of Nazareth, whom they believe to be the Messiah. [n1] Western churches have celebrated Christmas Day on December 25 since the fourth century. [n2] As observed in this Nation, Christmas has a secular, as well as a religious, dimension. [n3] [p580]
The creche in the county courthouse, like other creches, is a visual representation of the scene in the manger in Bethlehem shortly after the birth of Jesus, as described in the Gospels of Luke and Matthew. [n4] The creche includes figures of the infant Jesus, Mary, Joseph, farm animals, shepherds, and wise men, all placed in or before a wooden representation of a manger, which has at its crest an angel bearing a banner that proclaims "Gloria in Excelsis Deo!" [n5]
During the 1986-1987 holiday season, the creche was on display on the Grand Staircase from November 26 to January 9. App. 15, 59. It had a wooden fence on three sides, and bore a plaque stating: "This Display Donated by the Holy Name Society." Sometime during the week of December 2, the county placed red and white poinsettia plants around the fence. Id. at 96. The county also placed a small evergreen tree, decorated with a red bow, behind each of the two endposts of the fence. Id. at 204; JEV 7. [n6] These trees stood alongside the manger backdrop, and were slightly shorter than it was. The angel thus was at the apex of the creche display. Altogether, the creche, the fence, the poinsettias, and the trees occupied a substantial amount of space on the Grand Staircase. No figures of Santa Claus or other decorations [p581] appeared on the Grand Staircase. App. 188. [n7] Cf. Lynch v. Donnelly, 465 U.S. 668, 671 (1984). Appendix A [omitted] at the end of this opinion is a photograph of the display.
The county uses the creche as the setting for its annual Christmas carol program. See JEV 36. During the 1986 season, the county invited high school choirs and other musical groups to perform during weekday lunch hours from December 3 through December 23. The county dedicated this program to world peace and to the families of prisoners of war and of persons missing in action in Southeast Asia. App. 160; JEV 30.
Near the Grand Staircase is an area of the county courthouse known as the "gallery forum" used for art and other cultural exhibits. App. 163. The creche, with its fence and floral frame, however, was distinct, and not connected with any exhibit in the gallery forum. See Tr. of Oral Arg. 7 (the forum was "not any kind of an integral part of the Christmas display"); see also JEV 32-34. In addition, various departments and offices within the county courthouse had their own Christmas decorations, but these also are not visible from the Grand Staircase. App. 167.
The City-County Building is separate and a block removed from the county courthouse and, as the name implies, is jointly owned by the city of Pittsburgh and Allegheny County. The city's portion of the building houses the city's principal offices, including the mayor's. Id. at 17. The city is responsible for the building's Grant Street entrance, which has three rounded arches supported by columns. Id. at 194, 207.
For a number of years, the city has had a large Christmas tree under the middle arch outside the Grant Street entrance. Following this practice, city employees, on November [p582] 17, 1986, erected a 45-foot tree under the middle arch and decorated it with lights and ornaments. Id. at 218-219. A few days later, the city placed at the foot of the tree a sign bearing the mayor's name and entitled "Salute to Liberty." Beneath the title, the sign stated:
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.
At least since 1982, the city has expanded its Grant Street holiday display to include a symbolic representation of Chanukah, an 8-day Jewish holiday that begins on the 25th day of the Jewish lunar month of Kislev. App. 138. [n8] The 25th of Kislev usually occurs in December, [n9] and thus Chanukah is the annual Jewish holiday that falls closest to Christmas Day each year. In 1986, Chanukah began at sundown on December 26. Id. at 138-139.
According to Jewish tradition, on the 25th of Kislev in 164 B.C.E. (before the common era (165 B.C.)), the Maccabees rededicated the Temple of Jerusalem after recapturing it from the Greeks, or, more accurately, from the Greek-influenced Seleucid Empire, in the course of a political rebellion. Id. [p583] at 138. [n10] Chanukah is the holiday which celebrates that event. [n11] The early history of the celebration of Chanukah is unclear; it appears that the holiday's central ritual -- the lighting of lamps -- was well established long before a single explanation of that ritual took hold. [n12]
The Talmud [n13] explains the lamp-lighting ritual as a commemoration of an event that occurred during the rededication of the Temple. The Temple housed a seven-branch menorah, [n14] which was to be kept burning continuously. Id. at 139, 144. When the Maccabees rededicated the Temple, they had only enough oil to last for one day. But, according to the Talmud, the oil miraculously lasted for eight days (the length of time it took to obtain additional oil). Id. at 139. [n15] To celebrate and publicly proclaim this miracle, the Talmud prescribes that it is a mitzvah (i.e., a religious deed or commandment), id. at 140, [n16] for Jews to place a lamp with eight lights just outside the entrance to their homes or in a front window during the eight days of Chanukah. Id. at [p584] 147. [n17] Where practicality or safety from persecution so requires, the lamp may be placed in a window or inside the home. [n18] The Talmud also ordains certain blessings to be recited each night of Chanukah before lighting the lamp. [n19] One such benediction has been translated into English as "We are blessing God who has sanctified us and commanded us with mitzvot and has told us to light the candles of Hanukkah." Id. at 306. [n20]
Although Jewish law does not contain any rule regarding the shape or substance of a Chanukah lamp (or "hanukkiyyah"), id. at 146, 238, [n21] it became customary to evoke the memory of the Temple menorah. Id. at 139, 144. The Temple menorah was of a tree-and-branch design; it had a central candlestick with six branches. Id. at 259. [n22] In contrast, a Chanukah menorah of tree-and-branch design has eight branches -- one for each day of the holiday -- plus a ninth to hold the shamash (an extra candle used to light the other eight). Id. at 144. [n23] Also in contrast to the Temple menorah, the Chanukah menorah is not a sanctified object; it need not be treated with special care. [n24] [p585]
Lighting the menorah is the primary tradition associated with Chanukah, but the holiday is marked by other traditions as well. One custom among some Jews is to give children Chanukah gelt, or money. [n25] Another is for the children to gamble their gelt using a dreidel, a top with four sides. Each of the four sides contains a Hebrew letter; together, the four letters abbreviate a phrase that refers to the Chanukah miracle. Id. at 241-242. [n26]
Chanukah, like Christmas, is a cultural event as well as a religious holiday. Id. at 143. Indeed, the Chanukah story always has had a political or national, as well as a religious, dimension: it tells of national heroism in addition to divine intervention. [n27] Also, Chanukah, like Christmas, is a winter holiday; according to some historians, it was associated in ancient times with the winter solstice. [n28] Just as some Americans celebrate Christmas without regard to its religious significance, some nonreligious American Jews celebrate Chanukah as an expression of ethnic identity, and "as a cultural or national event, rather than as a specifically religious event." Ibid. [n29] [p586]
The cultural significance of Chanukah varies with the setting in which the holiday is celebrated. In contemporary Israel, the nationalist and military aspects of the Chanukah story receive special emphasis. [n30] In this country, the tradition of giving Chanukah gelt has taken on greater importance because of the temporal proximity of Chanukah to Christmas. [n31] Indeed, some have suggested that the proximity of Christmas accounts for the social prominence of Chanukah in this country. [n32] Whatever the reason, Chanukah is observed by American Jews to an extent greater than its religious importance [p587] would indicate: in the hierarchy of Jewish holidays, Chanukah ranks fairly low in religious significance. [n33] This socially heightened status of Chanukah reflects its cultural or secular dimension. [n34]
On December 22 of the 1986 holiday season, the city placed at the Grant Street entrance to the City-County Building an 18-foot Chanukah menorah of an abstract tree-and-branch design. The menorah was placed next to the city's 45-foot Christmas tree, against one of the columns that supports the arch into which the tree was set. The menorah is owned by Chabad, a Jewish group, [n35] but is stored, erected, and removed each year by the city. Id. at 290; see also Brief for Petitioner in No. 88-96, p. 4. The tree, the sign, and the menorah were all removed on January 13. App. 58, 220-221. Appendix B [omitted], p. 622, is a photograph of the tree, the sign, and the menorah. Id. at 212; JEV 40.
This litigation began on December 10, 1986, when respondents, the Greater Pittsburgh Chapter of the American Civil Liberties Union and seven local residents, filed suit against the county and the city, seeking permanently to enjoin the county from displaying the creche in the county courthouse and the city from displaying the menorah in front of the City-County [p588] Building. [n36] Respondents claim that the displays of the creche and the menorah each violate the Establishment Clause of the First Amendment, made applicable to state governments by the Fourteenth Amendment. See Wallace v. Jaffree, 472 U.S. 38, 48-55 (1985). [n37] Chabad was permitted to intervene to defend the display of its menorah. [n38]
On May 8, 1987, the District Court denied respondents' request for a permanent injunction. Relying on Lynch v. Donnelly, 465 U.S. 668 (1984), the court stated that
the creche was but part of the holiday decoration of the stairwell and a foreground for the highschool choirs which entertained each day at noon.
App. to Pet. for Cert. in No. 87-2050, p. 4a. Regarding the menorah, the court concluded that "it was but an insignificant part of another holiday display." Ibid. The court also found that "the displays had a secular purpose," and "did not create an excessive entanglement of government with religion." Id. at 5a.
Respondents appealed, and a divided panel of the Court of Appeals reversed. 842 F.2d 655 (CA3 1988). Distinguishing Lynch v. Donnelly, the panel majority determined that the creche and the menorah must be understood as endorsing Christianity and Judaism. The court observed: "Each display was located at or in a public building devoted [p589] to core functions of government." 842 F.2d at 662. The court also stated:
Further, while the menorah was placed near a Christmas tree, neither the creche nor the menorah can reasonably be deemed to have been subsumed by a larger display of non-religious items.
