Lynch v. Donnelly.doc

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LYNCH,

MAYOR OF

PAWTUCKET,

ET AL. v.

DONNELLY ET

AL.

No. 82-1256

SUPREME

COURT OF THE

UNITED

STATES

465 U.S. 668; 104

S. Ct. 1355 ; 79 L.

Ed. 2d 604; 1984

U.S. LEXIS 37 ;

52 U.S.L.W. 4317

O!o"#$ %, 1&8',

A$()#*

M+$ 5, 1&8%,

D#*#*

X x x x

DECISION

Municipality's including nativity scene in annualChristmas display held constitutional.

SUMMARY

Pawtucket residents and individual members ofthe hode !sland affiliate of the "merican Civil#iberties $nion% and the affiliate itself% brought suit inthe $nited &tates istrict Court for the istrict ofhode !sland% challenging the City of Pawtucket'sinclusion of a creche or nativity scene in the city'sChristmas display in a park owned by a nonprofitorgani(ation and located in the heart of the shopping

district. )he istrict Court held that the city's inclusionof the creche in the display violated the First

Amendment's establishment clause made binding onthe states through the Fourteenth Amendment % and

permanently en*oined the city from including the

creche in the display +525 F Supp 1150,. )he $nited&tates Court of "ppeals for the -irst Circuit affirmed+691 F2d 1029,.

n certiorari% the $nited &tates &upreme Courtreversed. !n an opinion by /urger% Ch. 0.% expressingthe views of hite% Powell% ehn2uist% and 'Connor%00.% it was held that the city's inclusion of the nativityscene or creche in its annual Christmas display did notviolate the First Amendment's establishment clause%made applicable to the states through the Fourteenth

Amendment % because the city had a secular purpose forincluding the creche% the city had not impermissibly

advanced religion% and including the creche did notcreate excessive entanglement between religion andgovernment.

'Connor% 0.% while *oining in the court's opinion%concurred in a separate opinion suggesting aclarification of the establishment clause doctrine tohold invalid any practice where the government'sactual purpose is to endorse or disapprove of religionor% irrespective of the government's actual purpose% the

practice under review in fact conveys a message ofendorsement or disapproval% and concluding that the

particular creche display at issue was not intended toendorse and did not have the effect of endorsing

Christianity.

/rennan% 0.% *oined by Marshall% /lackmun% and

&tevens% 00.% dissented on the ground that the city'sdisplay was an unconstitutional endorsement of a

particular faith.

/lackmun% 0.% *oined by &tevens% 0.% dissented on

the ground that precedent re2uired a decision that the

presence of the creche in a municipally sponsoreddisplay violated the First Amendment .

X x x x

SYLLA/US

)he city of Pawtucket% . !.% annually erects aChristmas display in a park owned by a nonprofitorgani(ation and located in the heart of the city'sshopping district. )he display includes% in addition tosuch ob*ects as a &anta Claus house% a Christmas tree%

and a banner that reads 3&4"&5& 644)!56&%3 acreche or 5ativity scene% which has been part of thisannual display for 78 years or more. espondents

brought an action in -ederal istrict Court%challenging the inclusion of the creche in the displayon the ground that it violated the Establishment Clause

of the First Amendment % as made applicable to thestates by the Fourteenth Amendment . )he istrict

Court upheld the challenge and permanently en*oinedthe city from including the creche in the display. )heCourt of "ppeals affirmed.

Held 9 5otwithstanding the religious significanceof the creche% Pawtucket has not violated the

Establishment Clause. Pp. :;<=:>;.

+a, )he concept of a 3wall3 of separation between

church and state is a useful metaphor but is not anaccurate description of the practical aspects of the

relationship that in fact exists. )he Constitution doesnot re2uire complete separation of church and state? itaffirmatively mandates accommodation% not merely

tolerance% of all religions% and forbids hostility towardany. "nything less would re2uire the 3callousindifference%3 orach !" Clauson# $%$ &"S" $06# $1%%that was never intended by the Establishment Clause.Pp. :;<=:;@.

+b, )his Court's interpretation of the Establishment Clause comports with thecontemporaneous understanding of the -ramers' intent.)hat neither the draftsmen of the Constitution% whowere Members of the -irst Congress% nor the -irstCongress itself% saw any establishment problem inemploying Chaplains to offer daily prayers in the



Page <

Congress is a striking example of the accommodationof religious beliefs intended by the -ramers. Pp. :;@=:;7.

+c, ur history is pervaded by officialacknowledgment of the role of religion in "merican

life% and e2ually pervasive is evidence of

accommodation of all faiths and all forms of religiousexpression and hostility toward none. Pp. :;7=:;>.

+d, ather than taking an absolutist approach in

applying the Establishment Clause and mechanicallyinvalidating all governmental conduct or statutes thatconfer benefits or give special recognition to religionin general or to one faith% this Court has scrutini(edchallenged conduct or legislation to determinewhether% in reality% it establishes a religion or religiousfaith or tends to do so. !n the line=drawing processcalled for in each case% it has often been found usefulto in2uire whether the challenged law or conduct has asecular purpose% whether its principal or primary effect

is to advance or inhibit religion% and whether it createsan excessive entanglement of government withreligion. /ut this Court has been unwilling to beconfined to any single test or criterion in this sensitivearea. Pp. :;>=:;A.

+e, Bere% the focus of the in2uiry must be on thecreche in the context of the Christmas season. -ocusexclusively on the religious component of any activity

would inevitably lead to its invalidation under the Establishment Clause. Pp. :;A=:>8.

+f, /ased on the record in this case% the city has asecular purpose for including the creche in its

Christmas display and has not impermissibly advancedreligion or created an excessive entanglement betweenreligion and government. )he display is sponsored bythe city to celebrate the Boliday recogni(ed byCongress and national tradition and to depict theorigins of that Boliday? these are legitimate secular

purposes. hatever benefit to one faith or religion orto all religions inclusion of the creche in the displayeffects% is indirect% remote% and incidental% and is nomore an advancement or endorsement of religion thanthe congressional and executive recognition of theorigins of Christmas% or the exhibition of religious

paintings in governmentally supported museums. )his

Court is unable to discern a greater aid to religion fromthe inclusion of the creche than from the substantial

benefits previously held not violative of the

Establishment Clause. "s to administrativeentanglement% there is no evidence of contact with

church authorities concerning the content or design ofthe exhibition prior to or since the city's purchase ofthe creche. 5o expenditures for maintenance of thecreche have been necessary% and% since the city ownsthe creche% now valued at <88% the tangible materialit contributes is de minimis. Political divisivenessalone cannot serve to invalidate otherwise permissibleconduct% and% in any event% apart from the instantlitigation% there is no evidence of political friction ordivisiveness over the creche in the 78=year history ofthe city's Christmas celebration. Pp. :>8=:>D.

+g, !t would be ironic if the inclusion of thecreche in the display% as part of a celebration of anevent acknowledged in the estern orld for <8centuries% and in this country by the people% the4xecutive /ranch% Congress% and the courts for <

centuries% would so 3taint3 the exhibition as to render itviolative of the Establishment Clause . )o forbid the

use of this one passive symbol while hymns and carolsare sung and played in public places including schools%and while Congress and state legislatures open publicsessions with prayers% would be an overreactioncontrary to this 5ation's history and this Court'sholdings. Pp. :>D=:>:.Xx x x

OPINION /Y /$64

OPINION

EF:;8G EFFF:8>G EFF1@D>G CB!4- 0$&)!C4/$64 delivered the opinion of the Court.

EFFF#4dB1"G E1"Ge granted certiorari todecide whether the Establishment Clause of the First

Amendment prohibits a municipality EF:;1G fromincluding a creche% or 5ativity scene% in its annualChristmas display.

!

4ach year% in cooperation with the downtownretail merchants' association% the city of Pawtucket% .!.% erects a Christmas display as part of its observance

of the Christmas holiday season. )he display issituated in a park owned by a nonprofit organi(ation

and located in the heart of the shopping district. )hedisplay is essentially like those to be found in hundredsof towns or cities across the 5ation == often on publicgrounds == during the Christmas season. )hePawtucket display comprises many of the figures anddecorations traditionally associated with Christmas%including% among other things% a &anta Claus house%reindeer pulling &anta's sleigh% candy=striped poles% aChristmas tree% carolers% cutout figures representingsuch characters as a clown% an elephant% and a teddy

bear% hundreds of colored lights% a large banner thatreads 3&4"&5& 644)!56&%3 and the creche atissue here. "ll components of this display areEFFF:8AG owned by the city.

)he creche% which has been included in thedisplay for 78 or more years% consists of the traditional

figures% including the !nfant 0esus% Mary and 0oseph%angels% shepherds% kings% and animals% all ranging in

height from D3 to D'. !n 1A;@% when the present crechewas ac2uired% it cost the city 1%@:D? it now is valuedat <88. )he erection and dismantling of the crechecosts the city about <8 per year? nominal expensesare incurred in lighting the creche. 5o money has beenexpended on its maintenance for the past 18 years.

