Religious Symbols and Displays on Government Property

The Bill of Rights consists of the first ten amendments to the U.S. Constitution. They were established to safeguard individual freedoms and constrain governmental power in America.

The First Amendment reflects these democratic ideals. Its religion clauses read:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

Both clauses protect religious freedom. The Establishment Clause does this by prohibiting the government from:

• Establishing an official religion
• Favoring one or more religions over others
• Favoring religion over nonreligion

The free exercise clause protects the right to practice any religion one chooses, as well as the right to practice no religion at all.

Other First Amendment Freedoms

In addition to the freedom of religion, the First Amendment establishes constitutional rights to the freedoms of:

• Speech
• The press
• Assembly
• Petition

The wording of the First Amendment explicitly prohibits Congress from passing laws that restrict these freedoms.

Interpretation of the First Amendment

As the Constitution’s ultimate authority and interpreter, the U.S. Supreme Court has determined this prohibition extends beyond Congress. With the adoption of the Fourteenth Amendment and the incorporation doctrine, the Supreme Court has declared that the First Amendment applies to all forms of government action at every level. Essentially, the government is prohibited from infringing upon these First Amendment freedoms.

Of course, these rights are not absolute.  

Applicability of the First Amendment

First Amendment constraints primarily apply to government restrictions on the rights of private parties. They don’t apply to government regulation of government speech. And they don’t generally limit restrictions imposed by private parties.

For example, peaceful protests are a form of expression protected by the First Amendment. The government may have legitimate reasons for implementing regulations burdening these rights. For example, a town may have a local ordinance restricting when public speeches may occur on the town square to maintain public safety and order.

However, government regulation of protests on public property is subject to First Amendment constraints. If a time, place, and manner restriction such as this is content-neutral, the courts will generally uphold it as constitutional.

Private property owners can restrict or even prohibit protests on their property. The First Amendment does not apply.

Legal Standards

The Supreme Court has developed legal standards and frameworks for evaluating whether a government restriction is consistent with the First Amendment. They tend to weigh the government interest served by the restriction against the First Amendment rights burdened by it.

In this context, we often refer to government interest as state interest. For example, strict scrutiny is the most difficult standard to meet. It requires a government restriction on First Amendment rights to serve a compelling state interest in the least restrictive manner available.

The Lemon Test

In 1971, the Supreme Court set forth the standard for evaluating whether government action violates the Establishment Clause of the First Amendment. In Lemon v. Kurtzman, the Court established what we now refer to as the three-pronged Lemon test. It requires government action, also known as state action, to:

• Serve a primary purpose that’s secular
• Not promote or hinder religion
• Not excessively entangle church and state

Government action that fails to meet one or more of these criteria is considered an unconstitutional violation of the establishment clause.

Religion in Public Schools

Issues related to religious activities and symbols in government buildings or on public property often arise in public school and university settings. This is because the government generally funds and operates public schools and school districts.

Their actions, practices, and policies are considered state actions subject to First Amendment constraints. Accordingly, the Court has generally restricted:

• Religious practices like Bible readings at school-sponsored events
• Displays of religious symbols like the Ten Commandments in the classroom

Concerning religious symbols on other government property, the Supreme Court decisions are many. The clarity we glean from them, however, is somewhat limited.

Lynch v. Donnelly

In Lynch v. Donnelly (1984), the Court reviewed a city-owned Christmas display on public property in a shopping area. It included Santa, his reindeer, and a nativity scene known as a crèche. In a narrow 5-4 majority, the Court determined that including the crèche didn’t violate the establishment clause.

The Court acknowledged that absolute separation of church and state isn’t always an option, and the Constitution does not require it. Rather, the Constitution demands tolerance and accommodation for all religions and bans hostility toward any.

The Court explained that the city sponsored the display for legitimate secular purposes, such as portraying the origins of Christmas and celebrating the holiday. As such, the primary effect of including the crèche in the holiday display wasn’t to promote religion.

Allegheny County v. Greater Pittsburgh ACLU

But five years later, in Allegheny County v. Greater Pittsburgh ACLU, the Court narrowly held that a nativity scene depicting Jesus Christ’s birth inside a county courthouse violated the Establishment Clause. In addition to the crèche, the courthouse display included an angel holding a banner. The banner read "Glory to God in the highest” in Latin.

The standalone display also featured a sign crediting the Roman Catholic group that donated it. In this case, the Court determined that the display's overall effect was to advance the banner’s religious message.