Ibid. Because the impermissible effect of endorsing religion was a sufficient basis for holding each display to be in violation of the Establishment Clause under Lemon v. Kurzman, 403 U.S. 602 (1971), the Court of Appeals did not consider whether either one had an impermissible purpose or resulted in an unconstitutional entanglement between government and religion.
The dissenting judge stated that the creche,
accompanied by poinsettia plants and evergreens, does not violate the Establishment Clause simply because plastic Santa Clauses or reindeer are absent.
842 F.2d at 670. As to the menorah, he asserted:
Including a reference to Chanukah did no more than broaden the commemoration of the holiday season and stress the notion of sharing its joy.
Id. at 670-671.
Rehearing en banc was denied by a 6-to-5 vote. See App. to Pet. for Cert. in No. 87-2050, p. 45a. The county, the city, and Chabad each filed a petition for certiorari. We granted all three petitions. 488 U.S. 816 (1988).
This Nation is heir to a history and tradition of religious diversity that dates from the settlement of the North American Continent. Sectarian differences among various Christian denominations were central to the origins of our Republic. Since then, adherents of religions too numerous to name have made the United States their home, as have those whose beliefs expressly exclude religion.
Precisely because of the religious diversity that is our national heritage, the Founders added to the Constitution a Bill of Rights, the very first words of which declare: "Congress shall make no law respecting an establishment of religion, or [p590] prohibiting the free exercise thereof. . . ." Perhaps in the early days of the Republic these words were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to "the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism." Wallace v. Jaffee, 472 U. at 52. [n39] It is settled law that no government official in this Nation may violate these fundamental constitutional rights regarding matters of conscience. Id. at 49.
In the course of adjudicating specific cases, this Court has come to understand the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization, [n40] may not discriminate among persons on the basis of their religious beliefs and practices, [n41] [p591] may not delegate a governmental power to a religious institution, [n42] and may not involve itself too deeply in such an institution's affairs. [n43] Although "the myriad, subtle ways in which Establishment Clause values can be eroded," Lynch v. Donnelly, 465 U.S. at 465 U.S. 694"]694 (O'CONNOR, J., concurring), are not susceptible to a single verbal formulation, this Court has attempted to encapsulate the essential precepts of the Establishment Clause. Thus, in 694 (O'CONNOR, J., concurring), are not susceptible to a single verbal formulation, this Court has attempted to encapsulate the essential precepts of the Establishment Clause. Thus, in Everson v. Board of Education of Ewing, 330 U.S. 1 (1947), the Court gave this often-repeated summary:
The "establishment of religion" clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will, or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.
Id. at 15-16. [p592]
In Lemon v. Kurtzman, supra, the Court sought to refine these principles by focusing on three "tests" for determining whether a government practice violates the Establishment Clause. Under the Lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion. 403 U.S. at 612-613. This trilogy of tests has been applied regularly in the Court's later Establishment Clause cases. [n44]
Our subsequent decisions further have refined the definition of governmental action that unconstitutionally advances religion. In recent years, we have paid particularly close attention to whether the challenged governmental practice either has the purpose or effect of "endorsing" religion, a concern that has long had a place in our Establishment Clause jurisprudence. See Engel v. Vitale, 370 U.S. 421, 436 (1962). Thus, in Wallace v. Jaffree, 472 U.S. at 60, the Court held unconstitutional Alabama's moment-of-silence statute because it was "enacted . . . for the sole purpose of expressing the State's endorsement of prayer activities." The Court similarly invalidated Louisiana's "Creationism Act" because it "endorses religion" in its purpose. Edwards v. Aguillard, 482 U.S. 578, 593 (1987). And the educational [p593] program in School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 389-392 (1985), was held to violate the Establishment Clause because of its "endorsement" effect. See also Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 17 (1989) (plurality opinion) (tax exemption limited to religious periodicals "effectively endorses religious belief ").
Of course, the word "endorsement" is not self-defining. Rather, it derives its meaning from other words that this Court has found useful over the years in interpreting the Establishment Clause. Thus, it has been noted that the prohibition against governmental endorsement of religion "preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred." Wallace v. Jaffree, 472 U.S. at 70 (O'CONNOR, J., concurring in judgment) (emphasis added). Accord, Texas Monthly, Inc. v. Bullock, 489 U.S. at 27, 28 (separate opinion concurring in judgment) (reaffirming that "government may not favor religious belief over disbelief" or adopt a "preference for the dissemination of religious ideas"); Edwards v. Aguillard, 482 U.S. at 593 ("preference" for particular religious beliefs constitutes an endorsement of religion); Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J., concurring) ("The fullest realization of true religious liberty requires that government . . . effect no favoritism among sects or between religion and nonreligion"). Moreover, the term "endorsement" is closely linked to the term "promotion," Lynch v. Donnelly, 465 U.S. at 691 (O'CONNOR, J., concurring), and this Court long since has held that government "may not . . . promote one religion or religious theory against another or even against the militant opposite," Epperson v. Arkansas, 393 U.S. 97, 104 (1968). See also Wallace v. Jaffree, 472 U.S. at 59-60 (using the concepts of endorsement, promotion, and favoritism interchangeably).
Whether the key word is "endorsement," "favoritism," or "promotion," the essential principle remains the same. The [p594] Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from "making adherence to a religion relevant in any way to a person's standing in the political community." Lynch v. Donnelly, 465 U.S. at 687 (O'CONNOR, J., concurring).
We have had occasion in the past to apply Establishment Clause principles to the government's display of objects with religious significance. In Stone v. Graham, 449 U.S. 39 (1980), we held that the display of a copy of the Ten Commandments on the walls of public classrooms violates the Establishment Clause. Closer to the facts of this litigation is Lynch v. Donnelly, supra, in which we considered whether the city of Pawtucket, R.I., had violated the Establishment Clause by including a creche in its annual Christmas display, located in a private park within the downtown shopping district. By a 5-to-4 decision in that difficult case, the Court upheld inclusion of the creche in the Pawtucket display, holding, inter alia, that the inclusion of the creche did not have the impermissible effect of advancing or promoting religion. [n45]
The rationale of the majority opinion in Lynch is none too clear: the opinion contains two strands, neither of which provides guidance for decision in subsequent cases. First, the opinion states that the inclusion of the creche in the display was "no more an advancement or endorsement of religion" than other "endorsements" this Court has approved in the past, 465 U.S. at 683 -- but the opinion offers no discernible measure for distinguishing between permissible and impermissible endorsements. Second, the opinion observes that any benefit the government's display of the creche gave to religion was no more than "indirect, remote, and incidental," ibid. -- without saying how or why. [p595]
Although JUSTICE O'CONNOR joined the majority opinion in Lynch, she wrote a concurrence that differs in significant respects from the majority opinion. The main difference is that the concurrence provides a sound analytical framework for evaluating governmental use of religious symbols.
First and foremost, the concurrence squarely rejects any notion that this Court will tolerate some government endorsement of religion. Rather, the concurrence recognizes any endorsement of religion as "invalid," id. at 690, because it
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,
id. at 688.
Second, the concurrence articulates a method for determining whether the government's use of an object with religious meaning has the effect of endorsing religion. The effect of the display depends upon the message that the government's practice communicates: the question is "what viewers may fairly understand to be the purpose of the display." Id. at 692. That inquiry, of necessity, turns upon the context in which the contested object appears:
[A] typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content.
Ibid. The concurrence thus emphasizes that the constitutionality of the creche in that case depended upon its "particular physical setting," ibid., and further observes: "Every government practice must be judged in its unique circumstances to determine whether it [endorses] religion," id. at 694. [n46] [p596]
The concurrence applied this mode of analysis to the Pawtucket creche, seen in the context of that city's holiday celebration as a whole. In addition to the creche, the city's display contained: a Santa Claus house with a live Santa distributing candy; reindeer pulling Santa's sleigh; a live 40-foot Christmas tree strung with lights; statues of carolers in old-fashioned dress; candy-striped poles; a "talking" wishing well; a large banner proclaiming "SEASONS GREETINGS"; a miniature "village" with several houses and a church; and various "cut-out" figures, including those of a clown, a dancing elephant, a robot, and a teddy bear. See 525 F.Supp. 1150, 1155 (RI 1981). The concurrence concluded that, both because the creche is "a traditional symbol" of Christmas, a holiday with strong secular elements, and because the creche was "displayed along with purely secular symbols," the creche's setting "changes what viewers may fairly understand to be the purpose of the display" and "negates any message of endorsement" of "the Christian beliefs represented by the creche." 465 U.S. at 692.
The four Lynch dissenters agreed with the concurrence that the controlling question was "whether Pawtucket ha[d] run afoul of the Establishment Clause by endorsing religion through its display of the creche." Id. at 698, n. 3 (BRENNAN, J., dissenting). The dissenters also agreed with the [p597] general proposition that the context in which the government uses a religious symbol is relevant for determining the answer to that question. Id. at 705-706. They simply reached a different answer: the dissenters concluded that the other elements of the Pawtucket display did not negate the endorsement of Christian faith caused by the presence of the creche. They viewed the inclusion of the creche in the city's overall display as placing "the government's imprimatur of approval on the particular religious beliefs exemplified by the creche." Id. at 701. Thus, they stated:
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.