EFFF#4dB<G E<Gespondents% Pawtucket residentsand individual members of the hode !sland affiliateof the "merican Civil #iberties $nion% and the affiliate

itself% brought this action in the $nited &tates istrictCourt for hode !sland% challenging the city's inclusionof the creche in the annual display. )he istrict Courtheld that the city's inclusion of the creche in the

display violates the Establishment Clause% 525 F"Supp"

1150# 11( )19(1*% which is binding on the states

through the EF:;<G Fourteenth Amendment . )heistrict Court found that% by including the creche inthe Christmas display% the city has 3tried to endorseand promulgate religious beliefs%3 id"# at 11$% and that3erection of the creche has the real and substantialeffect of affiliating the City with the Christian beliefsthat the creche represents.3 +d"# at 11 . )his



Page @

3appearance of official sponsorship%3 it believed%3confers more than a remote and incidental benefit onChristianity.3 +d"# at 11(. #ast% although the court

acknowledged the absence of administrativeentanglement% it found that excessive entanglement has

been fostered as a result of the political divisiveness ofincluding the creche in the celebration. +d"# at 119,

11(0. )he city was permanently en*oined fromincluding the creche in the display.

" divided panel of the Court of "ppeals for the-irst Circuit affirmed. 691 F"2d 1029 )19(2*. egranted certiorari% %60 &"S" 10(0 )19($*% and wereverse.

!!

"

EFFF#4dB@G E@G)his Court has explained thatthe purpose of the 4stablishment and Free E-ercise

Clauses of the First Amendment is

3to prevent% as far as possible% the intrusion of eitherEthe church or the stateG EFF1@DAG into the precincts ofthe other.3 .emon !" /urtman# %0$ &"S" 602# 61%

)191*. "t the same time% however% the Court has recogni(edthat

3total separation is not possible in an absolutesense. &ome relationship between government andreligious organi(ations is inevitable.3 +bid .

!n every Establishment Clause case% we mustreconcile the inescapable tension between theob*ective of preventing unnecessary intrusion of eitherthe church or the state upon the other% and the realitythat% as the Court has so often noted% total separation ofthe two is not possible.

EF:;@G EFFF#4dB7G E7G)he Court has sometimes

described the eligion Clauses as erecting EFFF:18G a3wall3 between church and state% see% e" "# E!erson !"

oard of Education# $$0 &"S" 1# 1( )19%*. )heconcept of a 3wall3 of separation is a useful figure ofspeech probably deriving from views of )homas

0efferson. 1 )he metaphor has served as a reminder thatthe Establishment Clause forbids an established church

or anything approaching it. /ut the metaphor itself isnot a wholly accurate description of the practicalaspects of the relationship that in fact exists betweenchurch and state.

1 &ee 3e4nolds !" &nited States# 9( &"S" 1%5#

16% )1(9* +2uoting reply from )homas0efferson to an address by a committee of theanbury /aptist "ssociation +0anuary 1%1>8<,,.

EFFF#4dBDG EDG5o significant segment of oursociety and no institution within it can exist in avacuum or in total or absolute isolation from all theother parts% much less from government. 3!t has never

been thought either possible or desirable to enforce aregime of total separation . . . .3 Committee for ublic

Education 3eliious .ibert4 !" 748uist# %1$ &"S"56# 60 )19$*.5or does the Constitution re2uirecomplete separation of church and state? itaffirmatively mandates accommodation% not merelytolerance% of all religions% and forbids hostility towardany. &ee% e" "# orach !" Clauson# $%$ &"S" $06# $1%#

$15 )1952*? +llinois e- rel" cCollum !" oard of

Education# $$$ &"S" 20$# 211 )19%(*. "nything lesswould re2uire the 3callous indifference3 we have saidwas never intended by the Establishment Clause.

orach# supra# at $1%. !ndeed% we have observed% suchhostility would bring us into 3war with our nationaltradition as embodied in the First Amendment'sguaranty of the free exercise of religion.3 cCollum#

supra# at 211,212.

/

)he Court's interpretation of the Establishment

Clause has comported with what history reveals wasthe contemporaneous understanding of its guarantees." significant example EF:;7G of the contemporaneous

understanding of that Clause is found in the events of

the first week of the -irst &ession of the -irst Congressin 1;>A. !n the very week that Congress approved the

Establishment Clause as part of the ill of 3ihts for

submission to the states% it enacted legislation providing for paid Chaplains for the Bouse and &enate.

!n arsh !" Chambers# %6$ &"S" ($ )19($*% we notedthat 1; Members of that -irst Congress had beenelegates to the Constitutional Convention wherefreedom of speech% press% and religion and antagonismtoward an established church were sub*ects of fre2uentdiscussion. e saw no conflict with the

Establishment Clause when 5ebraska employedmembers of the clergy as official legislative Chaplainsto give opening prayers at sessions of the statelegislature. +d"# at 91.

EFFF#4dB:G E:G)he interpretation of the Establishment Clause by Congress in 1;>A takes onspecial significance in light of the Court's emphasis

that the -irst Congress

3was a Congress whose constitutional EFFF:11G

decisions have always been regarded% as they should be regarded% as of the greatest weight in theinterpretation of that EFF1@:8G fundamentalinstrument%3 4ers !" &nited States# 22 &"S" 52# 1%,

15 )1926*. !t is clear that neither the 1; draftsmen of theConstitution who were Members of the -irst Congress%nor the Congress of 1;>A% saw any establishment

problem in the employment of congressional

Chaplains to offer daily prayers in the Congress% a practice that has continued for nearly two centuries. !twould be difficult to identify a more striking exampleof the accommodation of religious belief intended by

the -ramers.

C

)here is an unbroken history of officialacknowledgment by all three branches of governmentof the role of religion in "merican life from at least1;>A. &eldom in our opinions was this more

affirmatively expressed than in 0ustice ouglas'



Page 7

opinion for the Court validating a program allowingrelease of EF:;DG public school students from classesto attend off=campus religious exercises. e*ecting a

claim that the program violated the EstablishmentClause% the Court asserted pointedly9

3e are a religious people whose institutions

presuppose a &upreme /eing.3 orach !" Clauson#

supra# at $1$. &ee also Abinton School :istrict !" Schempp# $%&"S" 20$# 21$ )196$*.

ur history is replete with official references tothe value and invocation of ivine guidance indeliberations and pronouncements of the -ounding-athers and contemporary leaders. /eginning in theearly colonial period long before !ndependence% a dayof )hanksgiving was celebrated as a religious holiday

to give thanks for the bounties of 5ature as gifts from6od. President ashington and his successors

proclaimed )hanksgiving% with all its religiousovertones% a day of national celebration < and Congressmade it a 5ational Boliday more than a century ago.Ch. 1:;% 1: &tat. 1:>. )hat holiday has not lost its

theme of expressing thanks for ivine aid @ EFFF:1<Gany more than has Christmas lost its religioussignificance.

< )he day after the First Amendment was proposed% Congress urged Presidentashington to proclaim 3a day of public

thanksgiving and prayer% to be observed byacknowledging with grateful hearts the manyand signal favours of "lmighty 6od.3 &ee ".&tokes H #. Pfeffer% Church and &tate in the$nited &tates >; +rev. 1st ed. 1A:7,. Presidentashington proclaimed 5ovember <:% 1;>A% aday of thanksgiving to 3EofferG our prayers andsupplications to the 6reat #ord and uler of

5ations% and beseech Bim to pardon our

national and other transgressions . . . .3 1 0.ichardson% " Compilation of the Messagesand Papers of the Presidents 1;>A=1>A;% p. :7+1>AA,.

Presidents "dams and Madison alsoissued )hanksgiving Proclamations% as havealmost all our Presidents% see @ ". &tokes%

Church and &tate in the $nited &tates 1>8=1A@+1AD8,% through the incumbent% see

Presidential Proclamation 5o. 7>>@% @ C- :>+1A><,.

@ "n example is found in Presidentoosevelt's 1A77 Proclamation of)hanksgiving9

3E!tG is fitting that we give thanks withspecial fervor to our Beavenly -ather for themercies we have received individually and asa nation and for the blessings Be has restored%through the victories of our arms and those ofour "llies% to Bis children in other lands.

. . . . .

3)o the end that we may bear more

earnest witness to our gratitude to "lmighty6od% ! suggest a nationwide reading of theBoly &criptures during the period from)hanksgiving ay to Christmas.3 PresidentialProclamation 5o. <:<A% D> &tat. 11:8.

President eagan and his immediate predecessors have issued similarProclamations. &ee% e" .% PresidentialProclamation 5o. D8A>% @ C- A7 +1A>7,?Presidential Proclamation 5o. 7>8@% @ C-11; +1A>1,? Presidential Proclamation 5o.

7@@@% @ C- 71A +1A;1=1A;D Comp.,?Presidential Proclamation 5o. 78A@% @ C- >A

+1A;1=1A;D Comp.,? Presidential Proclamation 5o. @;D<% @ C- ;D +1A::=1A;8 Comp.,?Presidential Proclamation 5o. @D:8% @ C-@1< +1ADA=1A:@ Comp.,.

EF:;:G 4xecutive rders and other officialannouncements of Presidents and of the Congress have

proclaimed both Christmas and )hanksgiving 5ationalBolidays in religious terms. "nd% by "cts ofCongress% it has long been the practice that federalemployees are released from duties on these 5ationalBolidays% while being paid from the same publicrevenues that provide EFF1@:1G the compensation of

the Chaplains of the &enate and the Bouse and themilitary services. &ee 0. es. D% <@ &tat. D1:. )hus% itis clear that 6overnment has long recogni(ed == indeed

it has subsidi(ed == holidays with religioussignificance.

ther examples of reference to our religious

heritage are found in the statutorily prescribed nationalmotto 3!n 6od e )rust%3 $6 &" S" C" ; 1(6 % whichCongress and the President mandated for our currency%see $1 &" S" C" ; 5112)d*)1* )19(2 ed"* % and in thelanguage 3ne nation under 6od%3 as part of thePledge of "llegiance to the "merican flag. )hat

pledge is recited by many thousands of public schoolchildren == and adults == every year.