It also clarified that not all religious displays on government property violate the Establishment Clause. It distinguished the courthouse setting of the nativity scene from that of a Jewish Hanukkah menorah displayed outside another public building. In addition to the menorah, the holiday display included a Christmas tree, a sign about liberty, and no religious messaging.

The Court explained that the overall effect of the courthouse crèche was to emphasize its religious aspects.

Conversely, the specific display and setting of the menorah had an overall predominantly secular effect. That is, both Christmas and Hanukkah are part of the winter holiday season.

In her concurring opinion, Justice O’Connor applied an endorsement test. In doing so, she concluded that the outdoor display didn’t endorse religion over nonreligion, even though it included religious symbols. Rather, its message was pluralism, the peaceful coexistence of diverse belief systems.

Justice Kennedy penned a dissent recommending against using either the endorsement test or the Lemon test. Instead, it highlighted two principles underlying the establishment clause. Specifically, the government can’t:

• Force anyone to support a religion or take part in religious activities, or
• Confer a direct benefit to religion under the guise of preventing hostility toward any religion — to the extent that it establishes an official religion or tends to do so.

Chief Justice Burger, along with Justices White and Scalia, joined in the dissent.

Capitol Square Review Bd. v. Pinette

In Capitol Square Review Bd. v. Pinette (1995), the Court upheld the KKK’s ability to display a cross on a public plaza outside a state courthouse. It distinguished private displays on government property from state-sponsored ones.

As a public forum, the state had permitted a variety of private speeches and displays on the plaza. The First Amendment right to free speech protects such displays and speeches. As such, any content-based restrictions on them must be narrowly tailored to serve a compelling government interest.

Under these circumstances, the Court found such a restriction wasn’t necessary because the state followed the same procedures and rules for allowing religious symbols at the plaza as it did for non-religious expression by private entities.

In McCreary County v. American Civil Liberties Union (ACLU) of Kentucky (2005), the Court narrowly held that the Ten Commandments displayed in two Kentucky courthouses violated the Establishment Clause. It reasoned that these standalone displays historically served a primarily religious purpose.

Another narrow decision in Van Orden v. Perry (2005) held differently. The Van Orden Court determined that a Ten Commandments monument on state capitol grounds in Texas didn’t violate the Establishment Clause.

Justice Breyer was the deciding vote in both McCreary and Van Orden. He explained that Ten Commandment displays communicate more than religious messages; they can also convey historical and moral messages.

According to Justice Breyer, the Texas display served a predominantly nonreligious purpose. It was one of many monuments and historical markers on state capitol grounds.

A private and largely secular civic group funded the display, and it hadn’t before been challenged in the forty years it had been there. Breyer explained that under these circumstances, the display would rarely be perceived as an attempt by the state to promote religion.

American Legion v. American Humanist Association

In American Legion v. American Humanist Association (2019) the Court reviewed another establishment clause challenge. Here, a Latin Cross had been erected on public land along a highway in a Washington D.C. suburb of Maryland.

Also known as the Bladensburg Cross, it was a World War I memorial that had remained undisturbed for almost a century until the Association brought suit in district court. The lower court found the cross’s placement on public land to be constitutional. The Fourth Circuit Court of Appeals reversed, holding that state-funded preservation and maintenance of the memorial on government land was unconstitutional.

However, the Supreme Court affirmed the constitutionality of the Bladensburg Cross. The Court clarified that the memorial has gained a significance that transcends its identity as a symbol of Christianity.

Like other Latin crosses erected as World War I memorials, this one had secular and historical significance for the community. Thus, requiring the state to destroy or alter it contradicted the principle of government neutrality. It also offended the notions of tolerance and respect underlying the First Amendment.

Justice Alito penned the plurality opinion of the Court. He was joined by Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh. The opinion advised against the use of the Lemon test for longstanding religious monuments, practices, symbols, and memorials.

Rather, the plurality favored the constitutionality of these to the extent they follow tradition “in respecting and tolerating different views, endeavoring to achieve inclusivity and nondiscrimination, and recognizing the important role religion plays in the lives of many Americans…”

Justices Thomas and Gorsuch penned concurring opinions in which they also recommended against use of the Lemon test for evaluating the constitutionality of religious symbols or displays on public land.

The Supreme Court has acknowledged that the First Amendment's clauses on religion are not the most precisely articulated. Nevertheless, they set forth the goals for the religious liberty that the Framers intended.

The Supreme Court has strived to remain true to these goals while assessing the constitutionality of religious symbols on public property. The resulting establishment clause jurisprudence is fluid and highly dependent on the specifics of each case, yet it offers essential insights into fundamental Constitutional tenets.