Thus, despite divergence at the bottom line, the five Justices in concurrence and dissent in Lynch agreed upon the relevant constitutional principles: the government's use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs, and the effect of the government's use of religious symbolism depends upon its context. These general principles are sound, and have been adopted by the Court in subsequent cases. Since Lynch, the Court has made clear that, when evaluating the effect of government conduct under the Establishment Clause, we must ascertain whether
the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.
Grand Rapids, 473 U.S. at 390. Accordingly, our present task is to determine whether the display of the creche and the menorah, in their respective "particular physical settings," has the effect of endorsing or disapproving religious beliefs. [n47] [p598]
We turn first to the county's creche display. There is no doubt, of course, that the creche itself is capable of communicating a religious message. See Lynch, 465 U.S. at 685 (majority opinion); id. at 692 (O'CONNOR, J., concurring); id. at 701 (BRENNAN, J., dissenting); id. at 727 (BLACKMUN, J., dissenting). Indeed, the creche in this lawsuit uses words, as well as the picture of the nativity scene, to make its religious meaning unmistakably clear. "Glory to God in the Highest!" says the angel in the creche -- Glory to God because of the birth of Jesus. This praise to God in Christian terms is indisputably religious -- indeed sectarian -- just as it is when said in the Gospel or in a church service.
Under the Court's holding in Lynch, the effect of a creche display turns on its setting. Here, unlike in Lynch, nothing in the context of the display detracts from the creche's religious message. The Lynch display comprised a series of figures and objects, each group of which had its own focal point. Santa's house and his reindeer were objects of attention separate from the creche, and had their specific visual story to tell. Similarly, whatever a "talking" wishing well may be, it obviously was a center of attention separate from the creche. Here, in contrast, the creche stands alone: it is the single element of the display on the Grand Staircase. [n48] [p599]
The floral decoration surrounding the creche cannot be viewed as somehow equivalent to the secular symbols in the overall Lynch display. The floral frame, like all good frames, serves only to draw one's attention to the message inside the frame. The floral decoration surrounding the creche contributes to, rather than detracts from, the endorsement of religion conveyed by the creche. It is as if the county had allowed the Holy Name Society to display a cross on the Grand Staircase at Easter, and the county had surrounded the cross with Easter lilies. The county could not say that surrounding the cross with traditional flowers of the season would negate the endorsement of Christianity conveyed by the cross on the Grand Staircase. Its contention that the traditional Christmas greens negate the endorsement effect of the creche fares no better.
Nor does the fact that the creche was the setting for the county's annual Christmas carol program diminish its religious meaning. First, the carol program in 1986 lasted only from December 3 to December 23, and occupied, at most, one hour a day. JEV 28. The effect of the creche on those who viewed it when the choirs were not singing -- the vast majority of the time -- cannot be negated by the presence of the choir program. Second, because some of the carols performed at the site of the creche were religious in nature, [n49] those carols were more likely to augment the religious quality of the scene than to secularize it.
Furthermore, the creche sits on the Grand Staircase, the "main" and "most beautiful part" of the building that is the seat of county government. App. 157. No viewer could reasonably think that it occupies this location without the [p600] support and approval of the government. [n50] Thus, by permitting the "display of the creche in this particular physical setting," Lynch, 465 U.S. at 692 (O'CONNOR, J., concurring), the county sends an unmistakable message that it supports and promotes the Christian praise to God that is the creche's religious message.
The fact that the creche bears a sign disclosing its ownership by a Roman Catholic organization does not alter this conclusion. On the contrary, the sign simply demonstrates that the government is endorsing the religious message of that organization, rather than communicating a message of its own. But the Establishment Clause does not limit only the religious content of the government's own communications. It also prohibits the government's support and promotion of religious communications by religious organizations. See, e.g., Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (government support of the distribution of religious messages by religious organizations violates the Establishment Clause). Indeed, the very concept of "endorsement" conveys [p601] the sense of promoting someone else's message. Thus, by prohibiting government endorsement of religion, the Establishment Clause prohibits precisely what occurred here: the government's lending its support to the communication of a religious organization's religious message.
Finally, the county argues that it is sufficient to validate the display of the creche on the Grand Staircase that the display celebrates Christmas, and Christmas is a national holiday. This argument obviously proves too much. It would allow the celebration of the Eucharist inside a courthouse on Christmas Eve. While the county may have doubts about the constitutional status of celebrating the Eucharist inside the courthouse under the government's auspices, see Tr. of Oral Arg. 8-9, this Court does not. The government may acknowledge Christmas as a cultural phenomenon, but, under the First Amendment, it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus. [n51]
In sum, Lynch teaches that government may celebrate Christmas in some manner and form, but not in a way that endorses Christian doctrine. Here, Allegheny County has transgressed this line. It has chosen to celebrate Christmas in a way that has the effect of endorsing a patently Christian message: Glory to God for the birth of Jesus Christ. Under Lynch, and the rest of our cases, nothing more is required to [p602] demonstrate a violation of the Establishment Clause. The display of the creche in this context, therefore, must be permanently enjoined.
JUSTICE KENNEDY and the three Justices who join him would find the display of the creche consistent with the Establishment Clause. He argues that this conclusion necessarily follows from the Court's decision in Marsh v. Chambers, 463 U.S. 783 (1983), which sustained the constitutionality of legislative prayer. Post at 665. He also asserts that the creche, even in this setting, poses "no realistic risk" of "represent[ing] an effort to proselytize," post at 664, having repudiated the Court's endorsement inquiry in favor of a "proselytization" approach. The Court's analysis of the creche, he contends, "reflects an unjustified hostility toward religion." Post at 655.
JUSTICE KENNEDY's reasons for permitting the creche on the Grand Staircase and his condemnation of the Court's reasons for deciding otherwise are so far-reaching in their implications that they require a response in some depth.
In Marsh, the Court relied specifically on the fact that Congress authorized legislative prayer at the same time that it produced the Bill of Rights. See n. 46, supra. JUSTICE KENNEDY, however, argues that Marsh legitimates all "practices with no greater potential for an establishment of religion" than those "accepted traditions dating back to the Founding." Post at 669, 670. Otherwise, the Justice asserts, such practices as our national motto ("In God We Trust") and our Pledge of Allegiance (with the phrase "under God," added in 1954, Pub.L. 396, 68 Stat. 249) are in danger of invalidity.
Our previous opinions have considered in dicta the motto and the pledge, characterizing them as consistent with the proposition that government may not communicate an endorsement [p603] of religious belief. Lynch, 465 U.S. at 693 (O'CONNOR, J., concurring); id. at 716-717 (BRENNAN, J., dissenting). We need not return to the subject of "ceremonial deism," see n. 46, supra, because there is an obvious distinction between creche displays and references to God in the motto and the pledge. However history may affect the constitutionality of nonsectarian references to religion by the government, [n52] history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed.
Indeed, in Marsh itself, the Court recognized that not even the "unique history" of legislative prayer, 463 U.S. at 791, can justify contemporary legislative prayers that have the effect of affiliating the government with any one specific faith or belief. Id. at 794-795. The legislative prayers involved in Marsh did not violate this principle, because the particular chaplain had "removed all references to Christ." Id. at 793, n. 14. Thus, Marsh plainly does not stand for the sweeping proposition JUSTICE KENNEDY apparently would ascribe to it, namely, that all accepted practices 200 years old and their equivalents are constitutional today. Nor can Marsh, given its facts and its reasoning, compel the conclusion that the display of the creche involved in this lawsuit is constitutional. Although JUSTICE KENNEDY says that he "cannot comprehend" how the creche display could be invalid after Marsh, post at 665, surely he is able to distinguish between a specifically Christian symbol, like a creche, and more general religious references, like the legislative prayers in Marsh. [p604]
JUSTICE KENNEDY's reading of Marsh would gut the core of the Establishment Clause as this Court understands it. The history of this Nation, it is perhaps sad to say, contains numerous examples of official acts that endorsed Christianity specifically. See M. Borden, Jews, Turks, and Infidels (1984). [n53] Some of these examples date back to the Founding of the Republic, [n54] but this heritage of official discrimination [p605] against non-Christians has no place in the jurisprudence of the Establishment Clause. Whatever else the Establishment Clause may mean (and we have held it to mean no official preference even for religion over nonreligion, see, e.g., Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)), it certainly means, at the very least, that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). "The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244 (1982). There have been breaches of this command throughout this Nation's history, but they cannot diminish in any way the force of the command. Cf. Laycock, supra, n. 39, at 923. [n55]
Although JUSTICE KENNEDY's misreading of Marsh is predicated on a failure to recognize the bedrock Establishment Clause principle that, regardless of history, government may not demonstrate a preference for a particular faith, even he is forced to acknowledge that some instances of such favoritism are constitutionally intolerable. Post at 664-665, n. 3. He concedes also that the term "endorsement" long has been another way of defining a forbidden "preference" for [p606] a particular sect, post at 668-669, but he would repudiate the Court's endorsement inquiry as a "jurisprudence of minutiae," post at 674, because it examines the particular contexts in which the government employs religious symbols.
This label, of course, could be tagged on many areas of constitutional adjudication. For example, in determining whether the Fourth Amendment requires a warrant and probable cause before the government may conduct a particular search or seizure,
we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable cause requirements in the particular context,
Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 619 (1989) (emphasis added), an inquiry that "‘depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself,'" ibid., quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985); see also Treasury Employees v. Von Raab, 489 U.S. 656, 666 (1989) (repeating the principle that the applicability of the warrant requirement turns on "the particular context" of the search at issue). It is perhaps unfortunate, but nonetheless inevitable, that the broad language of many clauses within the Bill of Rights must be translated into adjudicatory principles that realize their full meaning only after their application to a series of concrete cases.