"rt galleries supported by public revenues displayreligious paintings of the 1Dth and 1:th centuries%

predominantly inspired by one religious faith. )he 5ational 6allery in EF:;;G ashington% maintainedwith 6overnment support% for example% has long

exhibited masterpieces with religious messages%notably the #ast &upper% and paintings depicting the/irth of Christ% the Crucifixion% and the esurrection%among many others with explicit Christian themes andmessages. 7 )he very chamber in which oral argumentson this case were heard is decorated with a notable and

permanent == not seasonal == symbol of religion9 Moseswith the )en Commandments. Congress has long

provided chapels in the Capitol for religious worshipand meditation.

7 )he 5ational 6allery regularly exhibitsmore than <88 similar religious paintings.

)here are countless other illustrations of the6overnment's acknowledgment of our religiousheritage and governmental sponsorship of graphicmanifestations of that heritage. Congress has directedthe President to proclaim a 5ational ay of Prayereach year 3on which EdayG the people of the $nited&tates may turn to 6od in prayer and meditation atchurches% in groups% and as individuals.3 $6 &" S" C" ;

169h. ur Presidents have repeatedly issued suchProclamations. D Presidential Proclamations andmessages have also issued to commemorate 0ewish

Beritage eek% Presidential Proclamation 5o. 7>77% @



Page D

C- @8 +1A><,% and the 0ewish Bigh Boly ays% 1;eekly Comp. of Pres. oc. 18D> +1A>1,. EFFF:1@Gne cannot look at even this brief resume without

finding that our history is pervaded by expressions ofreligious beliefs such as are found in orach. 42ually

pervasive is the evidence of accommodation of allfaiths and all forms of religious expression% and

hostility toward none. )hrough this accommodation%EF:;>G as 0ustice ouglas observed% governmentalaction has 3EfollowedG the best of our traditions3 and3ErespectedG the religious nature of our people.3 $%$

&"S"# at $1%.

D &ee% e" .% Presidential Proclamation 5o.D81;% @ C- > +1A>7,? PresidentialProclamation 5o. 7;AD% @ C- 18A +1A>1,?Presidential Proclamation 5o. 7@;A% @ C-7>: +1A;1=1A;D Comp.,? PresidentialProclamation 5o. 78>;% @ C- >1 +1A;1=1A;D

Comp.,? Presidential Proclamation 5o. @>1<%

@ C- 1DD +1A::=1A;8 Comp.,? PresidentialProclamation 5o. @D81% @ C- <<> +1ADA=1A:@ Comp.,.

!!!

)his history may help explain why the Court

consistently has declined to take a rigid% absolutistview of the Establishment Clause. e have refused3to construe the eligion Clauses with a literalness thatwould undermine the ultimate constitutional ob*ective

as illuminated b4 histor4"< =al !" >a- Comm'n# $9&"S" 66%# 61 )190* +emphasis added,. !n ourmodern% complex society% whose traditions and

constitutional underpinnings rest on and encouragediversity and pluralism in all areas% an absolutistapproach in applying the Establishment Clause issimplistic and has been uniformly re*ected by theCourt.

ather than mechanically invalidating allgovernmental conduct or statutes that confer benefitsor give special recognition to religion in general or toone faith == as an absolutist approach would dictate ==the Court has scrutini(ed challenged legislation orofficial conduct to determine whether% in EFF1@:<G

reality% it establishes a religion or religious faith% or

tends to do so. &ee =al# supra# at 669. 0oseph &torywrote a century and a half ago9

3)he real ob*ect of the E-irstG "mendmentwas . . . to prevent any national ecclesiasticalestablishment% which should give to an hierarchy the

exclusive patronage of the national government.3 @ 0.

&tory% Commentaries on the Constitution of the $nited&tates ;<> +1>@@,.

!n each case% the in2uiry calls for line=drawing? no

fixed% per se rule can be framed. )he EstablishmentClause like the ue Process Clauses is not a precise%detailed provision in a legal code capable of readyapplication. )he purpose of the Establishment Clause

3was to state an ob*ective% not to write a statute.3 =al# supra# at 66(. )he line between permissiblerelationships and those barred by the Clause can noEF:;AG more be straight and unwavering than due

process can be defined in a single stroke or phrase ortest. )he Clause erects a 3blurred% indistinct% and

variable barrier depending on all the circumstances ofa particular relationship.3 .emon# %0$ &"S"# at 61%.

!n the line=drawing process we have often foundit useful to in2uire whether the challenged law orconduct has a secular purpose% whether its principal or

primary effect is to advance or inhibit religion% andwhether it creates an excessive entanglement ofgovernment with religion. .emon# supra" /ut% we have

repeatedly emphasi(ed our unwillingness to beconfined to any single test or criterion in this sensitive

area. &ee% e" "# >ilton !" 3ichardson# %0$ &"S" 62#6,6( EFFF:17G )191*? 748uist# %1$ &"S"# at $ .!n two cases% the Court did not even apply the .emon

3test.3 e did not% for example% consider that analysisrelevant in arsh !" Chambers# %6$ &"S" ($ )19($*.

5or did we find .emon useful in .arson !" ?alente#

%56 &"S" 22( )19(2*% where there was substantialevidence of overt discrimination against a particularchurch.

!n this case% the focus of our in2uiry must be onthe creche in the context of the Christmas season. &ee%e" "# Stone !" @raham# %%9 &"S" $9 )19(0* )per

curiam* Abinton School :istrict !" Schempp# $%

&"S" 20$ )196$*. !n Stone% for example% we invalidateda state statute re2uiring the posting of a copy of the

)en Commandments on public classroom walls. /utthe Court carefully pointed out that theCommandments were posted purely as a religious

admonition% not 3integrated into the school curriculum%where the /ible may constitutionally be used in an

appropriate study of history% civili(ation% ethics%comparative religion% or the like.3 %%9 &"S"# at %2.

&imilarly% in Abinton% although the Court struck downthe practices in two &tates re2uiring daily /iblereadings in public schools% it specifically noted thatnothing in the Court's holding was intended to3EindicateG that such study of the /ible or of religion%when presented ob*ectively as part of a secular

program of education% may not be effected consistentlyEF:>8G with the First Amendment .3 $% &"S"# at 225.-ocus exclusively on the religious component of anyactivity would inevitably lead to its invalidation underthe Establishment Clause.

)he Court has invalidated legislation orgovernmental action on the ground that a secular

purpose was lacking% but only when it has concluded

there was no 2uestion that the statute or activity wasmotivated wholly by religious considerations. &ee% e"

"# Stone !" @raham# supra# at %1? Epperson !" ArBansas# $9$ &"S" 9# 10,109 )196(*? Abinton

School :istrict !" Schempp# supra# at 22$,22%? Enel!" ?itale# $0 &"S" %21# %2%,%25 )1962*. 4ven whereEFF1@:@G the benefits to religion were substantial% asin E!erson !" oard of Education# $$0 &"S" 1 )19%* ?

oard of Education !" Allen# $92 &"S" 2$6 )196(*?=al# supra? and >ilton# supra% we saw a secular

purpose and no conflict with the Establishment Clause.Cf. .arBin !" @rendel's :en# +nc"# %59 &"S" 116

)19(2*.

EFFF#4dB;G E;G)he istrict Court inferred from thereligious nature of the creche that the city has no

secular purpose for the display. !n so doing% it re*ectedthe city's claim that its reasons for including the creche

are essentially the same as its reasons for sponsoringthe display as a whole. )he istrict Court plainlyerred by focusing almost exclusively on the creche.hen viewed in the proper context of the ChristmasBoliday season% it is apparent that% on this record% thereis insufficient evidence to establish that the inclusionof the creche is a purposeful or surreptitious effort to



Page :

express some kind of subtle governmental advocacy ofa particular religious message. !n a pluralistic society avariety of motives and purposes are implicated. )he

city% like the Congresses EFFF:1DG and Presidents%however% has principally taken note of a significant

historical religious event long celebrated in theestern orld. )he creche in the display depicts the

historical origins of this traditional event longrecogni(ed as a 5ational Boliday. &ee Allen !" HicBel#

1$( &" S" App" :" C" $1# %2% F"2d 9%% EF:>1G )190*?Citiens Concerned for Separation of Church and

State !" Cit4 and Count4 of :en!er# 526 F"Supp" 1$10

)Colo" 19(1*.

EFFF#4dB>G E>G)he narrow 2uestion is whetherthere is a secular purpose for Pawtucket's display ofthe creche. )he display is sponsored by the city tocelebrate the Boliday and to depict the origins of thatBoliday. )hese are legitimate secular purposes. : )he

istrict Court's inference% drawn from the religious

nature of the creche% that the city has no secular purpose was% on this record% clearly erroneous. ;

: )he city contends that the purposes of thedisplay are 3exclusively secular.3 e holdonly that Pawtucket has a secular purpose forits display% which is all that .emon !"

