County of Allegheny v. Aclu, 492 U.S. 573 (1989)

JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE STEVENS join, concurring in part and dissenting in part.

I have previously explained at some length my views on the relationship between the Establishment Clause and government-sponsored celebrations of the Christmas holiday. See Lynch v. Donnelly, 465 U.S. 668, 694-726 (1984) (dissenting opinion). I continue to believe that the display of an object that "retains a specifically Christian [or other] religious meaning," id. at 708, is incompatible with the separation of church and state demanded by our Constitution. I therefore agree with the Court that Allegheny County’s display of a creche at the county courthouse signals an endorsement of the Christian faith in violation of the Establishment Clause, and join Parts III-A, IV, and V of the Court’s opinion. I cannot agree, however, that the city’s display of a 45-foot Christmas tree and an 18-foot Chanukah menorah at the entrance to the building housing the mayor’s office shows no favoritism towards Christianity, Judaism, or both. Indeed, I should have thought that the answer as to the first display supplied the answer to the second.

According to the Court, the creche display sends a message endorsing Christianity because the creche itself bears a religious meaning, because an angel in the display carries a banner declaring "Glory to God in the highest!," and because the floral decorations surrounding the creche highlight it, rather than secularize it. The display of a Christmas tree and Chanukah menorah, in contrast, is said to show no endorsement of a particular faith or faiths, or of religion in general, because the Christmas tree is a secular symbol which brings out the secular elements of the menorah. Ante at 616-617. And, JUSTICE BLACKMUN concludes, even though the menorah has religious aspects, its display reveals no endorsement of religion because no other symbol could have been used to represent the secular aspects of the holiday of Chanukah without mocking its celebration. Ante at 618. Rather than endorsing religion, therefore, the display merely demonstrates that "Christmas is not the only traditional way of observing the winter holiday season," and confirms our "cultural diversity." Ante at 617, 619.

Thus, the decision as to the menorah rests on three premises: the Christmas tree is a secular symbol; Chanukah is a holiday with secular dimensions, symbolized by the menorah; and the government may promote pluralism by sponsoring or condoning displays having strong religious associations on its property. None of these is sound.

I

The first step toward JUSTICE BLACKMUN’s conclusion is the claim that, despite its religious origins, the Christmas tree is a secular symbol. He explains:

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. Numerous Americans place 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.

Ante at 616-617 (citations and footnotes omitted). JUSTICE O’CONNOR accepts this view of the Christmas tree because,

whatever its origins, [it] is not regarded today as a religious symbol. Although Christmas is a public holiday that has both religious and secular aspects, the Christmas tree is widely viewed as a secular symbol of the holiday, in contrast to the creche, which depicts the holiday’s religious dimensions.

Ante at 633.

Thus, while acknowledging the religious origins of the Christmas tree, JUSTICES BLACKMUN and O’CONNOR dismiss their significance. In my view, this attempt to take the "Christmas" out of the Christmas tree is unconvincing. That the tree may, without controversy, be deemed a secular symbol if found alone does not mean that it will be so seen when combined with other symbols or objects. Indeed, JUSTICE BLACKMUN admits that "the tree is capable of taking on a religious significance if it is decorated with religious symbols." Ante at 617, n. 65.

The notion that the Christmas tree is necessarily secular is, indeed, so shaky that, despite superficial acceptance of the idea, JUSTICE O’CONNOR does not really take it seriously. While conceding that the "menorah standing alone at city hall may well send" a message of endorsement of the Jewish faith, she nevertheless concludes:

By accompanying its display of a Christmas tree -- a secular symbol of the Christmas holiday season -- with a salute to liberty, and by adding a religious symbol from a Jewish holiday also celebrated at roughly the same time of year, I conclude that the city did not endorse Judaism or religion in general, but rather conveyed a message of pluralism and freedom of belief during the holiday season.

Ante at 635. But the "pluralism" to which JUSTICE O’CONNOR refers is religious pluralism, and the "freedom of belief" she emphasizes is freedom of religious belief.* The display of the tree and the menorah will symbolize such pluralism and freedom only if more than one religion is represented; if only Judaism is represented, the scene is about Judaism, not about pluralism. Thus, the pluralistic message JUSTICE O’CONNOR stresses depends on the tree’s possessing some religious significance.

