Religious Displays on Public Property:
A Look at The Establishment Clause and Current Case Law
The First Amendment / The Wall of Separation / The Lemon Test / Supreme Court Cases / Lynch v. Donnelly / Allegheny County v. ACLU /
Capital Square Review Board v. Pinette / The ACLU Stance
Amendment I of the United States Constitution, often referred to as the "Establishment Clause’, states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
"Once the government becomes involved with religion and acquires the power to promote religious beliefs, it also acquires the power to supress them. The way to ensure religious freedom [for the creators of the Bill of Rights] was to separate church and state so government could not interfere with religious views and practices." (ACLU, Briefing Paper #3). Thomas Jefferson referred to this practice as the creation of a "wall of separation between chuch and state," and the U.S. Supreme Court has set up these guidelines towards the fulfullment of this practice (Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947).
Neither state or local government:
To assist both themselves and the lower courts on decisions in these matters, it must first be determined if the act of the governmental body (whether law or conduct) can and should be considered as a violation of the establishment clause, and the three part test for this is taken from the case of Lemon v. Kurtzman, 403 U.S. 602 (1971).
This test has not proved to be easy to apply, and has allowed decisions of all kinds by the lower courts, as it is possible to make a contrary decision on the same set of circumstances with a different panel of judges, according to Stephen Carter, Professor of Law at Yale University, in his book Culture of Disbelief. . Sandra Day O’Connor, in her partial concurrence in the case of Lynch v. Donnelly, 465 U.S. 688 (1984), proposes the court also question whether the government is, by their law or conduct, endorsing or disapproving of religion and/or religious belief. (Gaustad’s Church and State in America contains a portion of her opinion that includes these comments).
Three major cases have been heard by the Supreme Court concerning holiday and religious displays, the first in 1984 (Lynch v. Donnelly, 465 U.S. 1984), the second in 1989 (Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989)) , and the third in 1995 (Capitol Square Review Board v. Pinette, 515 U.S. 753 (1995)). Once decided, the court has been disinclined to deal with the minutia of decision making, and has turned down appeals as recently as 1998 concerning lower court rulings on the topic (i.e. Elewski v. Syracuse, N.Y., 123 F.3d 51(2d Cir.1998)(cert. denied 118 S.Ct.1186).
Lynch v. Donnelly, 465 U.S. 1984, concerned a Pawtucket, Rhode Island city government annually paid Christmas season display for over forty years. This display, in the city shopping district, included a nativity scene, as well as a Santa Claus house, a sleigh pulled by cutout figures of reindeer, candy striped poles, carolers, a large banner that reads "SEASONS GREETINGS" and hundreds of colored lights. The establishment clause concern was confined to the nativity scene, but the entire context in which it appeared was relevant to the Court’s decision. Chief Justice Berger wrote the majority opinion for the case, stating that in the context of the whole scene, the nativity scene did not constitute advocacy of a particular religion, the crèche held a secular purpose, and that a symbol almost two millenniums old cannot "taint" an exhibition, and that a "crèche is no more an advancement of religion than a recognition that the name of the holiday itself derives from "Christ’s Mass." (Gaustad 1999, direct quotation from Lynch v. Donnelly, 465 U.S. 1984.) The decision was a 5/4 split, for the display, and it should be noted that bare majority decisions such as this do not, historically, provide solid precedents for the lower courts, or often, final decisions for the Supreme Court.
Allegheny County v. ACLU
The court decided that the crèche did violate the establishment clause, while the display with the menorah did not. In the second display, the menorah did not stand alone, but with, as before stated, the Christmas tree (the court declared that "the Christmas tree, whatever its origins, is not regarded today as a religious symbol") and the sign saluting liberty. Taken as a whole, it was considered acceptable "because it was not considered and endorsement of religious faith, but simply a recognition of cultural diversity."