/urtman# %0$ &"S" 602 )191*% re2uires.ere the test that the government must have3exclusively secular3 ob*ectives% much of theconduct and legislation this Court hasapproved in the past would have beeninvalidated.; 0$&)!C4 /455"5 argues that the city'sob*ectives could have been achieved without

including the creche in the display% post % at:AA. )rue or not% that is irrelevant. )he

2uestion is whether the display of the crecheviolates the Establishment Clause.

)he istrict Court found that the primary effectof including the creche is to confer a substantial andimpermissible benefit on religion in general and on theChristian faith in particular. Comparisons of therelative benefits to religion of different forms ofgovernmental support are elusive and difficult tomake. /ut to conclude that the primary effect of

including the creche is to advance religion in violationof the Establishment Clause would re2uire that weview it as more beneficial to and more an endorsement

of religion% for example% than expenditure of largesums of public money for textbooks supplied

throughout the country to students attending church=sponsored schools% oard of Education !" Allen# supra?> expenditure of public funds for transportation ofEF:><G students to church=sponsored schools%

E!erson !" oard of Education# supra? A federal grantsfor college buildings of church=sponsored institutionsof higher education combining secular and religiouseducation% >ilton !" 3ichardson# %0$ &"S" 62

EFF1@:7G )191*? 18 noncategorical grants to church=sponsored colleges and universities% 3oemer !" oard

of ublic =orBs# %26 &"S" $6 )196* ? and the taxexemptions for church properties sanctioned in =al !"

>a- Comm'n# $9 &"S" 66% )190*. !t would alsore2uire that we view it as more of an endorsement of

religion than the &unday Closing EFFF:1:G #aws

upheld in c@oan !" ar4land# $66 &"S" %20)1961*? 11 the release time program for religioustraining in orach !" Clauson# $%$ &"S" $06 )1952*?and the legislative prayers upheld in arsh !"Chambers# %6$ &"S" ($ )19($*.

> )he Allen Court noted that 3EperhapsG free books make it more likely that some childrenchoose to attend a sectarian school . . . .3 $92

&"S"# at 2%%.A !n E!erson% the Court acknowledged that3EitG is undoubtedly true that children arehelped to get to church schools%3 and that3some of the children might not be sent to thechurch schools if the parents were compelled

to pay their children's bus fares out of theirown pockets . . . .3 $$0 &"S"# at 1 .

18 e recogni(ed in >ilton that theconstruction grants 3Esurely aidedG3 theinstitutions that received them. %0$ &"S"# at69.11 3!n c@oan v. ar4land . . . &undayClosing #aws were sustained even though oneof their undeniable effects was to render itsomewhat more likely that citi(ens wouldrespect religious institutions and even attend

religious services.3 Committee for ublic

Education 3eliious .ibert4 !" 748uist# %1$

&"S" 56# 5,6 )19$*.

e are unable to discern a greater aid to religionderiving from inclusion of the creche than from these

benefits and endorsements previously held not

violative of the Establishment Clause. hat was saidabout the legislative prayers in arsh# supra# at 92%and implied about the &unday Closing #aws in

c@oan is true of the city's inclusion of the creche9its 3reason or effect merely happens to coincide orharmoni(e with the tenets of some . . . religions.3 &ee

c@oan# supra# at %%2.

)his case differs significantly from .arBin !"@rendel's :en# +nc"# supra% and cCollum% wherereligion was substantially EF:>@G aided. !n @rendel's

:en% important governmental power == a licensing vetoauthority == had been vested in churches. !n cCollum%government had made religious instruction available in

public school classrooms? the &tate had not only usedthe public school buildings for the teaching of religion%it had 3EaffordedG sectarian groups an invaluableaid . . . EbyG EprovidingG pupils for their religiousclasses through use of the &tate's compulsory publicschool machinery.3 $$$ &"S"# at 212. 5o comparable

benefit to religion is discernible here.

EFFF#4dBAG EAG)he dissent asserts some observersmay perceive that the city has aligned itself with theChristian faith by including a Christian symbol in itsdisplay and that this serves to advance religion. ecan assume% aruendo% that the display advances

religion in a sense? but our precedents plainlycontemplate that on occasion some advancement ofreligion will result from governmental action. )heCourt has made it abundantly clear% however% that 3notevery law that confers an 'indirect%' 'remote%' or'incidental' benefit upon EreligionG is% for that reasonalone% constitutionally invalid.3 748uist# %1$ &"S"# at

1? see also =idmar !" ?incent# %5% &"S" 26$# 2$

)19(1*.Bere% whatever benefit there is to one faith or

religion or to all religions% is indirect% remote% andincidental? display of the creche is no more anadvancement or endorsement of religion than theCongressional and 4xecutive recognition of the origins



Page ;

of the Boliday itself as 3Christ's Mass%3 or theexhibition of literally hundreds of religious paintingsin governmentally supported museums.

)he istrict Court found that there had been noadministrative entanglement between religion and state

resulting from the city's ownership and use of the

creche. 525 F"Supp"# at 119. /ut it went on to holdthat some political divisiveness was engendered by thislitigation. Coupled with its finding of animpermissible sectarian purpose and effect% this

persuaded the court that there was 3excessiveentanglement.3 )he Court of "ppeals expresslydeclined to EF:>7G accept the istrict Court's findingEFFF:1;G that inclusion of the creche has EFF1@:DGcaused political divisiveness along religious lines% andnoted that this Court has never held that politicaldivisiveness alone was sufficient to invalidategovernment conduct.

4ntanglement is a 2uestion of kind and degree. !n

this case% however% there is no reason to disturb theistrict Court's finding on the absence ofadministrative entanglement. )here is no evidence ofcontact with church authorities concerning the contentor design of the exhibit prior to or since Pawtucket's

purchase of the creche. 5o expenditures for

maintenance of the creche have been necessary? andsince the city owns the creche% now valued at <88%the tangible material it contributes is de minimis. !nmany respects the display re2uires far less ongoing%day=to=day interaction between church and state thanreligious paintings in public galleries. )here is nothinghere% of course% like the 3comprehensive%

discriminating% and continuing state surveillance3 orthe 3enduring entanglement3 present in .emon# %0$

&"S"# at 619,622.

EFFF#4dB18G E18G)he Court of "ppeals correctlyobserved that this Court has not held that politicaldivisiveness alone can serve to invalidate otherwise

permissible conduct. "nd we decline to so hold today.)his case does not involve a direct subsidy to church=

sponsored schools or colleges% or other religiousinstitutions% and hence no in2uiry into potential

political divisiveness is even called for% ueller !" Allen# %6$ &"S" $((# %0$,%0%# n" 11 )19($*. !n any

event% apart from this litigation there is no evidence of political friction or divisiveness over the creche in the78=year history of Pawtucket's Christmas celebration.

)he istrict Court stated that the inclusion of thecreche for the 78 years has been 3marked by no

apparent dissension3 and that the display has had a3calm history.3 525 F"Supp"# at 119. Curiously% it

went on to hold that the political divisivenessengendered by this lawsuit was evidence of excessiveentanglement. " litigant cannot% by the very act ofcommencing a lawsuit% however% create the appearanceEF:>DG of divisiveness and then exploit it as evidenceof entanglement.

EFFF#4dB1/G E1/G e are satisfied that thecity has a secular purpose for including the creche% thatthe city has not impermissibly advanced religion% andthat including the creche does not create excessiveentanglement between religion and government.

X x x x

I!

EFFF#4dB1CG E1CG EFFF#4dB11"G E11"GEFFF#4dB1<"G E1<"G e hold that% notwithstandingthe religious significance of the creche% the city ofPawtucket has not violated the Establishment Clause

of the First Amendment . 1@ "ccordingly% the *udgmentof the Court of "ppeals is reversed.

1@ EFFF#4dB11/G E11/G

EFFF#4dB1</G E1</G)he Court of "ppealsviewed .arson !" ?alente# %56 &"S" 22(

)19(2*% as commanding a 3strict scrutiny3 due

to the city's ownership of the <88 crechewhich it considers as a discrimination betweenChristian and other religions. !t is correct thatwe re2uire strict scrutiny of a statute or

practice patently discriminatory on its face./ut we are unable to see this display% or any

part of it% as explicitly discriminatory in thesense contemplated in .arson.

+t is so ordered .

0

DISSENT /Y /455"5

DISSENT

0$&)!C4 /455"5% with whom 0$&)!C4M"&B"##% 0$&)!C4 /#"CJM$5% and 0$&)!C4

&)4I45& *oin% dissenting.

)he principles announced in the compact phrasesof the eligion Clauses have% as the Court todayEFFF:<7G reminds us% ante% at :;>=:;A% proved

difficult to apply. -aced with that uncertainty% theCourt properly looks for guidance to the settled testannounced in .emon !" /urtman# %0$ &"S" 602)191*% for assessing whether a challengedgovernmental practice involves an impermissible steptoward the establishment of religion. Ante% at :;A."pplying that test to this case% the EF:ADG Courtreaches an essentially narrow result which turnslargely upon the particular holiday context in whichthe city of Pawtucket's nativity scene appeared. )he

Court's decision implicitly leaves open 2uestionsconcerning the constitutionality of the public displayon public property of a creche standing alone% or the

public display of other distinctively religious symbolssuch as a cross. 1 espite the narrow contoursEFF1@;1G of the Court's opinion% our precedents in my

view compel the holding that Pawtucket's inclusion ofa life=si(ed display depicting the biblical description ofthe birth of Christ as part of its annual Christmascelebration is unconstitutional. 5othing in the historyof such practices or the setting in which the city'screche is presented obscures or diminishes the plainfact that Pawtucket's action amounts to an

impermissible governmental endorsement of a particular faith.