Indeed, not even under JUSTICE KENNEDY's preferred approach can the Establishment Clause be transformed into an exception to this rule. The Justice would substitute the term "proselytization" for "endorsement," post at 659-660, 661, 664, but his "proselytization" test suffers from the same "defect," if one must call it that, of requiring close factual analysis. JUSTICE KENNEDY has no doubt,
for example, that the [Establishment] Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall . . . because such an obtrusive year-round religious display [p607] would place the government's weight behind an obvious effort to proselytize on behalf of a particular religion.
Post at 661. He also suggests that a city would demonstrate an unconstitutional preference for Christianity if it displayed a Christian symbol during every major Christian holiday, but did not display the religious symbols of other faiths during other religious holidays. Post at 664-665, n. 3. But, for JUSTICE KENNEDY, would it be enough of a preference for Christianity if that city each year displayed a creche for 40 days during the Christmas season and a cross for 40 days during Lent (and never the symbols of other religions)? If so, then what if there were no cross, but the 40-day creche display contained a sign exhorting the city's citizens "to offer up their devotions to God their Creator, and his Son Jesus Christ, the Redeemer of the world"? See n. 53, supra.
The point of these rhetorical questions is obvious. In order to define precisely what government could and could not do under JUSTICE KENNEDY's "proselytization" test, the Court would have to decide a series of cases with particular fact patterns that fall along the spectrum of government references to religion (from the permanent display of a cross atop city hall to a passing reference to divine Providence in an official address). If one wished to be "uncharitable" to JUSTICE KENNEDY, see post at 675, one could say that his methodology requires counting the number of days during which the government displays Christian symbols and subtracting from this the number of days during which non-Christian symbols are displayed, divided by the number of different non-Christian religions represented in these displays, and then somehow factoring into this equation the prominence of the display's location and the degree to which each symbol possesses an inherently proselytizing quality. JUSTICE KENNEDY, of course, could defend his position by pointing to the inevitably fact-specific nature of the question whether a particular governmental practice signals the government's [p608] unconstitutional preference for a specific religious faith. But because JUSTICE KENNEDY's formulation of this essential Establishment Clause inquiry is no less fact-intensive than the "endorsement" formulation adopted by the Court, JUSTICE KENNEDY should be wary of accusing the Court's formulation as "using little more than intuition and a tape measure," post at 675, lest he find his own formulation convicted on an identical charge.
Indeed, perhaps the only real distinction between JUSTICE KENNEDY's "proselytization" test and the Court's "endorsement" inquiry is a burden of "unmistakable" clarity that JUSTICE KENNEDY apparently would require of government favoritism for specific sects in order to hold the favoritism in violation of the Establishment Clause. Post at 664-665, n. 3. The question whether a particular practice "would place the government's weight behind an obvious effort to proselytize for a particular religion," post at 661, is much the same as whether the practice demonstrates the government's support, promotion, or "endorsement" of the particular creed of a particular sect -- except to the extent that it requires an "obvious" allegiance between the government and the sect. [n56]
Our cases, however, impose no such burden on demonstrating that the government has favored a particular sect or creed. On the contrary, we have expressly required "strict [p609] scrutiny" of practices suggesting "a denominational preference," Larson v. Valente, 456 U.S. at 246, in keeping with "‘the unwavering vigilance that the Constitution requires'" against any violation of the Establishment Clause. Bowen v. Kendrick, 487 U.S. 589, 623 (1988) (O'CONNOR, J., concurring), quoting id. at 648 (dissenting opinion); see also Lynch, 465 U.S. at 694 (O'CONNOR, J., concurring) ("[T]he myriad, subtle ways in which Establishment Clause values can be eroded" necessitates "careful judicial scrutiny" of "[g]overnment practices that purport to celebrate or acknowledge events with religious significance"). Thus, when all is said and done, JUSTICE KENNEDY's effort to abandon the "endorsement" inquiry in favor of his "proselytization" test seems nothing more than an attempt to lower considerably the level of scrutiny in Establishment Clause cases. We choose, however, to adhere to the vigilance the Court has managed to maintain thus far, and to the endorsement inquiry that reflects our vigilance. [n57] [p610]
Although JUSTICE KENNEDY repeatedly accuses the Court of harboring a "latent hostility" or "callous indifference" toward religion, post at 657, 664, nothing could be further from the truth, and the accusations could be said to be as offensive as they are absurd. JUSTICE KENNEDY apparently has misperceived a respect for religious pluralism, a respect commanded by the Constitution, as hostility or indifference to religion. No misperception could be more antithetical to the values embodied in the Establishment Clause.
JUSTICE KENNEDY's accusations are shot from a weapon triggered by the following proposition: if government may celebrate the secular aspects of Christmas, then it must be allowed to celebrate the religious aspects as well because, otherwise, the government would be discriminating against citizens who celebrate Christmas as a religious, and not just a secular, holiday. Post at 663-664. This proposition, however, is flawed at its foundation. The government does not discriminate against any citizen on the basis of the citizen's religious faith if the government is secular in its functions and operations. On the contrary, the Constitution mandates that the government remain secular, rather than affiliate itself with religious beliefs or institutions, precisely in order to avoid discriminating among citizens on the basis of their religious faiths.
A secular state, it must be remembered, is not the same as an atheistic or antireligious state. A secular state establishes neither atheism nor religion as its official creed. JUSTICE KENNEDY thus has it exactly backwards when he says that enforcing the Constitution's requirement that government [p611] remain secular is a prescription of orthodoxy. Post at 678. It follows directly from the Constitution's proscription against government affiliation with religious beliefs or institutions that there is no orthodoxy on religious matters in the secular state. Although JUSTICE KENNEDY accuses the Court of "an Orwellian rewriting of history," ibid., perhaps it is JUSTICE KENNEDY himself who has slipped into a form of Orwellian newspeak when he equates the constitutional command of secular government with a prescribed orthodoxy.
To be sure, in a pluralistic society, there may be some would-be theocrats who wish that their religion were an established creed, and some of them perhaps may be even audacious enough to claim that the lack of established religion discriminates against their preferences. But this claim gets no relief, for it contradicts the fundamental premise of the Establishment Clause itself. The antidiscrimination principle inherent in the Establishment Clause necessarily means that would-be discriminators on the basis of religion cannot prevail.
For this reason, the claim that prohibiting government from celebrating Christmas as a religious holiday discriminates against Christians in favor of nonadherents must fail. Celebrating Christmas as a religious, as opposed to a secular, holiday, necessarily entails professing, proclaiming, or believing that Jesus of Nazareth, born in a manger in Bethlehem, is the Christ, the Messiah. If the government celebrates Christmas as a religious holiday (for example, by issuing an official proclamation saying: "We rejoice in the glory of Christ's birth!"), it means that the government really is declaring Jesus to be the Messiah, a specifically Christian belief. In contrast, confining the government's own celebration of Christmas to the holiday's secular aspects does not favor the religious beliefs of non-Christians over those of Christians. Rather, it simply permits the government to acknowledge the holiday without expressing an allegiance to [p612] Christian beliefs, an allegiance that would truly favor Christians over non-Christians. To be sure, some Christians may wish to see the government proclaim its allegiance to Christianity in a religious celebration of Christmas, but the Constitution does not permit the gratification of that desire, which would contradict the "‘the logic of secular liberty'" it is the purpose of the Establishment Clause to protect. See Larson v. Valente, 456 U.S. at 244, quoting B. Bailyn, The Ideological Origins of the American Revolution 265 (1967).
Of course, not all religious celebrations of Christmas located on government property violate the Establishment Clause. It obviously is not unconstitutional, for example, for a group of parishioners from a local church to go caroling through a city park on any Sunday in Advent or for a Christian club at a public university to sing carols during their Christmas meeting. Cf. Widmar v. Vincent, 454 U.S. 263 (1981). [n58] The reason is that activities of this nature do not demonstrate the government's allegiance to, or endorsement of, the Christian faith.
Equally obvious, however, is the proposition that not all proclamations of Christian faith located on government property are permitted by the Establishment Clause just because they occur during the Christmas holiday season, as the example of a Mass in the courthouse surely illustrates. And once the judgment has been made that a particular proclamation of Christian belief, when disseminated from a particular location on government property, has the effect of demonstrating the government's endorsement of Christian faith, then it necessarily follows that the practice must be enjoined to protect the constitutional rights of those citizens who follow some creed other than Christianity. It is thus incontrovertible that the Court's decision today, premised on the determination that the creche display on the Grand Staircase demonstrates [p613] the county's endorsement of Christianity, does not represent a hostility or indifference to religion but, instead, the respect for religious diversity that the Constitution requires. [n59]
The display of the Chanukah menorah in front of the City-County Building may well present a closer constitutional question. The menorah, one must recognize, is a religious symbol: it serves to commemorate the miracle of the oil as described in the Talmud. But the menorah's message is not exclusively religious. The menorah is the primary visual [p614] symbol for a holiday that, like Christmas, has both religious and secular dimensions. [n60]
Moreover, the menorah here stands next to a Christmas tree and a sign saluting liberty. While no challenge has been made here to the display of the tree and the sign, their presence is obviously relevant in determining the effect of the menorah's display. The necessary result of placing a menorah next to a Christmas tree is to create an "overall holiday setting" that represents both Christmas and Chanukah -- two holidays, not one. See Lynch, 465 U.S. at 692 (O'CONNOR, J., concurring).
