Can a city courthouse put up a nativity scene at Christmas time? Can a government building display a menorah? These questions and more have been put before the Supreme Court, which has had to decide when and how religious symbols can be displayed on government property.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
A different form of governmentally sanctioned religious observance—inclusion of religious symbols in governmentally sponsored holiday displays—has yielded varying results before the Court. In 1984, in Lynch v. Donnelly,1 the Court found that the Establishment Clause was not violated by the inclusion of a Nativity scene (creche) in a city’s Christmas display. In 1989, in Allegheny County v. Greater Pittsburgh ACLU,2 inclusion of a creche in a holiday display was found to constitute a violation. Also at issue in Allegheny County was inclusion of a menorah in a holiday display. Here the Court found no violation. The setting of each display was crucial to the different results in these cases, the determinant being whether the Court majority believed that the overall effect of the display was to emphasize the religious nature of the symbols, or whether instead, the emphasis was primarily secular.
Perhaps equally important for future cases, however, was the fact that the four dissenters in Allegheny County would have upheld both the creche and menorah displays under a more relaxed, deferential standard.
Chief Justice Burger’s opinion for the Court in Lynch began by expanding on the religious heritage theme exemplified by Marsh; other evidence that ‘[w]e are a religious people whose institutions presuppose a Supreme Being’3 was supplied by reference to the national motto “In God We Trust,” the affirmation one nation under God in the pledge of allegiance, and the recognition of both Thanksgiving and Christmas as national holidays.
Against that background, the Court then determined that the city’s inclusion of the creche in its Christmas display had a legitimate secular purpose in recognizing the historical origins of this traditional event long recognized as a National Holiday,4 and that its primary effect was not to advance religion.
The benefit to religion was called indirect, remote, and incidental, and in any event no greater than the benefit resulting from other actions that had been found to be permissible, such as the provision of transportation and textbooks to parochial school students, various assistance to church-supported colleges, Sunday closing laws, and legislative prayers.5 The Court also reversed the lower court’s finding of entanglement based only on political divisiveness.6
Allegheny County was also decided by a 5-4 vote, Justice Blackmun writing the opinion of the Court on the creche issue, and there being no opinion of the Court on the menorah issue.7 To the majority, the setting of the creche was distinguishable from that in Lynch. The creche stood alone on the center staircase of the county courthouse, bore a sign identifying it as the donation of a Roman Catholic group, and also had an angel holding a banner proclaiming "Gloria in Exclesis Deo." Nothing in the display "detract[ed] from the creche’s religious message, and the overall effect was to endorse that religious message."8
The menorah, on the other hand, was placed outside a government building alongside a Christmas tree and a sign saluting liberty and bore no religious messages. To Justice Blackmun, this grouping merely recognized that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status.9
To concurring Justice O’Connor, the display’s message of pluralism did not endorse religion over nonreligion even though Chanukah is primarily a religious holiday and even though the menorah is a religious symbol.10 The dissenters, critical of the endorsement test proposed by Justice O’Connor and of the three-part Lemon test, would instead distill two principles from the Establishment Clause:
In Capitol Square Review Bd. v. Pinette,12 the Court distinguished privately sponsored from governmentally sponsored religious displays on public property. There, the Court ruled that Ohio violated free speech rights by refusing to allow the Ku Klux Klan to display an unattended cross in a publicly owned plaza outside the Ohio Statehouse.
Because the plaza was a public forum in which the state had allowed a broad range of speakers and a variety of unattended displays, the state could regulate the expressive content of such speeches and displays only if the restriction was necessary, and narrowly drawn, to serve a compelling state interest. The Court recognized that compliance with the Establishment Clause can be a sufficiently compelling reason to justify content-based restrictions on speech, but saw no need to apply this principle when permission to display a religious symbol is granted through the same procedures, and on the same terms, required of other private groups seeking to convey non-religious messages.
Displays of the Ten Commandments on government property occasioned two decisions in 2005. As in Allegheny County, a closely divided Court determined that one display violated the Establishment Clause and one did not. And again, context and imputed purpose made the difference.