In asserting that the Christmas tree, regardless of its surroundings, is a purely secular symbol, JUSTICES BLACKMUN and O’CONNOR ignore the precept they otherwise so enthusiastically embrace: that context is all-important in determining the message conveyed by particular objects. See ante at 597 (BLACKMUN, J.) (relevant question is "whether the display of the creche and the menorah, in their respective `particular physical settings,’ has the effect of endorsing or disapproving religious beliefs") (quoting School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390 (1985)); ante at 624 (O’CONNOR, J.) ("`[E]very government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion’") (quoting Lynch v. Donnelly, 465 U.S. at 694 (O’CONNOR, J., concurring)); ante at 636 (O’CONNOR, J.) ("Establishment Clause analysis . . . depends on sensitivity to the context and circumstances presented by each case"); ante at 637 (O’CONNOR, J.) (emphasizing "the need to focus on the specific practice in question in its particular physical setting and context"). In analyzing the symbolic character of the Christmas tree, both JUSTICES BLACKMUN and O’CONNOR abandon this contextual inquiry. In doing so, they go badly astray.

Positioned as it was, the Christmas tree’s religious significance was bound to come to the fore. Situated next to the menorah -- which, JUSTICE BLACKMUN acknowledges, is "a symbol with religious meaning," ante at 618, and indeed, is "the central religious symbol and ritual object of " Chanukah, ante at 633 (O’CONNOR, J.) -- the Christmas tree’s religious dimension could not be overlooked by observers of the display. Even though the tree alone may be deemed predominantly secular, it can hardly be so characterized when placed next to such a forthrightly religious symbol. Consider a poster featuring a star of David, a statue of Buddha, a Christmas tree, a mosque, and a drawing of Krishna. There can be no doubt that, when found in such company, the tree serves as an unabashedly religious symbol.

JUSTICE BLACKMUN believes that it is the tree that changes the message of the menorah, rather than the menorah that alters our view of the tree. After the abrupt dismissal of the suggestion that the flora surrounding the creche might have diluted the religious character of the display at the county courthouse, ante at 599, his quick conclusion that the Christmas tree had a secularizing effect on the menorah is surprising. The distinguishing characteristic, it appears, is the size of the tree. The tree, we are told, is much taller -- 2 1/2 times taller, in fact -- than the menorah, and is located directly under one of the building’s archways, whereas the menorah "is positioned to one side . . . [i]n the shadow of the tree." Ante at 617.

As a factual matter, it seems to me that the sight of an 18-foot menorah would be far more eye-catching than that of a rather conventionally sized Christmas tree. It also seems to me likely that the symbol with the more singular message will predominate over one lacking such a clear meaning. Given the homogenized message that JUSTICE BLACKMUN associates with the Christmas tree, I would expect that the menorah, with its concededly religious character, would tend to dominate the tree. And, though JUSTICE BLACKMUN shunts the point to a footnote at the end of his opinion, ante at 621, n. 70, it is highly relevant that the menorah was lit during a religious ceremony complete with traditional religious blessings. I do not comprehend how the failure to challenge separately this portion of the city’s festivities precludes us from considering it in assessing the message sent by the display as a whole. But see ibid. With such an openly religious introduction, it is most likely that the religious aspects of the menorah would be front and center in this display.

I would not, however, presume to say that my interpretation of the tree’s significance is the "correct" one, or the one shared by most visitors to the City-County Building. I do not know how we can decide whether it was the tree that stripped the religious connotations from the menorah or the menorah that laid bare the religious origins of the tree. Both are reasonable interpretations of the scene the city presented, and thus both, I think, should satisfy JUSTICE BLACKMUN’s requirement that the display "be judged according to the standard of a `reasonable observer.’" Ante at 620. I shudder to think that the only "reasonable observer" is one who shares the particular views on perspective, spacing, and accent expressed in JUSTICE BLACKMUN’s opinion, thus making analysis under the Establishment Clause look more like an exam in Art 101 than an inquiry into constitutional law.

II

The second premise on which today’s decision rests is the notion that Chanukah is a partly secular holiday, for which the menorah can serve as a secular symbol. It is no surprise and no anomaly that Chanukah has historical and societal roots that range beyond the purely religious. I would venture that most, if not all, major religious holidays have beginnings and enjoy histories studded with figures, events, and practices that are not strictly religious. It does not seem to me that the mere fact that Chanukah shares this kind of background makes it a secular holiday in any meaningful sense. The menorah is indisputably a religious symbol, used ritually in a celebration that has deep religious significance. That, in my view, is all that need be said. Whatever secular practices the holiday of Chanukah has taken on in its contemporary observance are beside the point.

