Establishment Clause--An Introduction

Older Cases

Important Cases

Everson v. Board (47)

McCollum v. Board (48)

Zorach v. Clauson (52)

Engel v. Vitale (62)

Abington Sch. Dist (63)

Brennan's Opinion (63)

Board v. Allen (68)

Epperson v. AR (68)

Walz v. Commission (70)

Lemon v. Kurtzman (71)

Tilton v. Richardson (71)

Hunt v. McNair (73)

Comm. v. Nyquist (73)

Levitt v Committee (73)

Sloan v. Lemon (73)

Meek v. Pittenger (75)

Roemer v. Maryland (76)

NY v. Cathedral (77)

Wolman v. Walter (77)

Committee v. Regan (80)

Regan II

Stone v. Graham (80)

Widmar v. Vincent (81)

Chambers v. NE (83)

Mueller v. Allen (83)

Lynch v. Donnelly (84)

Wallace v. Jaffree (85)

Aguilar v. Felton (85)

Grand Rap. v. Ball (85)

Witters v. Wash. (86)

Edwards v. Aguillard (87)

Bowen v. Kendrick (88)

Alllegheny I (89)

Allegheny II (89)

Westside v Mergens (90)

Lee v. Weisman (92)

Lee v. Weisman II (92)

Lamb's Chapel (93)

Zobrest v. Catalina (93)

Bd. of Kiryas Joel (94)

Rosenberger v. UVA (95)

Agostini v. Felton (97)

Santa Fe v. Doe (00)

Mitchell v. Helms (00)

Zelman (02)

McCreary County (05)

Van Orden (05)

Allegheny County v. ACLU I

492 US 573 (Decided July 3, 1989)

Bill Long

If there is one case that particularly shows the absolute disarray into which US Supreme Court Establishment Clause jurisprudence had fallen by the end of the 1980s, it is this case. One of the leading web sites on "Establishment Clause Jurisprudence" (http://members.tripod.com) doesn't even list this case in its summaries of signficant Establishment Clause cases; perhaps it is embarrassed by the words and opinions of the Justices.

In any case, in this decision the Court, by a series of split majorities, disallowed (5-4) a holiday display in the Grand Staircase of the Allegheny (PA) Courthouse that had a creche, some floral background and an angel bvearing a banner proclaiming "Gloria in Excelsis Deo" ("Glory to God in the Highest"). At the same time, by a different 5-4 majority, it allowed the a Christmas-tide display of a 45-foot high Christmas tree next to an 18-foot high menorah (Jewish candlelabrum) outside of the City-County building in Pittsburgh. In reviewing this case, I will first point out (in this mini-essay) the confusions suffusing the opinions and then (in the next mini-essay) try to highlight some of the Justices' reasoning.

Confusions

The following are several issues that confuse the Court. Even their framing of the issues provides ample grounds for disagreement and chaos. (1) Is the creche an active or a passive symbol? Apparently for the BIG FOUR dissenters (Kennedy, White, Burger and Scalia) a symbol that doesn't "talk" and doesn't "intrude" is a passive symbol and therefore less problematic than an "active" symbol. But not only can the Court not agree on what constitutes the active and passive components of a symbol, but it also probably disagrees whether an active symbol should thereby be disallowed and a passive one allowed. (2) Is the Christmas tree a religious or a secular symbol? The Hanukah menorah? Can a symbol lose its religious connotation? Or, is a symbol BOTH sacred and secular? For example, the Court appears to be in disarray over whether the Christmas tree is now a religious symbol. Justice Brennan would argue that it is all in the context. What might be a religious symbol in one place is not necessarily a religious symbol in another (such as a Christmas tree in a painting in an art gallery v. a Christmas tree in a church sanctuary)

(3) Does a symbol lose some of its religious connotation by being associated with a symbol of another religious tradition? That is, if a huge menorah in the public square unaccompanied by any other symbol might be an endorsement of Judaism, can one conclude that a menorah next to a creche would lessen its religious impact? Do the symbols therefore cancel each other out? Or, do both of the symbols retain their religious significance and present a new and "secular" message--that religions (plural) are all acceptable in America? Or, is this just the problem of preferring religion to nonreligion, which is prohibited by Everson? But, then again, is the nonpreferentialist approach to religion in Everson really what the Constitution requires? Is it more accurate to say that the Constitution supports an accommodationist philosophy, in which all religions are free to "play" under the "big tent" of government rather than that the Constitution prohibits all signs of government toleration (or is toleration endorsement?) of religion? (4) Does a "neutral" background take away from or enhance the symbol? For example, Justice Blackmun, with a narrow majority, would disallow the creche because the floral setting surrounding it was interpreted more as a "background" or "framing" than as a competing, complementary or attenuating symbol. But, how does one determine what is foreground and what is background in a symbolic display?

(5) Leaving aside the issue of what a symbol is, what tests should the Justices use to evaluate what they have found? The Lemon test has been around since 1971, but that test was roundly criticized by the BIG FOUR dissenters even as they applied it to find that the displays passed muster. Then, there is the O'Connor "endorsement" test, that in the five years since Lynch had apparently met with such meteroic success that the BIG FOUR had to try to discredit it in their dissent. Is this a supplementary test, a clarifying test, a replacement test? Finally, there is the "least restrictive alternative" test that Justice Brennan imported from other areas of the law (speech cases, for example), and tried to apply to Establishment Clause cases: that if there is a religous symbol on display, it is violative of the Establishment Clause to the extent that there is a less intrusive or less religious symbol that could have been used. This test seems at first blush not to fit the contours of the Establishment Clause but convinced Justice Blackmun and possibly Justice Marshall.

Conclusion

With these issues swirling in the foreground and the background, it is no wonder that the Justices could not agree on their mode of analysis or their conclusions as to whether these displays violated the Establishment Clause. The next essay tries to discuss their individual arguments.

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