The Court struck down display of the Ten Commandments in courthouses in two Kentucky counties,13 but held that a display on the grounds of the Texas State Capitol was permissible.14 The displays in the Kentucky courthouses originally stood alone, not part of an arguably secular display.15 Moreover, the history of the displays revealed a predominantly religious purpose that had not been eliminated by steps taken to give the appearance of secular objectives.16
There was no opinion of the Court in Van Orden. Justice Breyer, the swing vote in the two cases,17 distinguished the Texas Capitol grounds display from the Kentucky courthouse displays. In some contexts, the Ten Commandments can convey a moral and historical message as well as a religious one, the Justice explained.
Although it was a borderline case turning on a practical matter of degree, the capitol display served a primarily nonreligious purpose.18 The monument displaying the Ten Commandments was one of 17 monuments and 21 historical markers on the Capitol grounds. It was paid for by a private, civic, and primarily secular organization; and it had been in place, unchallenged, for 40 years.
Under the circumstances, Justice Breyer thought that few would be likely to understand the monument to represent an attempt by government to favor religion.19 A plurality of the Court would have used a different analysis to uphold the monument. Chief Justice Rehnquist argued that the Lemon test was not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds.20 Instead, the plurality’s decision was driven both by the nature of the monument and by our Nation’s history.21
The Court has also considered an Establishment Clause challenge to the display of a Latin Cross—erected to honor American soldiers who died in World War I—on federal land located in a remote section of the Mojave Desert.22 The legal proceedings leading up to the decision, however, were complicated by congressional attempts to influence the final disposition of the case, including the attempted transfer of the federal land in question to private hands.23 As a result, a splintered Court failed to reach the merits of the underlying challenge, and instead remanded the case for further consideration.24
The Supreme Court considered the constitutionality of another Latin Cross erected as a World War I memorial in American Legion v. American Humanist Association.25
In upholding the memorial, Justice Alito’s opinion for the Court relied on some of the factors highlighted by Justice Breyer’s concurring opinion in Van Orden—namely, the fact that this particular monument had stood undisturbed for nearly a century26 and had acquired historical importance to the community.27
The majority opinion said that while the cross is a Christian symbol, that symbol took on an added secular meaning when used in World War I memorials.28 Under these circumstances, the Court concluded that requiring the state to destroy or deface the cross would not be neutral with respect to religion and would not further the ideals of respect and tolerance embodied in the First Amendment.29
More broadly, however, in American Legion, a majority of the Justices limited Lemon’s scope. Writing for a four-justice plurality, Justice Alito declared that several considerations counseled against applying the Lemon test to longstanding monuments, symbols, and practices,30 saying that they should instead be considered constitutional so long as they follow in a historical tradition of religious accommodation.31
Justices Thomas and Gorsuch wrote separate concurrences disapproving of Lemon more generally, expressing their own views on how courts should evaluate Establishment Clause claims.32 Therefore, a majority of Justices—the plurality, plus Justices Thomas and Gorsuch—voted to limit Lemon’s applicability in future cases involving the constitutionality of religious displays on government land.
1. 465 U.S. 668 (1984). Lynch was a 5-4 decision, with Justice Blackmun, who voted with the majority in Marsh, joining the Marsh dissenters in this case. Again, Chief Justice Burger wrote the opinion of the Court, joined by the other majority Justices, and again Justice Brennan wrote a dissent, joined by the other dissenters. A concurring opinion was added by Justice O’Connor, and a dissenting opinion was added by Justice Blackmun.
2. 492 U.S. 573 (1989).
3. 465 U.S. at 675, quoting Zorach v. Clausen, 343 U.S. 306, 313 (1952).
4. 465 U.S. at 680.
5. 465 U.S. at 681–82. Although the extent of benefit to religion was an important factor in earlier cases, it was usually balanced against the secular effect of the same practice rather than the religious effects of other practices.
6. 465 U.S. at 683–84.
7. Justice O’Connor, who had concurred in Lynch, was the pivotal vote, joining the Lynch dissenters to form the majority in Allegheny County. Justices Scalia and Kennedy, not on the Court in 1984, replaced Chief Justice Burger and Justice Powell in voting to uphold the creche display; Justice Kennedy authored the dissenting opinion, joined by the other three.
8. 492 U.S. at 598, 600.
9. 492 U.S. at 616.
10. 492 U.S. at 635.
11. 492 U.S. at 659.
