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)

Lynch v. Donnelly

465 US 668 (Decided March 5, 1984)

Bill Long

This 5-4 decision of the Court, written by Chief Justice Burger, upheld the constitutionality of the seasonal display of a city-owned nativity scene (Infant Jesus, Mary, Joseph, angles, shepherds, etc.) appearing with other indicia associated with Christmas (reindeer pulling Santa's sleigh, Christmas tree, cutout characters and colored lights) in a park owned by a nonprofit organization and sponsored jointly by a downtown merchants' association and the City of Pawtucked, R.I. Lynch, who was the mayor of Pawtucket, and others argued that the creche violated the Establishment clause of the First Amendment. Three opinions merit mention.

Chief Justice Burger argued that this case was controlled by the precedent of Marsh, decided in the previous term, which held that the Establishment Clause was not violated when the State of Nebraska employed members of the clergy to offer prayers at the beginning of legislative sessions. He stated that the basic principle implicated in this case is the degree to which the consitutional separation of church and state [he declined to accept Jefferson's "metaphor" of the "wall" between the two as a wholly accurate description of the relationship between them] allows "accommodation" between the two. Burger claimed, "Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions." The question then became whether the creche, in the context of the facts stated, served more as an accommodation of religion rather than an establishment of religion.

Mr. Burger mentioned briefly the three-fold Lemon test, which he articulated in 1971, but then minimized its importance by saying that the court ought not to be confined to any "single test or criterion in this sensitive area." But he seems to use it, and argues that it is sufficient to pass constitutional muster if the city has some secular purpose for the display. Burger found the secular purpose in engendering a "friendly community spirit of goodwill" in addition to a religious significance. Certainly there was no intent to or effect of promoting religion, even if an indirect benefit to religion might be realized. The creche was a "passive" display, hardly the stuff of establishing a state church. Thus, Burger's approach articulates the theory of accommodation and the propriety of indirect benefits to religion without implicating the Establishment Clause of the First Amendment.

More significant, from the subsequent citations to this case, is Justice O'Connor's concurrence. She used her concurrence to try to make more precise the Lemon test, though it was not clear whether she would replace it by her formulation. Judge Goodwin, of the 9th Circuit, used her analysis in addition to Lemon in analyzing the constitutionality of the phrase "Under God" in the Pledge of Allegiance. Her contention was that the purpose prong of Lemon asks whether the government's "actual purpose" is to "endorse or disapprove of religion." The effects prong asks whether the practice under review "in fact conveys a message of endorsement or approval." The entanglement prong suggests an activity which "may interfere with the independence of the institutions, give the institutions access to government...and foster the creation of political constituencies defined along religious lines." Therefore, her analysis of the creche asked whether government intended to convey a message of endorsement or disapproval of religion.

Framing the question in this manner, she concluded that the evident purpose of the display was not to promote the religious content but the "celebration of the public holiday through its traditional symbols," which is a legitimate secular purpose. She went one step beyond Justice Burger in contending that the effect prong of Lemon need not be invalidated even if it causes "as a primary effect," advancement or inhibition of religion. The creche did not provide the occasion for government endorsement of religion, but is a "traditional symbol" of the holiday.

Justice Brennan, speaking for himself, Marshall, Blackmun and Stevens, thought that the court departed from its "controlling precedent" in aligning this case more with its Marsh decision than more numerous cases to the contrary. Using the language of Lemon Brennan concluded that the city's use of the creche did not reflect a "clearly secular...purpose." In addition, the "primary effect" of the display was, Brennan argued (in agreeing with the District Court), "to place the government's imprimatur of approval on the particular religious beliefs exemplified by the creche." He was afraid that the message communicated to minority religions would be to say that their religions were not worthy of public recognition.

As is often the case, the dissent will conclude (or begin) with a parade of horribles that might result from the majority's decision. Brennan saw state entanglement in religion (in violation of the third Lemon factor) because other religious groups in the future would no doubt flood city hall with menorahs or other symbols of their religion and demand public accommodation. Unhelpful controversies would thereby fester.

This case was a helpful vehicle to provide the Court with the occasion to sort out to what extent a direct benefit to religion was required to invalidate the practice, to what extent a secular purpose is required, and how the practice under consideration lines up with previously approved or disapproved practices. Though Justice Burger's opinion is not a scholarly exposition of the problem, it is a good basic case presenting the conflict between a more "accommodationist" and a more "separationist" approach to the role of religion in American public life.