Indeed, at the very outset of his discussion of the menorah display, JUSTICE BLACKMUN recognizes that the menorah is a religious symbol. Ante at 613. That should have been the end of the case. But, as did the Court in Lynch, JUSTICE BLACKMUN,

by focusing on the holiday "context" in which the [menorah] appeared, seeks to explain away the clear religious import of the [menorah]. . . .

465 U.S. at 705 (BRENNAN, J., dissenting). By the end of the opinion, the menorah has become but a coequal symbol, with the Christmas tree, of "the winter-holiday season." Ante at 620. Pittsburgh’s secularization of an inherently religious symbol, aided and abetted here by JUSTICE BLACKMUN’s opinion, recalls the effort in Lynch to render the creche a secular symbol. As I said then:

To suggest, as the Court does, that such a symbol is merely "traditional," and therefore no different from Santa’s house or reindeer, is not only offensive to those for whom the creche has profound significance but insulting to those who insist, for religious or personal reasons, that the story of Christ is in no sense a part of "history," nor an unavoidable element of our national "heritage."

465 U.S. at 711-712. As JUSTICE O’CONNOR rightly observes, JUSTICE BLACKMUN "obscures the religious nature of the menorah and the holiday of Chanukah." Ante at 633.

I cannot, in short, accept the effort to transform an emblem of religious faith into the innocuous "symbol for a holiday that . . . has both religious and secular dimensions." Ante at 614 (BLACKMUN, J.).

III

JUSTICE BLACKMUN, in his acceptance of the city’s message of "diversity," ante at 619, and, even more so, JUSTICE O’CONNOR, in her approval of the "message of pluralism and freedom to choose one’s own beliefs," ante at 634, appear to believe that, where seasonal displays are concerned, more is better. Whereas a display might be constitutionally problematic if it showcased the holiday of just one religion, those problems vaporize as soon as more than one religion is included. I know of no principle under the Establishment Clause, however, that permits us to conclude that governmental promotion of religion is acceptable so long as one religion is not favored. We have, on the contrary, interpreted that Clause to require neutrality, not just among religions, but between religion and nonreligion. See, e.g., Everson v. Board of Education of Ewing, 330 U.S. 1, 15 (1947); Wallace v. Jaffree, 472 U.S. 38, 52-54 (1985).

Nor do I discern the theory under which the government is permitted to appropriate particular holidays and religious objects to its own use in celebrating "pluralism." The message of the sign announcing a "Salute to Liberty" is not religious, but patriotic; the government’s use of religion to promote its own cause is undoubtedly offensive to those whose religious beliefs are not bound up with their attitude toward the Nation.

The uncritical acceptance of a message of religious pluralism also ignores the extent to which even that message may offend. Many religious faiths are hostile to each other, and indeed refuse even to participate in ecumenical services designed to demonstrate the very pluralism JUSTICES BLACKMUN and O’CONNOR extol. To lump the ritual objects and holidays of religions together without regard to their attitudes toward such inclusiveness, or to decide which religions should be excluded because of the possibility of offense, is not a benign or beneficent celebration of pluralism: it is instead an interference in religious matters precluded by the Establishment Clause.

The government-sponsored display of the menorah alongside a Christmas tree also works a distortion of the Jewish religious calendar. As JUSTICE BLACKMUN acknowledges, "the proximity of Christmas [may] accoun[t] for the social prominence of Chanukah in this country." Ante at 586. It is the proximity of Christmas that undoubtedly accounts for the city’s decision to participate in the celebration of Chanukah, rather than the far more significant Jewish holidays of Rosh Hashanah and Yom Kippur. Contrary to the impression the city and JUSTICES BLACKMUN and O’CONNOR seem to create, with their emphasis on "the winter holiday season," December is not the holiday season for Judaism. Thus, the city’s erection alongside the Christmas tree of the symbol of a relatively minor Jewish religious holiday, far from conveying "the city’s secular recognition of different traditions for celebrating the winter-holiday season," ante at 620 (BLACKMUN, J.), or "a message of pluralism and freedom of belief," ante at 635 (O’CONNOR, J.), has the effect of promoting a Christianized version of Judaism. The holiday calendar they appear willing to accept revolves exclusively around a Christian holiday. And those religions that have no holiday at all during the period between Thanksgiving and New Year’s Day will not benefit, even in a second-class manner, from the city’s once-a-year tribute to "liberty" and "freedom of belief." This is not "pluralism" as I understand it.