12. 515 U.S. 753 (1995). The Court was divided 7-2 on the merits of Pinette, a vote that obscured continuing disagreement over analytical approach. The portions of Justice Scalia’s opinion that formed the opinion of the Court were joined by Chief Justice Rehnquist and by Justices O’Connor, Kennedy, Souter, Thomas, and Breyer. A separate part of Justice Scalia’s opinion, joined only by the Chief Justice and by Justices Kennedy and Thomas, disputed the assertions of Justices O’Connor, Souter, and Breyer that the endorsement test should be applied. Dissenting Justice Stevens thought that allowing the display on the Capitol grounds did carry a clear image of endorsement (id. at 811), and Justice Ginsburg’s brief opinion seemingly agreed with that conclusion.
15. 545 U.S. at 868. The Court in its previous Ten Commandments case, Stone v. Graham, 449 U.S. 39, 41 (1980) (invalidating display in public school classrooms) had concluded that the Ten Commandments are undeniably a sacred text, and the 2005 Court accepted that characterization. McCreary, 545 U.S. at 859.
16. 545 U.S. at 881. An indisputable religious purpose was evident in the resolutions authorizing a second display, and the Court characterized statements of purpose accompanying authorization of the third displays as only . . . a litigating position. 545 U.S. at 870, 871.
17. Only Justice Breyer voted to invalidate the courthouse displays and uphold the capitol grounds display. The other eight Justices were split evenly, four (Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas) voting to uphold both displays, and four (Justices Stevens, O’Connor, Souter, and Ginsburg) voting to invalidate both.
18. 545 U.S. at 700, 704, 703.
19. 545 U.S. at 702. In Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1140 (2009), Justice Scalia, in a concurring opinion joined by Justice Thomas, wrote that, [e]ven accepting the narrowest reading of the narrowest opinion necessary to the judgment in Van Orden, he would find that a Ten Commandments monument displayed in a Utah public park for 38 years amidst 15 permanent displays would not violate the Establishment Clause, even though the monument constituted government speech. The majority opinion did not consider the question, but decided the case on free-speech grounds. See The Public Forum, infra.
20. Id. at 685 (plurality opinion).
23. During the course of the litigation, Congress variously passed an appropriations bill forbidding the use of governmental funds to remove the cross, designating the cross and its adjoining land as a national memorial, prohibitng the spending of governmental funds to remove the cross, and directing the Secretary of the Interior to transfer the land to the Veterans of Foreign Wars (VFW) as long as the property was maintained as a memorial commemorating World War I veterans. A federal court of appeals ordered the removal of the cross, holding that a reasonable observer would perceive a cross on federal land as governmental endorsement of religion, Buono v. Norton, 371 F.3d 543 (9th Cir. 2004), and the government did not seek review of this decision. Subsequently, the court of appeals affirmed a lower court injunction against the transfer of land to the VFW, holding that the underlying statute was an invalid attempt to keep the cross in its existing location. Buono v. Kempthorne, 502 F.3d 1069 (9th Cir. 2007).
24. Justice Kennedy, joined in full by Chief Justice Roberts and in part by Justice Alito, found that the plaintiff, based on the existing injunction, had standing to challenge the land transfer. The case, however, was remanded to the district court to consider the legitimate congressional interest in reconciling Establishment Clause concerns with respect for the commemoration of military veterans, id. at 10–13, and to evaluate whether the land transfer would lead a reasonable observer to perceive government endorsement of religion. Id. at 16–17. Justice Alito would have upheld the land transfer, suggesting that a reasonable observer deemed to be aware of the history and all other pertinent facts relating to a challenged display would not find the transfer to be an endorsement of religion. Id. at 6 (Alito, J., concurring in part and in judgement). Justice Scalia, joined by Justice Thomas, held that the plaintiff had no standing to seek the expansion of the existing injunction to the display of the cross on private lands. Id. at 3–6 (Scalia, J., concurring in judgement).
25. 588 U.S. ____, Nos. 17–1717, 18–18 (2019).
26. Id. at 31.
27. Id. at 28.
29. Id. at 31.
30. Id. at 16 (plurality opinion).
31. Id. at 28.
32. Id. at 6 (Thomas, J., concurring) (I would . . . overrule the Lemon test in all contexts.); id. at 7 (Gorsuch, J., concurring) (Lemon was a misadventure.). Justice Kavanaugh also concurred and suggested that he would no longer apply Lemon in any case, although he had joined the plurality opinion. See id. at 1 (Kavanaugh, J., concurring) ([T]his Court no longer applies the old test articulated in Lemon . . . .);