Establishment Clause Jurisprudence and Allegheny County v. ACLU and creche and menorah and pittsburgh

Five opinions were filed in this case, and the brief description in the Syllabus of the opinion explaining how the various Justices paired up on the two issues raised is 16 lines long. In other words, this case is as close to complete chaos on the Court as anything that could be imagined. No rationale on any point was convincing to the majority of the Court. The only solid "bloc" of voters is what I call the BIG FOUR dissenters (Chief Justice Rehnquist and Justices White, Scalia and Kennedy--the spokesman for the group). I will only have space in this mini-essay to refer to four of the opinions.

We recall that the two issues presented in the case are the constitutionality, under the Establishment Clause, of a creche on the Grand Staircase (with a floral background) in the Allegheny County Courthouse and the joint presence of a 45-foot high Christmas tree and 18-foot menorah outside the City-County building a block away.

Justice Blackmun had the daunting task of writing the opinion. In his plodding but thorough style, he reviewed not only the underlying litigation but the origin, history and meaning of the menorah in Judaism. The litigation below illustrates the issues that tied up the Court. The District Court relied on Lynch (1984--the "creche" case out of Pawtucket, RI) and held that since the creche in the Courthouse was part of a holiday display, and did not stand alone, it did not violate the Clause. Likewise, the menorah was only an "insignificant part" of another holiday display. Lynch had placed great emphasis on the secular meaning of the Christmas holiday for America. However, the Circuit Court distinguised Lynch and held that a joint display of a creche and a menorah, as well as a creche by itself, had the effect of endorsing religion.

Significant for Justice Blackmun was the refinement of the Lemon test suggested by Justice O'Connor in her Lynch concurrence. In a nutshell the test is whether "the challenged government action is sufficiently likely to be perceived...as an endorsement...of individual religious choices." He argued that the effect of the Courthouse creche turned on its setting. "Nothing in the context of the display detracts from the creche's religious message." While in Lynch the creche was surrounded by secular signs of the season, "here, in contrast, the creche stands alone." In addition, it stood in the "main" and "most beautiful part" of the builidng. "No viewer could reasonably think that it occupies this location without the support and approval of the government."

The same could not be said about the joint Christmas tree/menorah display. In reasoning that garnered the support of few (if any) Justices, he argued that the Christmas tree, as a secular symbol, dominated the tree/menorah display and, as it were, secularized the menorah. "It is more sensible to interpret the meaning of the menorah in light of the tree, rather than vice versa." Thus, the creche was disallowed while the joint display was permitted.

Justice O'Connor, in her concurrence in part and concurrence in the judgment, reiterated her "endorsement" test and then applied it to each display. The message of the lone creche was that "non adherents of Christianity" are "not full members of the political community" while Christians are "favored members of the political community." With respect to the joint display, Justice O'Connor also noted that there was a banner in this display with the following message:

"During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom."

She interpreted these words as the city's intention to "convey its own distinctive message of pluralism and freedom." As such, the city secularized the display and emphasized the freedom of religious belief which tis the cornerstone of our society.

For Justices Brennan, Marshall and Stevens, however, the joint display didn't survive constitutional scrutiny (they concurred with respect to the creche). They stressed the need for interpreting a symbol in context; what is religious in one place may cease to carry a religious meaning someplace else. In response to Justice Blackmun's contention that the Christmas tree's religious dimension could be overlooked, they asserted that such would not be the case if one were to "consider a poster featuring a star of David, a statue of Buddha, a Christmas tree, a mosque, and a drawing of Krishna." There could be no doubt that in such company the tree would serve "unabashedly" as a religious symbol. The same could be said about the tree with the menorah.

The BIG FOUR dissenters would propose a new test to replace Lemon even though they claimed that both displays would be permissible under Lemon. Their proposed two-pronged test would seek to forestall the "relentless extirpation" of contact between government and religion which they felt the majority was pursuing. "Our cases," they said, "disclose two limiting principles: government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to such a degree that it in fact 'establishes a [state] religion or religious faith, or tends to do so.'" In fact, when the religion clauses are read together they provide for "flexible accommodation" of government and religion. In this case, because the symbols in use are "passive" symbols and therefore do not rise to the level of instruments of proselytization or coercion, they do not offend the Establishment Clause.

Conclusion

The dissent realized that the tone of its opinion could be interpreted as "uncharitable." Yet this decision, like no other, shows that the rift on the Court on matters touching the Establishment Clause (at least at the end of the 1980s) was deeply philosophical and could not be papered over even if they agreed on a common interpretive framework. But, as seasoned Court observers have noted, 1988-89 was a very hard term for the Court. This was one case that made it so.