The mere fact that Pittsburgh displays symbols of both Christmas and Chanukah does not end the constitutional inquiry. If the city celebrates both Christmas and Chanukah as religious holidays, then it violates the Establishment Clause. [p615] The simultaneous endorsement of Judaism and Christianity is no less constitutionally infirm than the endorsement of Christianity alone. [n61]
Conversely, if the city celebrates both Christmas and Chanukah as secular holidays, then its conduct is beyond the reach of the Establishment Clause. Because government may celebrate Christmas as a secular holiday, [n62] it follows that government may also acknowledge Chanukah as a secular holiday. Simply put, it would be a form of discrimination against Jews to allow Pittsburgh to celebrate Christmas as a cultural tradition while simultaneously disallowing the city's acknowledgment of Chanukah as a contemporaneous cultural tradition. [n63] [p616]
Accordingly, the relevant question for Establishment Clause purposes is whether the combined display of the tree, the sign, and the menorah 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. Of the two interpretations of this particular display, the latter seems far more plausible, and is also in line with Lynch. [n64]
The Christmas tree, unlike the menorah, is not itself a religious symbol. Although Christmas trees once carried religious connotations, today they typify the secular celebration of Christmas. See American Civil Liberties Union of Illinois v. St. Charles, 794 F.2d 265, 271 (CA7), cert. denied, 479 U.S. 961 (1986); L. Tribe, American Constitutional Law 1295 (2d ed.1988) (Tribe). [n65] Numerous Americans place [p617] Christmas trees in their homes without subscribing to Christian religious beliefs, and when the city's tree stands alone in front of the City-County Building, it is not considered an endorsement of Christian faith. Indeed, a 40-foot Christmas tree was one of the objects that validated the creche in Lynch. The widely accepted view of the Christmas tree as the preeminent secular symbol of the Christmas holiday season serves to emphasize the secular component of the message communicated by other elements of an accompanying holiday display, including the Chanukah menorah. [n66]
The tree, moreover, is clearly the predominant element in the city's display. The 45-foot tree occupies the central position beneath the middle archway in front of the Grant Street entrance to the City-County Building; the 18-foot menorah is positioned to one side. Given this configuration, it is much more sensible to interpret the meaning of the menorah in light of the tree, rather than vice-versa. In the shadow of the tree, the menorah is readily understood as simply a recognition that Christmas is not the only traditional way of observing the winter holiday season. In these circumstances, then, the combination of the tree and the menorah communicates not a simultaneous endorsement of both the Christian [p618] and Jewish faiths, but instead, a secular celebration of Christmas coupled with an acknowledgment of Chanukah as a contemporaneous alternative tradition.
Although the city has used a symbol with religious meaning as its representation of Chanukah, this is not a case in which the city has reasonable alternatives that are less religious in nature. It is difficult to imagine a predominantly secular symbol of Chanukah that the city could place next to its Christmas tree. An 18-foot dreidel would look out of place, and might be interpreted by some as mocking the celebration of Chanukah. The absence of a more secular alternative symbol is itself part of the context in which the city's actions must be judged in determining the likely effect of its use of the menorah. Where the government's secular message can be conveyed by two symbols, only one of which carries religious meaning, an observer reasonably might infer from the fact that the government has chosen to use the religious symbol that the government means to promote religious faith. See Abington School District v. Schempp, 374 U.S. at 295 (BRENNAN, J., concurring) (Establishment Clause forbids use of religious means to serve secular ends when secular means suffice); see also Tribe 1285. [n67] But where, as here, no such choice has been made, this inference of endorsement is not present. [n68] [p619]
The mayor's sign further diminishes the possibility that the tree and the menorah will be interpreted as a dual endorsement of Christianity and Judaism. The sign states that, during the holiday season, the city salutes liberty. Moreover, the sign draws upon the theme of light, common to both Chanukah and Christmas as winter festivals, and links that theme with this Nation's legacy of freedom, which allows an American to celebrate the holiday season in whatever way he wishes, religiously or otherwise. While no sign can disclaim an overwhelming message of endorsement, see Stone v. Graham, 449 U.S. at 41, an "explanatory plaque" may confirm that in particular contexts the government's association with a religious symbol does not represent the government's sponsorship of religious beliefs. See Lynch, 465 U.S. at 707 (BRENNAN, J., dissenting). Here, the mayor's sign serves to confirm what the context already reveals: that the display of the menorah is not an endorsement of religious faith, but simply a recognition of cultural diversity. [p620]
Given all these considerations, it is not "sufficiently likely" that residents of Pittsburgh will perceive the combined display of the tree, the sign, and the menorah as an "endorsement" or "disapproval . . . of their individual religious choices." Grand Rapids, 473 U.S. at 390. While an adjudication of the display's effect must take into account the perspective of one who is neither Christian nor Jewish, as well as of those who adhere to either of these religions, ibid., the constitutionality of its effect must also be judged according to the standard of a "reasonable observer," see Witters v. Washington Dept. of Services for Blind, 474 U.S. 481, 493 (1986) (O'CONNOR, J., concurring in part and concurring in judgment); see also Tribe 1296 (challenged government practices should be judged "from the perspective of a ‘reasonable non-adherent'"). When measured against this standard, the menorah need not be excluded from this particular display. The Christmas tree alone in the Pittsburgh location does not endorse Christian belief; and, on the facts before us, the addition of the menorah "cannot fairly be understood to" result in the simultaneous endorsement of Christian and Jewish faiths. Lynch, 465 U.S. at 693 (O'CONNOR, J., concurring). On the contrary, for purposes of the Establishment Clause, the city's overall display must be understood as conveying the city's secular recognition of different traditions for celebrating the winter-holiday season. [n69]
The conclusion here that, in this particular context, the menorah's display does not have an effect of endorsing religious [p621] faith does not foreclose the possibility that the display of the menorah might violate either the "purpose" or "entanglement" prong of the Lemon analysis. These issues were not addressed by the Court of Appeals, and may be considered by that court on remand. [n70]
Lynch v. Donnelly confirms, and in no way repudiates, the longstanding constitutional principle that government may not engage in a practice that has the effect of promoting or endorsing religious beliefs. The display of the creche in the county courthouse has this unconstitutional effect. The display of the menorah in front of the City-County Building, however, does not have this effect, given its "particular physical setting."
The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for further proceedings.
It is so ordered. [p623]
* Together with No. 88-90, Chabad v. American Civil Liberties Union et al., and No. 88-96, City of Pittsburgh v. American Civil Liberties Union, Greater Pittsburgh Chapter, et al., also on certiorari to the same court.
1. See 8 Encyclopedia of Religion, "Jesus," 15, 18 (1987).
2. See 3 Encyclopedia of Religion, "Christmas," 460 (1987). Some eastern churches, however, have not adopted December 25 as the Feast of the Nativity, retaining January 6 as the date for celebrating both the birth and the baptism of Jesus. R. Myers, Celebrations: The Complete Book of American Holidays 15, 17 (1972) (Myers).
3. "[T]he Christmas holiday in our national culture contains both secular and sectarian elements." Lynch v. Donnelly, 465 U.S. 668, 709, and n. 15 (1984) (BRENNAN, J., dissenting). It has been suggested that the cultural aspect of Christmas in this country now exceeds the theological significance of the holiday. See J. Barnett, The American Christmas, a Study in National Culture 23 (1954) (Barnett) ("[B]y the latter part of the last century, the folk-secular aspects of Christmas were taking precedence over its religious ones").
4. Luke 2:1-21; Matthew 2
5. This phrase comes from Luke, who tells of an angel appearing to the shepherds to announce the birth of the Messiah. After the angel told the shepherds that they would find the baby lying in a manger,
suddenly there was with the angel a multitude of the heavenly host praising God, and saying, Glory to God in the highest, and on earth peace, good will towards men.
Luke 2:13-14 (King James Version). It is unlikely that an observer standing at the bottom of the Grand Staircase would be able to read the text of the angel's banner from that distance, but might be able to do so from a closer vantage point.
6. On each side of the staircase was a sign indicating the direction of county offices. JEV 7-8. A small evergreen tree, decorated much like the trees behind the endposts, was placed next to each directional sign. Ibid.
7. In the arched windows behind the staircase were two large wreaths, each with a large red ribbon. Ibid.
8. See generally A. Bloch, The Biblical and Historical Background of the Jewish Holy Days 49-78 (1978) (Bloch, Holy Days); A. Bloch, The Biblical and Historical Background of Jewish Customs and Ceremonies 267-278 (1980) (Bloch, Ceremonies); 6 Encyclopedia of Religion, "Hanukkah," 193194; 7 Encyclopaedia Judaica, "Hanukkah," 1280-1288 (1972); O. Rankin, The Origins of the Festival of Hanukkah (1930) (Rankin); A. Chill, The Minhagim 241-254 (1979) (Chill); L. Trepp, The Complete Book of Jewish Observance 137-151 (1980) (Trepp); M. Strassfeld, The Jewish Holidays 161-177 (1985) (Strassfeld).
9. See Columbia Encyclopedia 1190 (4th ed.1975); J. Williams, What Americans Believe and How they Worship 348 (3d ed.1969); Myers 302; see also Strassfeld 202; see generally A. Spier, The Comprehensive Hebrew Calendar (1981).
10. See P. Johnson, A History of the Jews 104 (1987) (Johnson); R. Seltzer, Jewish People, Jewish Thought: The Jewish Experience in History 158 (1980) (Seltzer).
