There is a coldness in the air. Thanksgiving is rushing forward. And people are beginning to plan, not their holiday shopping, but how they are going to put the particular symbols of their religion, a Nativity scene or menorah, on the local courthouse lawn.
The change in the air seems to have the exact opposite effect on lawyers: Those concerned with what Thomas Jefferson called the “wall of separation” between church and state start planning lawsuits against religious symbols erected on public land.
It’s the annual holiday pas de deux.
Jefferson and fellow framer James Madison had plenty of reason to fear government power endorsing a particular religion. The official religions of the European nations, Catholic and protestant, had been burning and racking heretics for centuries. Popes allegedly were murdered, and popes without a doubt inspired assassination plots of their own.
Elementary school history books say the Puritans came to the New World in search of religious freedom. Jefferson and Madison knew better: The Puritans just wanted their own community away from Europe so they could become intolerant oppressors themselves, shunning dissenters from the community and burning the occasional witch.
So the Founding Fathers, children of the Enlightenment almost to a man, decided to lead off their Bill of Rights with the “establishment clause” of the First Amendment, trying to keep religion at a distance: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
But did the Founding Fathers really mean to ban authority-controlled prayer from public schools – as opposed to a student’s quiet desperate appeal to the deity before a test – or the Our Father from high school football games? Did they really mean to keep symbols of the season, and all they contribute to the season’s beauty, from prominent venues in the community just because those venues are public property?
Lawyers and judges looking for guidance from the U.S. Supreme Court – now composed of six Catholics, two Jews and a Protestant – sometimes say they are confused by the court’s precedents on recurring displays. The court has seemed to approach the separation of church and state on a case-by-case basis instead of using some single overarching principle.
The venerable “Lemon test” – from 1971’s Lemon vs. Kurtzman – is getting shopworn and often does not seem to be a player in the game of determining an unconstitutional government action. The three prongs of the test: Does a government action have a secular purpose? Does the action advance or inhibit religion? Does it result in “excessive … entanglement” with religion?
When lawyers look to Supreme Court precedents on Christmas or Hanukkah displays, they usually turn to 1984’s Lynch vs. Donnelly and 1989’s Allegheny County vs. ACLU.
In Lynch, a 5-4 high court majority ruled the city of Pawtucket, R.I., did not violate the First Amendment by erecting a Christmas display in the heart of its shopping district.
“The concept of a ‘wall’ of separation between church and state is a useful metaphor but is not an accurate description of the practical aspects of the relationship that in fact exists,” Chief Justice Warren Burger wrote in the syllabus of the majority opinion. “The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. Anything less would require the ‘callous indifference’ … that was never intended by the establishment clause.”
Burger cited the use of chaplains in the first sittings of Congress, and added, “Rather than taking an absolutist approach in applying the establishment clause and mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith, this court has scrutinized challenged conduct or legislation to determine whether, in reality, it establishes a religion or religious faith or tends to do so. In the line-drawing process called for in each case, it has often been found useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion. But this court has been unwilling to be confined to any single test or criterion in this sensitive area.”
So much for Lynch, but what about Allegheny County?
In that case, there were two recurring holiday displays in downtown Pittsburgh: a Nativity scene placed on the Grand Staircase of the Allegheny County Courthouse, donated by the Catholic Holy Name Society, with an angel carrying a banner proclaiming “Gloria in Excelsis Deo,” and an 18-foot Hanukkah menorah, or candlelabrum, placed just outside the city-county building next to a 45-foot Christmas tree. At the foot of the tree was a sign proclaiming a “salute to liberty.” The menorah was owned by Chabad, a Jewish group, but was stored, erected and removed each year by the city.
The Supreme Court ruling in the case was all over the map. Justice Harry Blackmun, joined by four other justices and citing Lemon, said the Nativity scene in Pittsburgh violated the establishment clause.
“The creche angel’s words endorse a patently Christian message: Glory to God for the birth of Jesus Christ,” Blackmun wrote. “Moreover, in contrast to Lynch, nothing in the creche’s setting detracts from that message. Although the government may acknowledge Christmas as a cultural phenomenon, it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus.”
Justice Anthony Kennedy, a key swing vote on the high court today, dissented to Blackmun’s analysis in Allegheny County: “The Constitution mandates that the government remain secular, rather than affiliating itself with religious beliefs or institutions, precisely in order to avoid discriminating against citizens on the basis of their religious faiths. Thus, the claim that prohibiting government from celebrating Christmas as a religious holiday discriminates against Christians in favor of non-adherents must fail, since it contradicts the fundamental premise of the establishment clause itself.”
Twenty years after Allegheny County, Kennedy would have great influence on how the high court rules on any future challenge to a Nativity scene on government property.
Which left the question of the menorah. Blackmun concluded the menorah did not have the prohibited effect of endorsing religion because of its “particular physical setting.” The combined display with a Christmas tree and a sign saluting liberty simply recognizes that Christmas and Hanukkah are part of the same winter-holiday season, Blackmun said, which has a secular status in modern society.
The other justices agreed with and dissented to bits and pieces of Blackmun’s opinion in a mosaic that gave the lower courts little to chew on.
Interestingly, a case that never reached the Supreme Court may indicate how one of its current members may vote in some future challenge to religious holiday displays.
ACLU vs. Schindler was decided at the appeals court level in Philadelphia in 1999. The case involved a Nativity scene, a menorah and a holiday tree owned by Jersey City, N.J. The city had been using the symbols in holiday displays for 30 years.
The appeals court, using Allegheny County, ruled against both sides. The court ruled a holiday display entirely consisting of religious symbols violates the establishment clause. But the court said if religious symbols were placed in a secular context – the city added Santa Claus, a 4-foot-tall plastic Frosty the Snowman and a red wooden sled after losing the case at the trial level – then the display was permissible.
The author of the appeals court opinion? Then U.S. Circuit Judge Samuel Alito, who joined the Supreme Court in the 2005 term when Justice Sandra Day O’Connor retired.
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