The crèche was ruled to breach the wall of separation between church and state because it stood alone, without any symbols of a less than religious intent, such as Santa, sleigh, or reindeer. The sign stating that scene was a donation by the Holy Name Society did not relieve this endorsement of a particular religion, but may have further reinforced the breach with further evidence that the government was supporting and promoting a particular religion. The three key factors, based on the proliferation of the pens of the Justices on this case (five opinions were written), under which the concept of endorsement should be tested, are context, composition and location. In concern for context, the secular aspects of Christmas and its role as a national holiday, not a religious holy day, must be emphasized in a display of religious symbols if it is not be considered a violation of the establishment clause.
These cases, to date, have created the "rule-book" as to publicly sponsored displays on public property, with individual cases now heard by lower courts. All recent appeals to the Supreme Court level have been denied. One other case exists concerning displays on public property, this one concerning both free speech and the establishment clause.
Capitol Square Review Board v. Pinette
The final case is that of Capitol Square Review Board v. Pinette, 515 U.S. 753 (1995). The syllabus from the Supreme Court Collection at Cornell University states:
Ohio law makes Capitol Square, the Statehouse plaza in Columbus, a forum for discussion of public questions and for public activities, and gives petitioner Capitol Square Review and Advisory Board responsibility for regulating access to the square. To use the square, a group must simply fill out an official application form and meet several speech neutral criteria. After the Board denied, on Establishment Clause grounds, the application of respondent Ku Klux Klan to place an unattended cross on the square during the 1993 Christmas season, the Klan filed this suit. The District Court entered an injunction requiring issuance of the requested permit, and the Board permitted the Klan to erect its cross. The Sixth Circuit affirmed the judgment, adding to a conflict among the Courts of Appeals as to whether a private, unattended display of a religious symbol in a public forum violates the Establishment Clause.
The most important factors in this case are whether a display has been placed in a public forum, and the type of public forum. In the case of Perry Education v. Perry Local Educator’s Association, 460 U.S. 37 (1983), the Supreme Court identified three types of public property for first Amendment expression purposes: the traditional public forum, the open or designated forum, and the non-public forum. These forums were further defined and clarified in the case of United States v. Grace, 461 U.S. 171 (1983). Traditional public forums include streets, sidewalks, and parks. Non public forums include property owned by the government that is not used for public expression purposes, such as government buildings, school stadiums, the Supreme Court itself. Open forums are other public owned property that has been designated, by government action, law or permissiveness, to be used by private groups (for example, places where folk festivals, public concerts, and/or political rallies have been held). Private speakers cannot be restricted from use of those places unless they can demonstrate a compelling government interest for such a content-based exclusion. The Ohio government believed it had first amendment grounds for prohibiting the the KKK’s erection of a cross on such property.
The display was held to be private religious speech, protected also by the first amendment in its free speech clause. The local government felt the display would be understood by other citizens as being erected and mainted by them, but the Supreme Court declared that since Ohio could demand that ALL displays on the property be identified as those of private citizens, they had not presented a compelling reason for turning down the KKK’s permit.
The current stance of the Supreme Court has been well summarized by ACLU of Massachusetts in their statement "Supporting Religious Freedom: A Statement on Religious Displays." The center section of this short document outlines the freedom private citzens hold to place private displays on private property, the conditions under which they are free to private displays may be placed on public property (in traditional and open forums), and a partial explanation of the complexity of Government-Sponsored Holiday Displays. The ACLU firmly and vehemently does not support this practice, and every holiday season, threatens legal action and actively brings city governments to court over such displays, in order to force further clarifications in local arenas as to the Supreme Court’s rulings. Recent cases have been brought to the courts in Syracuse NY, Tenafly NJ, Allegheny County , PA, Fairfax VA, Jersey City, NJ, San Francisco, CA, Bristol RI, and Florissant MO to name but a few, with varying outcomes.
ACLU sources can be quoted as saying that the government should not even include religious symbols in displays, since to do so makes "a mockery of important religious symbols by cluttering them up with secular objects," ," (ACLU News Release, 12-30-98) that "spirituality is undermined and religious symbols trivialized when they are secularized [placed in close arrangement with items like candy canes and Santa to permit government endorsement and that "truly religious people should not want the nativity cluttered with secular symbols to permit the government to display it." (ACLU of Massachusetts Press Release 12-17-98). These statements may seem inflamatory, the ACLU does desire them to be dissuading. Letters to