1 -or instance% nothing in the Court's opinionsuggests that the Court of "ppeals for the)hird Circuit erred when it found that a city=financed platform and cross used by Pope0ohn Paul !! to celebrate Mass and deliver asermon during his 1A;A visit to Philadelphia

was an unconstitutional expenditure of cityfunds. @ilfillan !" Cit4 of hiladelphia# 6$

F"2d 92% )19(0*. 5or does the Court provideany basis for disputing the holding of the



Page >

Court of "ppeals for the 4leventh Circuit thatthe erection and maintenance of an illuminated#atin cross on state park property violates the

Establishment Clause. American Ci!il .iberties &nion of @eoria !" 3abun Count4

Chamber of Commerce# +nc"# 69( F"2d 109()19($*. &ee also Fo- !" Cit4 of .os Aneles#

22 Cal" $d 92# 5( " 2d 66$ )19(*? .oe !"Cit4 of Euene# 25% Dre" 5$9# %6$ " 2d $60

)1969*. "nd given the Court's focus upon theotherwise secular setting of the Pawtucketcreche% it remains uncertain whether absentsuch secular symbols as &anta Claus' house% atalking wishing well% and cutout clowns and

bears% a similar nativity scene would passmuster under the Court's standard. Cf.

cCrear4 !" Stone# 55 F"Supp" 1112 )S:7

19($* +holding that village did not violate Establishment Clause by refusing to permit a

private group to erect a creche in a public

park,.

!

#ast )erm% ! expressed the hope that the Court'sdecision in arsh !" Chambers# %6$ &"S" ($ )19($*%would prove to be only a single% aberrant departure

from our settled method EF:A:G of analy(ing Establishment Clause cases. +d"# at 96 +/455"5%0.% dissenting,. )hat the Court today returns to thesettled analysis of our prior cases gratifies that hope."t the same time% the Court's less=than=vigorousapplication of the .emon test suggests that itscommitment to those standards may only be

superficial.

<

"fter reviewing the Court's EFFF:<DGopinion% ! am convinced that this case appears hard not because the principles of decision are obscure% but because the Christmas holiday seems so familiar andagreeable. "lthough the EF:A;G Court's reluctance todisturb a community's chosen method of celebratingsuch an agreeable holiday is understandable% thatcannot *ustify the Court's departure from controlling

precedent. !n my view% Pawtucket's EFF1@;<G

maintenance and display at public expense of a symbolas distinctively sectarian as a creche simply cannot bes2uared with our prior cases. "nd it is plainly contraryto the purposes and values of the Establishment

Clause to pretend% as the Court does% that the otherwisesecular setting of Pawtucket's nativity scene dilutes insome fashion the creche's singular religiosity% or that

the city's annual display reflects nothing more than an3acknowledgment3 of our shared national heritage.

5either the character of the Christmas holiday itself%nor our heritage of religious expression supports this

result. !ndeed% our remarkable and precious religiousdiversity as a 5ation% see >orcaso !" =atBins# $6 &"S"

%((# %95 )1961*? Abinton School :ist . v. Schempp#

$% &"S" 20$# 2%0,2%1 )196$* +/455"5% 0.%concurring,% which the Establishment Clause seeks to

protect% runs directly counter to today's decision.

< "lthough ! agree with the Court that nosingle formula can ever fully capture theanalysis that may be necessary to resolvedifficult Establishment Clause problems% seen. 11% infra% ! fail to understand the Court's

insistence upon referring to the settled test set

forth in .emon as simply one path that may befollowed or not at the Court's option. &eeante% at :;A. )he Court's citation of >ilton !"

3ichardson# %0$ &"S" 62 )191*% andCommittee for ublic Education 3eliious

.ibert4 !" 748uist# %1$ &"S" 56 )19$*% tosupport this assertion is meaningless because

both of those decisions applied the three=prong .emon test. !ndeed% ever since its initialformulation% the .emon test has beenconsistently looked upon as the fundamentaltool of Establishment Clause analysis. !n

748uist % the Court described the test inmandatory terms9 3)aken together% EourGdecisions dictate that to pass muster under the

Establishment Clause the law in 2uestionEmust satisfy the three elements of the .emon

testG.3 %1$ &"S"# at 2,$. "nd *ust last)erm in .arBin !" @rendel's :en# +nc"# %59

&"S" 116 )19(2*% )B4 CB!4- 0$&)!C4%speaking for the Court% wrote that 3EthisG Courthas consistently held that a statute must satisfythree criteria Eas set forth in .emonG to passmuster under the Establishment Clause.3 +d"#

at 12$. &ee also Stone !" @raham# %%9 &"S"

$9# %0,%1 )19(0* )per curiam* =olman !"

=alter# %$$ &"S" 229# 2$5,2$6 )19*. !naddition% the Court's citation of .arson !"

?alente# %56 &"S" 22( )19(2*% also fails to

support the Court's assertion. !n .arson% wefirst reviewed a state law granting a

denominational preference under a 3strictscrutiny3 analysis% id"# at 2%6,251% but then

concluded by f inding the s ta tuteunconstitutional under the .emon analysis aswell. +d"# at 251,255. )hus% despite theCourt's efforts to evade the point% the factremains that arsh !" Chambers# %6$ &"S"

($ )19($*% is the only case in which the Courthas not applied either the .emon or a 3strictscrutiny3 analysis. ! can only conclude thatwith today's unsupported assertion% the Courthopes to provide a belated excuse for thefailure in arsh to address the analysis of the

.emon test.

"

"s we have sought to meet new problems arisingunder the Establishment Clause% our decisions% withfew exceptions% have demanded that a challengedgovernmental practice satisfy the following criteria9

3-irst% the EpracticeG must have a secular legislative

purpose? second% its principal or primary effect must beone that neither advances nor inhibits religion? finally%

EitG must not foster 'an excessive governmententanglement with religion.'3 .emon !" /urtman# %0$

&"S"# at 612,61$ +citations omitted,. @

@ &ee .arBin !" @rendel's :en# +nc"# supra# at

12$? =idmar !" ?incent# %5% &"S" 26$# 21

)19(1*? =olman !" =alter# %$$ &"S" 229# 2$6

)19*? =al !" >a- Comm'n# $9 &"S" 66%#

6% )190*. "s 0$&)!C4 'C55'sconcurring opinion rightly observes% this test

provides a helpful analytical tool inconsidering the central 2uestion posed in thiscase == whether Pawtucket has run afoul of the

Establishment Clause by endorsing religion

through its display of the creche. Ante% at :A8.



Page A

EF:A>G )his well=defined three=part EFFF:<:Gtest expresses the essential concerns animating the

Establishment Clause. )hus% the test is designed to

ensure that the organs of government remain strictlyseparate and apart from religious affairs% for 3a union

of government and religion tends to destroygovernment and degrade religion.3 Enel !" ?itale#

$0 &"S" %21# %$1 )1962*. "nd it seeks to guaranteethat government maintains a position of neutrality withrespect to religion and neither advances nor inhibitsthe promulgation and practice of religious beliefs.

E!erson !" oard of Education# $$0 &"S" 1# 15 )19%*

+35either Ea &tate nor the -ederal 6overnmentG can pass laws which aid one religion% aid all religions% or prefer one religion over another3,? Epperson !"

ArBansas# $9$ &"S" 9# 10$,10% )196(*? Committee for

ublic Education 3eliious .ibert4 !" 748uist# %1$

&"S" 56# 92,9$ )19$*. !n this regard% we must bealert in our examination of any challenged practice not

only for an official establishment of religion% but also

for those other evils at which the Clause was aimed ==3'sponsorship% financial support% and activeinvolvement of the sovereign in religious activity.'3

Committee for ublic Education 3eliious .ibert4!" 748uist# supra# at 2 +2uoting =al !" >a-

Comm'n# $9 &"S" 66%# 66( )190**.

"pplying the three=part test to Pawtucket'screche% ! am persuaded that the city's inclusion of thecreche in its Christmas display simply does not reflecta 3clearly secular . . . purpose.3 748uist# supra# at $.$nlike the typical case in which the record revealssome contemporaneous expression of a clear purposeto advance religion% see% e" "# Epperson !" ArBansas#

supra# at 10,109? Enel !" EFF1@;@G ?itale# supra#at %2$% or% conversely% a clear secular purpose% see% e"

"# .emon !" /urtman# supra# at 61$? =olman !"

=alter# EF:AAG %$$ &"S" 229# 2$6 )19*% here we

have no explicit statement of purpose by Pawtucket'smunicipal government accompanying its decision to

purchase% display% and maintain the creche.6overnmental purpose may nevertheless be inferred.-or instance% in Stone !" @raham# %%9 &"S" $9# %1)19(0* )per curiam*% this Court found% despite the&tate's avowed purpose of reminding schoolchildren ofthe secular application of the commands of theecalogue% that the 3pre=eminent purpose for posting

the )en Commandments on schoolroom walls is plainly religious in nature.3 !n the present case% the cityclaims that its purposes were exclusively secular.