11. The word Chanukah, sometimes spelled Chanukkah or Hanukkah, is drawn from the Hebrew for "dedication." 7 Encyclopaedia Judaica 1280.
12. See Strassfeld 161-163; Rankin 133.
13. The Talmud (specifically the Babylonian Talmud) is a collection of rabbinic commentary on Jewish law that was compiled before the sixth century, App. 140. See 14 Encyclopedia of Religion, "Talmud," 256-259; see also Seltzer 265.
14. "Menorah" is Hebrew for "candelabrum." See 11 Encyclopaedia Judaica, "Menorah," at 1356.
15. See The Babylonian Talmud, Seder Mo'ed, 1 Shabbath 21b (Soncino Press 1938); Strassfeld 163; Trepp 143.
16. Cf. "Mitzvah," in 12 Encyclopaedia Judaica 162 (4th ed., 1972) ("In common usage, mitzvah has taken on the meaning of a good deed. Already in the Talmud, this word was used for a meritorious act, as distinct from a positive commandment"). The plural of mitzvah is mitzvot.
17. See also Bloch, Ceremonies 269. According to some Jewish authorities, the miracle of Chanukah is the success of the Maccabees over the Seleucids, rather than the fact that the oil lasted eight days. App. 141. Either way, the purpose of lighting the Chanukah candles, as a religious mitzvah, is to celebrate a miracle. Ibid.
18. Trepp 146; 7 Encyclopaedia Judaica 1283; Talmud Shabbath 21b.
19. Bloch, Ceremonies 274.
20. Another translation is
Praised are you, Lord our God, Ruler of the universe, who has sanctified our lives through His commandments, commanding us to kindle the Hanukkah lights.
21. Trepp 145; see generally 7 Encyclopaedia Judaica, "Hanukkah Lamp," 1288-1316.
22. The design of the menorah is set forth in Exodus 25:31-40; see also 11 Encyclopaedia Judaica 1356-1370.
23. Bloch, Ceremonies 274-275.
24. A Torah scroll -- which contains the five Books of Moses -- must be buried in a special manner when it is no longer usable. App. 237-238.
25. Strassfeld 167; Bloch, Ceremonies 277.
26. Id. at 277-278; Trepp 147. It is also a custom to serve potato pancakes or other fried foods on Chanukah because the oil in which they are fried is, by tradition, a reminder of the miracle of Chanukah. App. 242-243; Strassfeld 168.
27. Id. at 164
28. Trepp 144, 150; 6 Encyclopedia of Religion 193; see also Strassfeld 176. Of course, the celebration of Christmas and Chanukah in the Southern Hemisphere occurs during summer. Nonetheless, both Christmas and Chanukah first developed in the Northern Hemisphere, and have longstanding cultural associations with the beginning of winter. In fact, ancient rabbis chose Chanukah as the means to mark the beginning of winter. See Bloch, Holy Days 77.
29. See also App. 229, 237. The Court of Appeals in this litigation plainly erred when it asserted that Chanukah "is not . . . a holiday with secular aspects." 842 F.2d 655, 662 (CA3 1988). This assertion contradicts uncontroverted record evidence presented by respondents' own expert witness:
"There are also those Jews within the Jewish community who are nontheistic. . . . [T]hey base their celebration [of Chanukah] on something other than religion."
App. 143. In response to further questioning, the expert added that the celebration of Chanukah as a cultural event "certainly exists." Ibid. Thus, on this record, Chanukah unquestionably has "secular aspects," although it is also a religious holiday. See Chill 241 (Chanukah is celebrated by secular as well as religious Jews).
30. Strassfeld 164-165; see also 7 Encyclopaedia Judaica 1288.
In America, Hanukkah has been influenced by the celebration of Christmas. While a tradition of giving Hanukkah gelt -- money -- is an old one, the proximity to Christmas has made gift-giving an intrinsic part of the holiday.
In general, the attempt to create a Jewish equivalent to Christmas has given Hanukkah more significance in the festival cycle than it has had in the past.
Ibid. "Hanukkah has prospered because it comes about the same time as Christmas and can be used as the Jewish equivalent." D. Elazar, Community and Polity: The Organizational Dynamics of American Jewry 119 (1976). "Hanukkah was elaborated by American Jews to protect the child and to defend Judaism against the glamour and seductive power of Christmas." C. Liebman, The Ambivalent American Jew 66 (1973). See also M. Sklare & J. Greenblum, Jewish Identity on the Suburban Frontier 58 (1967):
The aspects of Hanukkah observance currently emphasized -- the exchange of gifts and the lighting and display of the menorah in the windows of homes -- offer ready parallels to the general mode of Christmas observance, as well as provide a
"Jewish" alternative to the holiday. Instead of alienating the Jew from the general culture, Hanukkah helps situate him as a participant in that culture. Hanukkah, in short, becomes for some the Jewish Christmas.
33. See Chill 241 (from the perspective of Jewish religious law, Chanukah is "only a minor festival").
34. Additionally, menorahs -- like Chanukah itself -- have a secular, as well as a religious, dimension. The record in this litigation contains a passing reference to the fact that menorahs "are used extensively by secular Jewish organizations to represent the Jewish people." App. 310.
35. Chabad, also known as Lubavitch, is an organization of Hasidic Jews who follow the teachings of a particular Jewish leader, the Lubavitch Rebbe. Id. at 228, 253-254. The Lubavitch movement is a branch of Hasidism, which itself is a branch of orthodox Judaism. Id. at 249-250. Pittsburgh has a total population of 45,000 Jews; of these, 100 to 150 families attend synagogue at Pittsburgh's Lubavitch Center. Id. at 247-251.
36. Respondents also sought a preliminary injunction against the display of the creche and menorah for the 1986-1987 holiday season. Characterizing the creche and menorah as "de minimis in the context of the First Amendment," the District Court, on December 15, denied respondents' motion for preliminary injunctive relief. Id. at 10.
37. Respondents, however, do not claim that the city's Christmas tree violates the Establishment Clause, and do not seek to enjoin its display. Respondents also do not claim that the county's Christmas carol program is unconstitutional. See Tr. of Oral Arg. 32.
38. In addition to agreeing with the city that the menorah's display does not violate the Establishment Clause, Chabad contends that it has a constitutional right to display the menorah in front of the City-County Building. In light of the Court's disposition of the Establishment Clause question as to the menorah, there is no need to address Chabad's contention.
39. See also M. Borden, Jews, Turks, and Infidels (1984) (charting the history of discrimination against non-Christian citizens of the United States in the 18th and 19th centuries); Laycock, "Nonpreferential" Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L.Rev. 876, 919-920 (1986) (Laycock) (the intolerance of late 18th-century Americans towards Catholics, Jews, Moslems, and atheists cannot be the basis of interpreting the Establishment Clause today).
40. A State may neither allow public school students to receive religious instruction on public school premises, Illinois ex rel. McCollum v. Board of Education of School Dist. No. 71, Champaign County, 333 U.S. 203"]333 U.S. 203 (1948), nor allow religious school students to receive state-sponsored education in their religious schools. 333 U.S. 203 (1948), nor allow religious school students to receive state-sponsored education in their religious schools. School District of Grand Rapids v. Ball, 473 U.S. 373"]473 U.S. 373 (1985). Similarly unconstitutional is state-sponsored prayer in public schools. 473 U.S. 373 (1985). Similarly unconstitutional is state-sponsored prayer in public schools. Abington School District v. Schempp, 374 U.S. 203"]374 U.S. 203 (1963); 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421"]370 U.S. 421 (1962). And the content of a public school's curriculum may not be based on a desire to promote religious beliefs. 370 U.S. 421 (1962). And the content of a public school's curriculum may not be based on a desire to promote religious beliefs. Edwards v. Aguillard, 482 U.S. 578"]482 U.S. 578 (1987); 482 U.S. 578 (1987); Epperson v. Arkansas, 393 U.S. 97"]393 U.S. 97 (1968). For the same reason, posting the Ten Commandments on the wall of a public school classroom violates the Establishment Clause. 393 U.S. 97 (1968). For the same reason, posting the Ten Commandments on the wall of a public school classroom violates the Establishment Clause. Stone v. Graham, 449 U.S. 39 (1980).
41. A statute that conditions the holding of public office on a belief in the existence of God is unconstitutional, Torcaso v. Watkins, 367 U.S. 488 (1961), as is one that grants a tax exemption for only religious literature, Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989), and one that grants an employee a right not to work on his Sabbath, Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 709-710, and n. 9 (1985) (reasoning that other employees might also have strong reasons for taking a particular day off from work each week). See also Larson v. Valente, 456 U.S. 228 (1982) (invalidating a statute that imposed registration and reporting requirements upon only those religious organizations that solicit more than 50% of their funds from nonmembers).
42. Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982).
43. See Aguilar v. Felton, 473 U.S. 402, 409 (1985); Wolman v. Walter, 433 U.S. 229, 254 (1977); Meek v. Pittenger, 421 U.S. 349, 370 (1975); Lemon v. Kurtzman, 403 U.S. 602, 619-622 (1971).
44. See, e.g., Bowen v. Kendrick, 487 U.S. 589, 602 (1988); Edwards v. Aguillard, 482 U.S. at 583; Witters v. Washington Dept. of Services for Blind, 474 U.S. 481, 485 (1986); Aguilar v. Felton, 473 U.S. at 410; School Dist. of Grand Rapids v. Ball, 473 U.S. at 382-383; Estate of Thornton v. Caldor, Inc., 472 U.S. at 708; Wallace v. Jaffree, 472 U.S. 38, 55-56 (1985); Larkin v. Grendel's Den, Inc., 459 U.S. at 123; Stone v. Graham, 449 U.S. at 40; Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 653 (1980); Meek v. Pittenger, supra; Sloan v. Lemon, 413 U.S. 825 (1973); Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 772-773 (1973); Hunt v. McNair, 413 U.S. 734, 741 (1973); Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472, 481-482 (1973).