1. The history of religious establishments is discussed in, e.g., J. Swomley, Religious Liberty and the Secular State 24-41 (1987) (Swomley). See generally L. Levy, The Establishment Clause (1986) (Levy). One historian describes the situation at the time of the passage of the First Amendment as follows:

In America, there was no establishment of a single church, as in England. Four states had never adopted any establishment practices. Three had abolished their establishments during the Revolution. The remaining six states -- Massachusetts, New Hampshire, Connecticut, Maryland, South Carolina, and Georgia -- changed to comprehensive or "multiple" establishments. That is, aid was provided to all churches in each state on a nonpreferential basis, except that the establishment was limited to churches of the Protestant religion in three states and to those of the Christian religion in the other three states. Since there were almost no Catholics in the first group of states, and very few Jews in any state, this meant that the multiple establishment practices included every religious group with enough members to form a church. It was this nonpreferential assistance to organized churches that constituted "establishment of religion" in 1791, and it was this practice that the amendment forbade Congress to adopt.

C. Pritchett, The American Constitution 401 (3d ed.1977).

2. For a comprehensive narration of this process, see Levy 75-89. See also e.g., Wallace v. Jaffree, 472 U.S. 38, 92-97 (1985) (REHNQUIST, J., dissenting); Swomley 43-49; Drakeman, Religion and the Republic: James Madison and the First Amendment, in James Madison on Religious Liberty 233-235 (R. Alley ed.1985).

3.

Other members of the established church also disapproved taxation for religious purposes. One of these, James Sullivan, who was later elected Governor of Massachusetts, wrote about such taxation:

This glaring piece of religious tyranny was founded upon one or the other of these suppositions: that the church members were more religious, had more understanding, or had a higher privilege than, or a preeminence over, those who were not in full communion, or in other words, that their growth in grace or religious requirements, gave them the right of taking and disposing of the property of other people against their consent.

The struggle for religious liberty in Massachusetts was the struggle against taxation for religious purposes. In that struggle, there was civil disobedience; there were appeals to the Court and to the Crown in faraway England. Societies were organized to fight the tax. Even after some denominations had won the right to be taxed only for their own churches or meetings, they continued to resist the tax, even on the nonpreferential basis by which all organized religious groups received tax funds. Finally, the state senate, which had refused to end establishment, voted in 1831 to submit the issue to the people. The vote, which took place in 1833, was 32,234 for disestablishment to 3,273 for keeping the multiple establishments of religion. It was a 10 to 1 vote, and in 1834, the amendment was made effective by legislation.

Swomley 28. Cf. Engel v. Vitale, 370 U.S. 421, 432 (1962) ("Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand").

4. This proscription applies to the States by virtue of the Fourteenth Amendment. Jaffree, 472 U.S. at 48-55.

5. "Respect," as defined in T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796). See S. Johnson, A Dictionary of the English Language (7th ed. 1785); see also The Oxford English Dictionary 733-734 (1989); Webster’s Ninth New Collegiate Dictionary 1004 (1988).

6. The criticism that JUSTICE KENNEDY levels at JUSTICE O’CONNOR’s endorsement standard for evaluating symbolic speech, see post at 668-678, is not only "uncharitable," post at 675, but also largely unfounded. Inter alia, he neglects to mention that 1 of the 2 articles he cites as disfavoring the endorsement test, post at 699, itself cites no fewer than 16 articles and 1 book lauding the test. See Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the "No Endorsement" Test, 86 Mich.L.Rev. 266, 274, n. 45 (1987). JUSTICE KENNEDY’s preferred "coercion" test, moreover, is, as he himself admits, post at 660, out of step with our precedent. The Court has stated:

The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion, and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.

Engel, 370 U.S. at 430. Even if the law were not so, it seems unlikely that "coercion" identifies the line between permissible and impermissible religious displays any more brightly than does "endorsement."