Pawtucket sought% according to this view% onlyEFFF:<;G to participate in the celebration of a national

holiday and to attract people to the downtown area inorder to promote pre=Christmas retail sales and to help

engender the spirit of goodwill and neighborlinesscommonly associated with the Christmas season. /rieffor Petitioners <A.

espite these assertions% two compelling aspectsof this case indicate that our generally prudent3reluctance to attribute unconstitutional motives3 to agovernmental body% ueller !" Allen# %6$ &"S" $((#

$9% )19($*% should be overcome. -irst% as was true in .arBin !" @rendel's :en# +nc"# %59 &"S" 116# 12$,12%

)19(2*% all of Pawtucket's 3valid secular ob*ectives can be readily accomplished by other means.3 7 Plainly% thecity's interest in celebrating the holiday and in

promoting both retail sales and goodwill are fullyserved by the elaborate display of &anta Claus%

reindeer% and wishing wells that are already a part ofPawtucket's annual Christmas EF;88G display. D More

importantly% the nativity scene% unlike every otherelement of the Bodgson Park display% reflects asectarian exclusivity that the avowed purposes ofcelebrating the holiday season and promoting retailcommerce simply do not encompass. )o be foundconstitutional% Pawtucket's seasonal celebration mustat least be nondenominational and not serve to

promote religion. )he inclusion of a distinctivelyreligious element like the creche% however%demonstrates that a narrower sectarian purpose lay

behind the decision to include a nativity scene. )hatthe creche retained this religious character for the

people and municipal government of Pawtucket issuggested by the Mayor's testimony at trial in which he

stated that for him% as well as others in the city% theeffort to eliminate the nativity scene from Pawtucket's

Christmas celebration 3is a step towards establishinganother religion% non=religion that it may be.3 "pp.188. : EFF1@;7G Plainly% the city EFFF:<>G and itsleaders understood that the inclusion of the creche inits display would serve the wholly religious purposeEF;81G of 3EkeepingG 'Christ in Christmas.'3 525

F"Supp" 1150# 11$ )3+ 19(1*. -rom this record%

therefore% it is impossible to say with the kind ofconfidence that was possible in c@oan !"

ar4land# $66 &"S" %20# %%5 )1961*% that a wholly

secular goal predominates.

7 ! find it pu((ling% to say the least% that theCourt today should find 3irrelevant%3 ante% at

:>1% n. ;% the fact that the city's secularob*ectives can be readily and fullyaccomplished without including the creche%since only last )erm in .arBin !" @rendel's

:en# +nc"# %59 &"S"# at 12$,12%% the Courtrelied upon precisely the same point in strikingdown a Massachusetts statute which vested inchurch governing bodies the power to vetoapplications for li2uor licenses. !t seems theCourt is willing to alter its analysis from )ermto )erm in order to suit its preferred results.D &everal representatives of Pawtucket's

business community testified that although the

overall Christmas display played an importantrole in promoting downtown holiday trade% thedisplay would serve this purpose e2ually welleven if the creche were removed. "pp. 1@@%1@D% 1@A=178. )he Mayor also testified that ifthe nativity scene had to be eliminated% thecity would continue to erect the annual displaywithout it. +d"# at 115.: )he istrict Court also admitted intoevidence% without ob*ection from petitioners% aconsiderable amount of correspondencereceived by Mayor #ynch in support ofmaintaining the creche in the city's Christmasdisplay. ne such letter% which appears to berepresentative of the views of many%

congratulates the Mayor on his efforts 3tokeep 'Christ' in Christmas . . . .3 "pp. 1:1. -or

the istrict Court's findings concerning themeaning of these letters% see 525 F"Supp"

1150# 1162 )3+ 19(1* +3verall the tenor ofthe correspondence is that the lawsuitrepresents an attack on the presence of religionas part of the community's life% an attempt todeny the ma*ority the ability to express

publically its beliefs in a desired andtraditionally accepted way3,. -urthermore% as



Page 18

the istrict Court found% 3the City hasaccepted and implemented the view of its

predominantly Christian citi(ens that it is a

'good thing' to have a creche in a Christmasdisplay% . . . because it is a good thing to 'keep

Christ in Christmas.'3 +d"# at 11$.

)he 3primary effect3 of including a nativityscene in the city's display is% as the istrict Courtfound% to place the government's imprimatur ofapproval on the particular religious beliefs exemplified

by the creche. )hose who believe in the message of thenativity receive the uni2ue and exclusive benefit of

public recognition and approval of their views. -ormany% the city's decision to include the creche as partof its extensive and costly efforts to celebrateChristmas can only mean that the prestige of thegovernment has been conferred on the beliefsassociated with the creche% thereby providing 3asignificant symbolic benefit to religion . . . .3 .arBin !"

@rendel's :en# +nc"# supra# at 125,126 . )he effect onminority religious groups% as well as on those who may

re*ect all religion% is to convey the message that theirviews are not similarly worthy of public recognition

nor entitled to public support. ; !t was precisely thissort of religious chauvinism that the Establishment

Clause was intended forever to prohibit. !n this case%as in Enel v. ?itale% 3EwhenG the power% prestige andfinancial support of government is placed behindEF;8<G a particular religious belief% the indirectcoercive pressure upon religious minorities to conformto the prevailing officially approved religion is plain.3$0 &"S"# at %$1. ur decision in =idmar !" ?incent#

%5% &"S" 26$ )19(1*% rests upon the same principle.

)here the Court noted that a state university policy of3e2ual access3 for both secular and religious groupswould 3not confer any imprimatur of state approval3on the religious groups permitted to use the facilities

because 3a broad spectrum of groups3 would be servedand there was no evidence that religious groups would

dominate the forum. +d"# at 2%. Bere% by contrast%Pawtucket itself owns the creche and instead ofextending similar attention to a 3broad spectrum3 ofreligious and secular groups% it has singled outChristianity for special treatment.

; !n this regard% the views expressed by theCalifornia &upreme Court in considering asimilar issue are particularly relevant9

3hen a city so openly promotes thereligious meaning of one religion's holidays%

the benefit reaped by that religion and the

disadvantage suffered by other religions isobvious. )hose persons who do not sharethose holidays are relegated to the status ofoutsiders by their own government? those

persons who do observe those holidays cantake pleasure in seeing the symbol of their

belief given official sanction and specialstatus.3 Fo- !" Cit4 of .os Aneles# 22 Cal" $d#

at (0$# 5( " 2d# at 60 +striking down asunconstitutional the erection of an illuminatedcross in front of city hall,.

&ee also .oe !" Cit4 of Euene# 25%

Dre"# at 5%%,5%6# %6$ " 2d# at $6$.

-inally% it is evident that Pawtucket's inclusion ofa creche as part of its annual Christmas display does

pose a significant threat of fostering EFFF:<AG3excessive entanglement.3 "s the Court notes% ante% at:>@% the istrict Court found no administrativeentanglement in this case% primarily because the cityhad been able to administer the annual display withoutextensive consultation with religious officials. &ee

525 F"Supp"# at 119. f course% there is no reason todisturb that finding% but it is worth noting that after

today's decision% administrative entanglements maywell develop. EFF1@;DG 0ews and other non=Christiangroups% prompted perhaps by the Mayor's remark that

he will include a Menorah in future displays% > can beexpected to press government for inclusion of theirsymbols% and faced with such re2uests% governmentwill have to become involved in accommodating thevarious demands. Cf. Committee for ublic

Education 3eliious .ibert4 !" 748uist# %1$ &"S"# at

96 +3competing efforts Eby religious groupsG to gainor maintain the support of government3 may3EoccasionG considerable civil strife3,. Moreimportantly% although no political divisiveness wasapparent in Pawtucket EF;8@G prior to the filing of

respondents' lawsuit% that act% as the istrict Court

found% unleashed powerful emotional reactions whichdivided the city along religious lines. 525 F"Supp"# at

11(0. )he fact that calm had prevailed prior to this suit

does not immediately suggest the absence of anydivision on the point for% as the istrict Court

observed% the 2uiescence of those opposed to thecreche may have reflected nothing more than their

sense of futility in opposing the ma*ority. +d"# at 119.f course% the Court is correct to note that we havenever held that the potential for divisiveness alone issufficient to invalidate a challenged governmental

practice? we have% nevertheless% repeatedly emphasi(edthat 3too close a proximity3 between religious and civilauthorities% Schempp# $% &"S"# at 259 +/455"5%0.% concurring,% may represent a 3warning signal3 thatthe values embodied in the Establishment Clause are atrisk. Committee for ublic Education 3eliious

.ibert4 !" 748uist# supra# at 9(. A -urthermore% theCourt should not blind itself to the fact that because

communities EF;87G differ in religious composition%

the controversy over whether local governments mayadopt religious symbols EFFF:@8G will continue tofester. !n many communities% non=Christian groupscan be expected to combat practices similar toPawtucket's? this will be so especially in areas wherethere are substantial non=Christian minorities. 18

> &ee "pp. 187.A )he suggestion in ueller !" Allen# %6$

&"S" $((# %0$,%0%# n" 11 )19($*% relied upon by the Court today% see ante% at :>7? ante% at:>A +'C55% 0.% concurring,% that in2uiryinto potential political divisiveness isunnecessary absent direct subsidies to church=sponsored schools or colleges% derives from a

distorted reading of our prior cases. &imply because the Court in .emon == a case

involving such subsidies == in2uired into potential divisiveness while distinguishing

E!erson and Allen == cases not involving suchsubsidies == does not provide any authority forthe proposition that the Court in .emon meantto confine the divisiveness in2uiry only tocases factually identical to .emon itself.!ndeed% in =al % the Court considered the2uestion of divisiveness in the context of state



tax exemptions to all religious institutions. !agree% however% with 0$&)!C4 'C55'shelpful suggestion that while political

divisiveness is 3an evil addressed by the Establishment Clause%3 the ultimate in2uiry

must always focus on 3the character of thegovernment activity that might cause such

divisiveness.3 Ante% at :>A. Baving said that% !should also emphasi(e that ! disagreefundamentally with 0$&)!C4 'C55'sapparent conclusion that Pawtucket's inclusionof the creche is not the kind of governmentalact that may engender sharp division alongreligious lines. )he contrary is demonstrated

by the history of this case.18 )his and similar issues relating togovernmental endorsement of religioussymbols has engendered continuingcontroversy which has reached the courts on

many occasions. &ee% e" "# American Ci!il

.iberties &nion of @eoria !" 3abun Count4Chamber of Commerce# +nc"# 69( F"2d 109()CA11 19($*? Flore4 !" Siou- Falls School

:ist"# 619 F"2d 1$11 )CA( 19(0*? Allen !" orton# 161 &" S" App" :" C" 2$9# %95 F"2d

65 )19$*? Allen !" HicBel# 1$( &" S" App" :"

C" $1# %2% F"2d 9%% )190*? cCrear4 !"