45. There is no need here to review the applications in Lynch of the "purpose" and "entanglement" elements of the Lemon inquiry, since, in the present action, the Court of Appeals did not consider these issues.
46. The difference in approach between the Lynch majority and the concurrence is especially evident in each opinion's treatment of Marsh v. Chambers, 463 U.S. 783 (1983). In that case, the Court sustained the practice of legislative prayer based on its unique history: Congress authorized the payment of legislative chaplains during the same week that it reached final agreement on the language of the Bill of Rights. Id. at 788. The Lynch majority employed Marsh comparatively: to forbid the use of the creche
while the Congress and legislatures open sessions with prayers by paid chaplains would be a stilted overreaction contrary to our history and to our holdings.
Lynch, 465 U.S. at 686.
The concurrence, in contrast, harmonized the result in Marsh with the endorsement principle in a rigorous way, explaining that legislative prayer (like the invocation that commences each session of this Court) is a form of acknowledgment of religion that
serve[s], in the only wa[y] reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.
465 U.S. at 693. The function and history of this form of ceremonial deism suggest that "those practices are not understood as conveying government approval of particular religious beliefs." Ibid.; see also id. at 717 (BRENNAN, J., dissenting).
47. The county and the city argue that their use of religious symbols does not violate the Establishment Clause unless they are shown to be "coercive." Reply Brief for Petitioners County of Allegheny et al. 1-6; Tr. of Oral Arg. 9, 11. They recognize that this Court repeatedly has stated that "proof of coercion" is "not a necessary element of any claim under the Establishment Clause." Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. at 786; see also Abington School District v. Schempp, 374 U.S. at 222-223; Engel v. Vitale, 370 U.S. at 430. But they suggest that the Court reconsider this principle. Reply Brief for Petitioners Allegheny County et al. 3; cf. American Jewish Congress v. Chicago, 827 F.2d 120, 137 (CA7 1987) (dissenting opinion); McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L.Rev. 933 (1986). The Court declines to do so, and proceeds to apply the controlling endorsement inquiry, which does not require an independent showing of coercion.
48. The presence of Santas or other Christmas decorations elsewhere in the county courthouse, and of the nearby gallery forum, fail to negate the endorsement effect of the creche. The record demonstrates clearly that the creche, with its floral frame, was its own display distinct from any other decorations or exhibitions in the building. Tr. of Oral Arg. 7.
49. See App. 169 (religious as well as nonreligious carols were sung at the program).
50. The Grand Staircase does not appear to be the kind of location in which all were free to place their displays for weeks at a time, so that the presence of the creche in that location for over six weeks would then not serve to associate the government with the creche. Even if the Grand Staircase occasionally was used for displays other than the creche (for example, a display of flags commemorating the 25th anniversary of Israel's independence, id. at 176), it remains true that any display located there fairly may be understood to express views that receive the support and endorsement of the government. In any event, the county's own press releases made clear to the public that the county associated itself with the creche. JEV 28 (flier identifying the choral program as county sponsored); id. at 30; App. 174 (linking the creche to the choral program). Moreover, the county created a visual link between itself and the creche: it placed next to official county signs two small evergreens identical to those in the creche display. In this respect, the creche here does not raise the kind of "public forum" issue, cf. Widmar v. Vincent, 454 U.S. 263 (1981), presented by the creche in McCreary v. Stone, 739 F.2d 716 (CA2 1984), aff'd by an equally divided Court sub nom. Board of Trustees of Scarsdale v. McCreary, 471 U.S. 83 (1985) (private creche in public park).
51. Nor can the display of the creche be justified as an "accommodation" of religion. See Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987). Government efforts to accommodate religion are permissible when they remove burdens on the free exercise of religion. Id. at 348 (O'CONNOR, J., concurring in judgment). The display of a creche in a courthouse does not remove any burden on the free exercise of Christianity. Christians remain free to display creches in their homes and churches. To be sure, prohibiting the display of a creche in the courthouse deprives Christians of the satisfaction of seeing the government adopt their religious message as their own, but this kind of government affiliation with particular religious messages is precisely what the Establishment Clause precludes.
52. It is worth noting that, just because Marsh sustained the validity of legislative prayer, it does not necessarily follow that practices like proclaiming a National Day of Prayer are constitutional. See post at 672-673. Legislative prayer does not urge citizens to engage in religious practices, and, on that basis, could well be distinguishable from an exhortation from government to the people that they engage in religious conduct. But, as this practice is not before us, we express no judgment about its constitutionality.
53. Among the stories this scholar recounts is one that is especially apt in light of JUSTICE KENNEDY's citation of Thanksgiving Proclamations, post at 671:
When James H. Hammond, governor of South Carolina, announced a day of "Thanksgiving, Humiliation, and Prayer" in 1844, he . . . exhorted
our citizens of all denominations to assemble at their respective places of worship, to offer up their devotions to God their Creator, and his Son Jesus Christ, the Redeemer of the world.
The Jews of Charleston protested, charging Hammond with
such obvious discrimination and preference in the tenor of your proclamation, as amounted to an utter exclusion of a portion of the people of South Carolina.
Hammond responded that
I have always thought it a settled matter that I lived in a Christian land! And that I was the temporary chief magistrate of a Christian people. That in such a country and among such a people I should be, publicly, called to an account, reprimanded and required to make amends for acknowledging Jesus Christ as the Redeemer of the world, I would not have believed possible, if it had not come to pass.
(The Occident, January 1845).
Borden 142, n. 2 (emphasis in Borden). Thus, not all Thanksgiving proclamations fit the nonsectarian or deist mold as did those examples quoted by JUSTICE KENNEDY. Moreover, the Jews of Charleston succinctly captured the precise evil caused by such sectarian proclamations as Governor Hammond's -- they demonstrate an official preference for Christianity and a corresponding official discrimination against all non-Christians, amounting to an exclusion of a portion of the political community. It is against this very evil that the Establishment Clause, in part, is directed. Indeed, the Jews of Charleston could not better have formulated the essential concepts of the endorsement inquiry.
54. In 1776, for instance, Maryland adopted a "Declaration of Rights" that allowed its legislature to impose a tax "for the support of the Christian religion" and a requirement that all state officials declare "a belief in the Christian religion." 1 A. Stokes, Church and State in the United States 865-866 (1950). Efforts made in 1797 to remove these discriminations against non-Christians were unsuccessful. Id. at 867. See also id. at 513 (quoting the explicitly Christian proclamation of President John Adams, who urged all Americans to seek God's grace "through the Redeemer of the world" and "by His Holy Spirit").
55. JUSTICE KENNEDY evidently believes that contemporary references to exclusively Christian creeds (like the Trinity or the divinity of Jesus) in official acts or proclamations is justified by the religious sentiments of those responsible for the adoption of the First Amendment. See 2 J. Story, Commentaries on the Constitution of the United States § 1874, p. 663 (1858) (at the time of the First Amendment's adoption, "the general, if not the universal, sentiment in America was that Christianity ought to receive encouragement from the state"). This Court, however, squarely has rejected the proposition that the Establishment Clause is to be interpreted in light of any favoritism for Christianity that may have existed among the Founders of the Republic. Wallace v. Jaffree, 472 U.S. at 52.
56. In describing what would violate his "proselytization" test, JUSTICE KENNEDY uses the adjectives "permanent," "year-round," and "continual," post at 661, 664-665, n. 3, as if to suggest that temporary acts of favoritism for a particular sect do not violate the Establishment Clause. Presumably, however, JUSTICE KENNEDY does not really intend these adjectives to define the limits of his principle, since it is obvious that the government's efforts to proselytize may be of short duration, as Governor Hammond's Thanksgiving Proclamation illustrates. See n. 53, supra. In any event, the Court repudiated any notion that preferences for particular religious beliefs are permissible unless permanent when, in Bowen v. Kendrick, 487 U.S. 589, 620 (1988), it ordered an inquiry into the "specific instances of impermissible behavior" that may have occurred in the administration of a statutory program.
57. It is not clear, moreover, why JUSTICE KENNEDY thinks the display of the creche in this lawsuit is permissible even under his lax "proselytization" test. Although, early on in his opinion, he finds "no realistic risk that the creche . . . represent[s] an effort to proselytize," post at 664, at the end, he concludes: "[T]he eager proselytizer may seek to use [public creche displays] for his own ends. The urge to use them to teach or to taunt is always present." Post at 678 (emphasis added). Whatever the cause of this inconsistency, it should be obvious to all that the creche on the Grand Staircase communicates the message that Jesus is the Messiah and to be worshipped as such, an inherently prosyletizing message if ever there was one. In fact, the angel in the creche display represents, according to Christian tradition, one of the original "proselytizers" of the Christian faith: the angel who appeared to the shepherds to tell them of the birth of Christ. Thus, it would seem that JUSTICE KENNEDY should find this display unconstitutional according to a consistent application of his principle that government may not place its weight behind obvious efforts to proselytize Christian creeds specifically.