7. In a similar vein, we have interpreted the Amendment’s strictly worded Free Speech and Free Press Clauses to raise a strong presumption against, rather than to ban outright, state abridgment of communications. See, e.g., Roaden v. Kentucky, 413 U.S. 496, 504 (1973). By suggesting such a presumption plays a role in considering governmental symbolic speech about religion, I do not retreat from my position that a "`high and impregnable’ wall" should separate government funds from parochial schools’ treasuries. See Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 671 (1980) (STEVENS, J., dissenting) (quoting Everson v. Board of Education of Ewing, 330 U.S. 1, 18 (1947)).

8. The point is reiterated here by amicus the Governing Board Of the National Counsel of Churches of Christ in the U.S.A. which argues that "government acceptance of a creche on public property . . . secularizes and degrades a sacred symbol of Christianity," Brief for American Jewish Committee et al. as Amici Curiae ii. See also Engel, 370 U.S. at 431. Indeed, two Roman Catholics testified before the District Court in this case that the creche display offended them. App. 79-80, 93-96.

9. See Brief for American Jewish Committee et al. as Amici Curiae i-ii; Brief for American Jewish Congress et al. as Amici Curiae 1-2; Tr. of Oral Arg. 44.

10. These cases illustrate the danger that governmental displays of religious symbols may give rise to unintended divisiveness, for the net result of the Court’s disposition is to disallow the display of the creche but to allow the display of the menorah. Laypersons unfamiliar with the intricacies of Establishment Clause jurisprudence may reach the wholly unjustified conclusion that the Court itself is preferring one faith over another. See Goldman v. Weinberger, 475 U.S. 503, 512-513 (1986) (STEVENS, J., concurring). Cf. Lemon v. Kurtzman, 403 U.S. 602, 623 (1971) ("[T]he Constitution’s authors sought to protect religious worship from the pervasive power of government"); Engel, 370 U.S. at 430 ("Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause").

11. The suggestion that the only alternative to governmental support of religion is governmental hostility to it represents a giant step backward in our Religion Clause jurisprudence. Indeed in its first contemporary examination of the Establishment Clause, the Court, while differing on how to apply the principle, unanimously agreed that government could not require believers or nonbelievers to support religions. Everson v. Board of Education of Ewing, 330 U.S. at 15-16; see also id. at 31-33 (Rutledge, J., dissenting). Accord, Jaffree, 472 U.S. at 52-55.

12. Cf. New York v. Ferber, 458 U.S. 747, 778 (1982) (STEVENS, J., concurring in judgment) ("The question whether a specific act of communication is protected by the First Amendment always requires some consideration of both its content and its context").

13. All these leaders, of course, appear in friezes on the walls of our courtroom. See The Supreme Court of the United States 31 (published with the cooperation of the Historical Society of the Supreme Court of the United States).

14. The Court long ago rejected a contention similar to that JUSTICE KENNEDY advances today:

It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong. The history of man is inseparable from the history of religion. . . . [Early Americans] knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew rather that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men’s tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.

Engel, 370 U.S. at 433-435 (footnotes omitted).

15. After the judge and counsel for both sides agreed at a preliminary injunction hearing that the menorah was a religious symbol, App. 144-145, a rabbi testified as an expert witness that the menorah and the creche "are comparable symbols, that they both represent what we perceive to be miracles," id. at 146, and that he had never "heard of Hanukkah being declared a general secular holiday in the United States," id. at 148. Although a witness for intervenor Chabad testified at a later hearing that,

[w]hen used on Hanukkah in the home, it is definitely symbolizing a religious ritual . . . whereas, at other times, the menorah can symbolize anything that one wants it to symbolize,

id. at 240, he also agreed that lighting the menorah in a public place "probably would" publicize the miracle it represents, id. at 263.

Nonetheless, JUSTICE BLACKMUN attaches overriding secular meaning to the menorah. Ante at 613-616. Contra, ante at 632-634 (O’CONNOR, J., concurring in part and concurring in judgment); ante at 638, 641-643 (BRENNAN, J., concurring in part and dissenting in part); post at 664 (KENNEDY, J., concurring in judgment in part and dissenting in part). He reaches this conclusion only after exhaustive reference, not only to facts of record but primarily to academic treatises, to assess the degrees to which the menorah, the tree, and the creche are religious or secular. Ante at 579-587, 616.