Stone# 55 F"Supp" 1112 )S:7 19($*?Citiens Concerned for Separation of Church

and State !" :en!er# 50( F"Supp" (2$ )Colo"

19(1*? 3ussell !" amaronecB# %%0 F"Supp"

60 )S:7 19*? .arence !" uchmueller#

%0 isc" 2d $00# 2%$ 7" " S" 2d ( )Sup" Ct"

196$*. 6iven the narrowness of the Court'sdecision today% see supra# at 69%,695% and n.1% the potential for controversy is unlikely toabate.

!n sum% considering the istrict Court's carefulfindings of fact under the three=part analysis called for

by our prior cases% ! have no difficulty concluding thatPawtucket's EFF1@;:G display of the creche isunconstitutional. 11

11 )he Court makes only a halfheartedattempt% see ante% at :>8=:>1% :><=:>@% tograpple with the fact that 0udge Pettine's

detailed findings may not be overturned unlessthey are shown to be 3clearly erroneous.3 Fed"

3ule Ci!" roc" 52)a*. &ee ullman,Standard

!"Sint# %56 &"S" 2$# 2(5,290 )19(2*. !n myview% petitioners have made no such showing

in this case. 0$&)!C4 'C55'sconcurring opinion properly accords greater

respect to the istrict Court's findings% but !am at a loss to understand how the court'sspecific and well=supported finding that thecity was understood to have placed its stampof approval on the sectarian content of thecreche can% in the face of the .emon test% bedismissed as simply an 3error as a matter oflaw.3 Ante% at :A7.

Moreover% although the Court brushes the point aside with little explanation% see ante% at:>;% n. 1@% the .emon decision's three=pronganalysis is not the only available standard ofreview. "s the Court of "ppeals recogni(ed%the 3strict scrutiny3 analysis adopted in

.arson !" ?alente# %56 &"S"# at 2%%,2%6 %addresses situations in which a governmental

policy or practice grants official preference toone religious denomination over another. 691

F"2d 1029# 10$%,10$5 )CA1 19(2*. hile !am inclined to agree with the Court of "ppealsthat Pawtucket's practice fails this test% it is notnecessary that ! address this point in view ofmy conclusion that the city's inclusion of thecreche violates the standards fixed in .emon.

-urthermore% ! continue to believe thatthe test ! set forth in Schempp is anappropriate means of determining whetherrights guaranteed by the Establishment Clause

have been infringed. !n my view% 3thoseinvolvements of religious with secularinstitutions which +a, serve the essentiallyreligious activities of religious institutions? +b,employ the organs of government foressentially religious purposes? or +c, use

essentially religious means to servegovernmental ends% where secular meanswould suffice3 must be struck down. $%&"S"# at 29%,295. !n the present case% !

particularly believe the third element of thistest is not met% since all of Pawtucket'sgovernmental goals == celebrating the holiday

season and promoting commerce == can befully reali(ed without the use of the creche by

employing such wholly secular means as&anta Claus% reindeer% and cutout figures. &ee

supra# at 699,00.

EF;8DG /

)he Court advances two principal arguments tosupport its conclusion that the Pawtucket crechesatisfies the .emon test. 5either is persuasive.

First . )he Court% by focusing on the holiday

3context3 in which the nativity scene appeared% seeksto explain away the clear religious import of the crecheand the findings of the istrict Court that mostobservers understood the creche as both a symbol ofChristian beliefs and a symbol of the city's support forthose beliefs. &ee ante% EFFF:@1G at :;A=:>7? see alsoante% at :A7 +'C55% 0.% concurring,. )hus%although the Court concedes that the city's inclusion ofthe nativity scene plainly serves 3to depict the origins3of Christmas as a 3significant historical religiousevent%3 ante% at :>1% :>8% and that the creche 3isidentified with one religious faith%3 ante% at :>D% we arenevertheless expected to believe that Pawtucket's useof the creche does not signal the city's support for the

sectarian symbolism that the nativity scene evokes.)he effect of the creche% of course% must be gauged not

only by its inherent religious EF;8:G significance butalso by the overall setting in which it appears. /ut it

blinks reality to claim% as the Court does% that by

including such a distinctively religious ob*ect as thecreche in its Christmas display% Pawtucket has done nomore than make use of a 3traditional3 symbol of theholiday% and has thereby purged the creche of itsreligious content and conferred only an 3incidental andindirect3 benefit on religion.

)he Court's struggle to ignore the clear religiouseffect of the creche seems to me misguided for severalreasons. !n the first place% the city has positioned thecreche in a central and highly visible location withinthe Bodgson Park display. )he istrict Court'sfindings in this regard are unambiguous9



Page 1<

3EespiteG the small amount of ground covered bythe creche% viewers would not regard the creche as aninsignificant part of the display. !t is an almost life

si(ed tableau marked off by a white picket fence.-urthermore% its location lends the creche significance.

)he creche faces the oosevelt "venue bus stopsEFF1@;;G and access stairs where the bulk of the

display is placed. Moreover% the creche is near two ofthe most enticing parts of the display for children ==&anta's house and the talking wishing well. "lthoughthe Court recogni(es that one cannot see the crechefrom all possible vantage points% it is clear from theCity's own photos that people standing at the two busshelters and looking down at the display will see thecreche centrally and prominently positioned.3 525

F"Supp"# at 116,11 +citations omitted? footnoteomitted,.

Moreover% the city has done nothing to disclaimgovernment approval of the religious significance ofthe creche% to suggest that the creche represents onlyone religious symbol among many others that might beincluded in a seasonal display truly aimed at providinga wide catalog of ethnic and religious celebrations% or

to disassociate itself from the religious content of thecreche. !n Abinton School :ist . v. Schempp# $%

&"S"# at 225% we noted that reading aloud EF;8;G fromthe /ible would be a permissible schoolroom exerciseonly if it was 3presented ob*ectively as part of asecular program of education3 that would remove anymessage of governmental endorsement of religion.&imilarly% when the Court of "ppeals for the istrictof Columbia Circuit approved the inclusion of a crecheas part of a national 3Pageant of Peace3 on federal

parkland ad*acent to the hite Bouse% it did so on theexpress condition that the 6overnment would erect3explanatory pla2ues3 disclaiming any sponsorshipEFFF:@<G of religious beliefs associated with the

creche. Allen !" orton# 161 &" S" App" :" C" 2$9#

2%1,2%2# %95 F"2d 65# 6,6( )19$* )per curiam*. !n

this case% by contrast% Pawtucket has made no effortwhatever to provide a similar cautionary message.

)hird% we have consistently acknowledged that anotherwise secular setting alone does not suffice to

*ustify a governmental practice that has the effect ofaiding religion. !n Hunt !" c7air# %1$ &"S" $%# %$

)19$*% for instance% we observed that 3EaidG normallymay be thought to have a primary effect of advancingreligion . . . when it EsupportsG a specifically religious

activity in an otherwise substantially secular setting.3)he demonstrably secular context of public education%

therefore% did not save the challenged practice ofschool prayer in Enel or in Schempp. &imilarly% in

>ilton !" 3ichardson# %0$ &"S" 62# 6($ )191*%despite the generally secular thrust of the financinglegislation under review% the Court unanimously struckdown that aspect of the program which permittedchurch=related institutions eventually to assume totalcontrol over the use of buildings constructed withfederal aid. 1<

1< !ndeed% in the aid=to=sectarian=schoolscases% the state financing schemes underreview almost always re2uire us to focus on aspecific element that may violate the

Establishment Clause% even though it is a part

of a complex and otherwise secular statutoryframework. &ee% e" "# eeB !" ittener# %21&"S" $%9 )195*? =olman !" =alter# %$$ &"S"

229 )19*. &ee also Committee for ublic Education 3eliious .ibert4 !" 3ean# %%%

&"S" 6%6# 662 )19(0* +/#"CJM$5% 0.%dissenting,.