Contrary to JUSTICE KENNEDY's assertion, the Court's decision in Lynch does not foreclose this conclusion. Lynch certainly is not "dispositive of [a] claim," post at 665, regarding the government's display of a creche bearing an explicitly proselytizing sign (like "Let's all rejoice in Jesus Christ, the Redeemer of the world," cf. n. 53, supra). As much as JUSTICE KENNEDY tries, see post at 665-666, there is no hiding behind the fiction that Lynch decides the constitutionality of every possible government creche display. Once stripped of this fiction, JUSTICE KENNEDY's opinion transparently lacks a principled basis, consistent with our precedents, for asserting that the creche display here must be held constitutional.
58. Thus, JUSTICE KENNEDY is incorrect when he says, post at 674, n. 10, that the Court fails to explain why today's decision does not require the elimination of all religious Christmas music from public property.
59. In his attempt to legitimate the display of the creche on the Grand Staircase, JUSTICE KENNEDY repeatedly characterizes it as an "accommodation" of religion. See, e.g., post at 663, 664. But an accommodation of religion, in order to be permitted under the Establishment Clause, must lift "an identifiable burden on the exercise of religion." Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. at 348 (O'CONNOR, J., concurring in judgment) (emphasis in original); see also McConnell, Accommodation of Religion, 1985 S.Ct.Rev. 1, 3-4 (defining "accommodation" as government action as "specifically for the purpose of facilitating the free exercise of religion," usually by exempting religious practices from general regulations). Defined thus, the concept of accommodation plainly has no relevance to the display of the creche in this lawsuit. See n. 51, supra.
One may agree with JUSTICE KENNEDY that the scope of accommodations permissible under the Establishment Clause is larger than the scope of accommodations mandated by the Free Exercise Clause. See post at 492 U.S. 663"]663, n. 2. An example prompted by the Court's decision in 663, n. 2. An example prompted by the Court's decision in Goldman v. Weinberger, 475 U.S. 503 (1986), comes readily to mind: although the Free Exercise Clause does not require the Air Force to exempt yarmulkes from a no-headdress rule, it is at least plausible that the Establishment Clause permits the Air Force to promulgate a regulation exempting yarmulkes (and similar religiously motivated headcoverings) from its no-headdress rule. But a category of "permissible accommodations of religion not required by the Free Exercise Clause" aids the creche on the Grand Staircase not at all. Prohibiting the display of a creche at this location, it bears repeating, does not impose a burden on the practice of Christianity (except to the extent that some Christian sect seeks to be an officially approved religion), and therefore permitting the display is not an "accommodation" of religion in the conventional sense.
60. JUSTICE KENNEDY is clever but mistaken in asserting that the description of the menorah, supra, at 582-587, purports to turn the Court into a "national theology board." Post at 678. Any inquiry concerning the government's use of a religious object to determine whether that use results in an unconstitutional religious preference requires a review of the factual record concerning the religious object -- even if the inquiry is conducted pursuant to JUSTICE KENNEDY's "proselytization" test. Surely JUSTICE KENNEDY cannot mean that this Court must keep itself in ignorance of the symbol's conventional use and decide the constitutional question knowing only what it knew before the case was filed. This prescription of ignorance obviously would bias this Court according to the religious and cultural backgrounds of its Members, a condition much more intolerable than any which results from the Court's efforts to become familiar with the relevant facts.
Moreover, the relevant facts concerning Chanukah and the menorah are largely to be found in the record, as indicated by the extensive citation to the Appendix, supra at 582-585. In any event, Members of this Court have not hesitated in referring to secondary sources in aid of their Establishment Clause analysis, see, e.g., Lynch, 465 U.S. at 709-712, 721-724 (BRENNAN, J., dissenting), because the question "whether a government activity communicates an endorsement of religion" is "in large part a legal question to be answered on the basis of judicial interpretation of social facts," id. at 693-694 (O'CONNOR, J., concurring).
61. The display of a menorah next to a creche on government property might prove to be invalid. Cf. Greater Houston Chapter of American Civil Liberties Union v. Eckels, 589 F.Supp. 222 (SD Tex.1984), appeal dism'd, 755 F.2d 426 (CA5), cert. denied, 474 U.S. 980 (1985) (war memorial containing crosses and a Star of David unconstitutionally favored Christianity and Judaism, discriminating against the beliefs of patriotic soldiers who were neither Christian nor Jewish).
62. It is worth recalling here that no Member of the Court in Lynch suggested that government may not celebrate the secular aspects of Christmas. On the contrary, the four dissenters there stated:
If public officials . . . participate in the secular celebration 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.
465 U.S. at 710-711 (BRENNAN, J., dissenting) (emphasis in original).
63. Thus, to take the most obvious of examples, if it were permissible for the city to display in front of the City-County Building a banner exclaiming "Merry Christmas," then it would also be permissible for the city to display in the same location a banner proclaiming "Happy Chanukah."
JUSTICE BRENNAN, however, seems to suggest that even this practice is problematic, because holidays associated with other religious traditions would be excluded. See post at 664. But when the government engages in the secular celebration of Christmas, without any reference to holidays celebrated by non-Christians, other traditions are excluded -- and yet JUSTICE BRENNAN has approved the government's secular celebration of Christmas. See n. 62, supra.
64. It is distinctly implausible to view the combined display of the tree, the sign, and the menorah as endorsing the Jewish faith alone. During the time of this litigation, Pittsburgh had a population of 387,000, of which approximately 45,000 were Jews. U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 34 (108th ed.1988); App. 247. When a city like Pittsburgh places a symbol of Chanukah next to a symbol of Christmas, the result may be a simultaneous endorsement of Christianity and Judaism (depending upon the circumstances of the display). But the city's addition of a visual representation of Chanukah to its preexisting Christmas display cannot reasonably be understood as an endorsement of Jewish -- yet not Christian -- belief. Thus, unless the combined Christmas-Chanukah display fairly can be seen as a double endorsement of Christian and Jewish faiths, it must be viewed as celebrating both holidays without endorsing either faith.
The conclusion that Pittsburgh's combined Christmas-Chanukah display cannot be interpreted as endorsing Judaism alone does not mean, however, that it is implausible, as a general matter, for a city like Pittsburgh to endorse a minority faith. The display of a menorah alone might well have that effect.
65. See also Barnett 141-142 (describing the Christmas tree, along with gift giving and Santa Claus, as those aspects of Christmas which have become "so intimately identified with national life" that immigrants feel the need to adopt these customs in order to be a part of American culture). Of course, the tree is capable of taking on a religious significance if it is decorated with religious symbols. Cf. Gilbert, The Season of Good Will and Inter-religious Tension, 24 Reconstructionist 13 (1958) (considering the Christmas tree, without the Star of Bethlehem, as one of "the cultural aspects of the Christmas celebration").
66. Although the Christmas tree represents the secular celebration of Christmas, its very association with Christmas (a holiday with religious dimensions) makes it conceivable that the tree might be seen as representing Christian religion when displayed next to an object associated with Jewish religion. For this reason, I agree with JUSTICE BRENNAN and JUSTICE STEVENS that one must ask whether the tree and the menorah together endorse the religious beliefs of Christians and Jews. For the reasons stated in the text, however, I conclude the city's overall display does not have this impermissible effect.
67. Contrary to the assertions of JUSTICE O'CONNOR and JUSTICE KENNEDY, I have not suggested here that the government's failure to use an available secular alternative necessarily results in an Establishment Clause violation. Rather, it suffices to say that the availability or unavailability of secular alternatives is an obvious factor to be considered in deciding whether the government's use of a religious symbol amounts to an endorsement of religious faith.
68. In Lynch, in contrast, there was no need for Pawtucket to include a creche in order to convey a secular message about Christmas. See 465 U.S. at 726-727 (BLACKMUN, J., dissenting). Thus, unless the addition of the creche to the Pawtucket display was recognized as an endorsement of Christian faith, the creche there was "relegated to the role of a neutral harbinger of the holiday season," id. at 727, serving no function different from that performed by the secular symbols of Christmas. But the same cannot be said of the addition of the menorah to the Pittsburgh display. The inclusion of the menorah here broadens the Pittsburgh display to refer not only to Christmas but also to Chanukah -- a different holiday belonging to a different tradition. It does not demean Jewish faith or the religious significance of the menorah to say that the menorah in this context represents the holiday of Chanukah as a whole (with religious and secular aspects), just as the Christmas tree in this context can be said to represent the holiday of Christmas as a whole (with its religious and secular aspects).
Thus, the menorah retains its religious significance even in this display, but it does not follow that the city has endorsed religious belief over nonbelief. In displaying the menorah next to the tree, the city has demonstrated no preference for the religious celebration of the holiday season. This conclusion, however, would be untenable had the city substituted a creche for its Christmas tree or if the city had failed to substitute for the menorah an alternative, more secular, representation of Chanukah.
69. This is not to say that the combined display of a Christmas tree and a menorah is constitutional wherever it may be located on government property. For example, when located in a public school, such a display might raise additional constitutional considerations. Cf. Edwards v. Aguillard, 482 U.S. at 583-584 (Establishment Clause must be applied with special sensitivity in the public school context).
70. In addition, nothing in this opinion forecloses the possibility that on other facts a menorah display could constitute an impermissible endorsement of religion. Indeed, there is some evidence in this record that, in the past, Chabad lit the menorah in front of the City-County Building in a religious ceremony that included the recitation of traditional religious blessings. See App. 281. Respondents, however, did not challenge this practice, there are no factual findings on it, and the Court of Appeals did not consider it in deciding that the display of a menorah in this location necessarily endorses Judaism. See 842 F.2d at 662.