EF;8>G -inally% and most importantly% even inthe context of Pawtucket's seasonal celebration% thecreche retains a specifically Christian religiousmeaning. ! refuse to accept the notion implicit intoday's decision that non=Christians would find that thereligious content of the creche is eliminated by the fact

that it appears as part of the city's otherwise secularcelebration of the Christmas holiday. )he nativityscene is clearly distinct in its purpose and effect fromthe rest of the Bodgson Park display for the simple

reason that it is the only one rooted in a biblicalaccount of Christ's birth. !t is the chief symbol of the

characteristically Christian belief that a divine &aviorwas brought into the world and that the purpose of thismiraculous birth was to illuminate a path towardsalvation and redemption. 1@ EFF1@;>G -or Christians%that path is exclusive% precious% and holy. /ut forthose who do not share these beliefs% the symbolicreenactment of the birth of a divine being who has

been miraculously incarnated as a man stands as adramatic reminder of their differences with Christianfaith. 17 hen EFFF:@@G government appears to

sponsor such religiously EF;8AG inspired views% wecannot say that the practice is 3'so separate and so

indisputably marked off from the religious function%' . .. that EitG may fairly be viewed as EreflectingG a neutral

posture toward religious institutions.3 748uist# %1$&"S"# at (2 +2uoting E!erson# $$0 &"S"# at 1( ,. )o beso excluded on religious grounds by one's electedgovernment is an insult and an in*ury that% until today%could not be countenanced by the Establishment

Clause.

1@ &ee . /rown% )he /irth of the Messiah+1A;;,? . "uld% Christmas )raditions +1A@1,?". Mc"rthur% )he 4volution of the ChristianKear +1AD@,.17 -or Christians% of course% the essential

message of the nativity is that 6od became

incarnate in the person of Christ. /ut *ust asfundamental to 0ewish thought is the belief inthe 3non=incarnation of 6od% . . . EtheG 6od inwhom E0ewsG believe% to whom E0ewsG are

pledged% does not unite with human substanceon earth.3 M. /uber% !srael and the orld+1A7>, +reprinted in -. )almage% isputationand ialogue9 eadings in the 0ewish=Christian 4ncounter <>1=<>< +1A;D,,+emphasis deleted,. )his distinction%according to /uber% 3EconstitutesG the ultimatedivision between 0udaism and Christianity.3

+d"# at 2(1. &ee also . euther% -aith and-ratricide <7: +1A;7,.

&imilarly% those who follow the tenets of$nitarianism might well find Pawtucket'ssupport for the symbolism of the creche%

which highlights the )rinitarian tradition inChristian faith% to be an affront to their belief

in a single divine being. &ee 0. illiams%hat "mericans /elieve and Bow )heyorship @1:=@1; +@d ed. 1A:A,. &ee also C.lmstead% Bistory of eligion in the $nited&tates <A:=<AA +1A:8,.



Page 1@

Second . )he Court also attempts to *ustify thecreche by entertaining a beguilingly simple% yet faultysyllogism. )he Court begins by noting that

government may recogni(e Christmas ay as a publicholiday? the Court then asserts that the creche is

nothing more than a traditional element of Christmascelebrations? and it concludes that the inclusion of a

creche as part of a government's annual Christmascelebration is constitutionally permissible. &ee ante% at:>8=:>@% :>D=:>:? see also ante% at :A<=:A7+'C55% 0.% concurring,. )he Court apparently

believes that once it finds that the designation ofChristmas as a public holiday is constitutionallyacceptable% it is then free to conclude that virtuallyevery form of governmental association with thecelebration of the holiday is also constitutional. )hevice of this dangerously superficial argument is that itoverlooks the fact that the Christmas holiday in ournational culture contains both secular and sectarian

elements. 1D )o say that government may recogni(e the

holiday's traditional% secular elements of EF;18G gift=giving% public festivities% and community spirit% doesnot mean that government may indiscriminatelyembrace the distinctively sectarian aspects of theholiday. !ndeed% in its eagerness to approve the creche%the Court has advanced a rationale so simplistic that itwould appear to allow the Mayor of Pawtucket to

participate in the celebration of a Christmas Mass%since this would be *ust another unob*ectionable wayfor the city to 3celebrate the holiday.3 "s isdemonstrated below% the Court's logic is fundamentallyflawed both because it obscures the reason why publicdesignation of Christmas ay as a holiday isconstitutionally acceptable% and blurs the distinction

between the secular aspects of Christmas and itsdistinctively religious character% as exemplified by thecreche.

1D /oth the istrict Court and the Court of"ppeals recogni(ed that Christmas comprises

both secular and sectarian elements and thatthis distinction is of constitutional importance.&ee 525 F"Supp"# at 116$,116%? 691 F"2d# at

10$2,10$$? id"# at 10$5,10$ +/ownes% 0.%concurring,. !n addition% many observers haveexplained that historically the Christmas

celebration derives both from traditional% folkelements such as gift=giving and winterseasonal celebrations% as well as from

Christian religious elements. &ee% e" .% 0./arnett% )he "merican Christmas% " &tudy in

5ational Culture A=17 +1AD7, +hereafter/arnett,? . Meyers% Celebrations9 )he

Complete /ook of "merican Bolidays @8A=@77 +1A;<,? /. osenthal H 5. osenthal%Christmas 17=1D +1A>8,.

hen government decides to recogni(eEFFF:@7G Christmas ay as a public holiday% it doesno more than accommodate the calendar of EFF1@;AG

public activities to the plain fact that many "mericanswill expect on that day to spend time visiting with theirfamilies% attending religious services% and perhapsen*oying some respite from preholiday activities. )he

Free E-ercise Clause% of course% does not necessarilycompel the government to provide thisaccommodation% but neither is the Establishment

Clause offended by such a step. Cf. orach !"

Clauson# $%$ &"S" $06 )1952*. /ecause it is clear thatthe celebration of Christmas has both secular and

sectarian elements% it may well be that by taking noteof the holiday% the government is simply seeking toserve the same kinds of wholly secular goals == forinstance% promoting goodwill and a common day ofrest == that were found to *ustify &unday Closing #awsin c@oan !" ar4land# $66 &"S" %20 )1961* . 1: !f

public officials go further and participate in the secular celebration EF;11G of Christmas == by% forexample% decorating public places with such secularimages as wreaths% garlands% or &anta Claus figures ==

they move closer to the limits of their constitutional power but nevertheless remain within the boundariesset by the Establishment Clause. /ut when thoseofficials participate in or appear to endorse the

distinctively religious elements of this otherwisesecular event% they encroach upon First Amendment

freedoms. -or it is at that point that the government brings to the forefront the theological content of theholiday% and places the prestige% power% and financialsupport of a civil authority in the service of a particularfaith.

1: !t is worth noting that Christmas sharesthe list of federal holidays with such patentlysecular% patriotic holidays as the -ourth of

0uly% Memorial ay% ashington's /irthday%#abor ay% and Ieterans ay. &ee 5 &" S" C"

; 610$)a*. e may reasonably infer from thedistinctly secular character of the company

that Christmas keeps on this list that it too isincluded for essentially secular reasons.

)he inclusion of a creche in Pawtucket'sotherwise secular celebration of Christmas clearlyviolates these principles. $nlike such secular figuresas &anta Claus% reindeer% and carolers% a nativity scenerepresents far more than a mere 3traditional3 symbol ofChristmas. )he essence of the creche's symbolic

purpose and effect is to prompt the observer toexperience a sense of simple awe and wonderappropriate to the contemplation of one of the centralelements of Christian dogma == that 6od sent Bis &oninto the world to be a Messiah. 1; Contrary to the

Court's suggestion% the creche is far from a mererepresentation of a 3particular historic religious event.3

Ante% at :>:. !t is% instead% best understood as a

mystical re=creation of an event that lies at the heart ofChristian faith. 1> )o EFFF:@DG suggest% as the Courtdoes% EF;1<G that such a symbol is merely3traditional3 and therefore no different from &anta'shouse or reindeer is not only offensive to those forwhom the creche has profound significance% 1A butinsulting to those who insist for religious or personalreasons that the story of Christ is in no sense a part of3history3 nor an unavoidable element of our national3heritage.3 <8

1; &ee . "uld% Christmas )raditions+1A@1,? ". Mc"rthur% )he 4volution of theChristian Kear +1AD@,.

1> "s one commentator has observed93)oday of course it is admitted even by

Catholic exegetes that Ethe /iblical storiesrecounting Christ's birthG are a collection oflargely uncertain% mutually contradictory%strongly legendary and ultimatelytheologically motivated narratives% with acharacter of their own. $nlike the rest of0esus' life% there are dream happenings here



Page 17

and angels constantly enter on the scene andleave it == as heavenly messengers of 6odannouncing important events.3 B. Jung% n

/eing " Christian 7D1 +4. Luinn trans.% 1A;:,+footnote omitted,. &ee also . /rown% )he

/irth of the Messiah <D=71 +1A;;,? 4lliott% )he/irth and /ackground of 0esus of 5a(areth% <>

Bistory )oday ;;@% ;;7=;>8 +1A;>,.1A Many Christian commentators havevoiced strong ob*ections to what they considerto be the debasement and triviali(ation ofChristmas through too close a connection withcommercial and public celebrations. &ee% e" .%Jelley% /eyond &eparation of Church and&tate% D 0. Church H &tate 1>1 +1A:@,. &eegenerally /arnett DD=D;.<8 &ee ". &tokes H #. Pfeffer% Church and&tate in the $nited &tates @>@ +rev. ed. 1A:7,?. Morgan% )he &upreme Court and eligion

1<: +1A;<,? /arnett :> +discussing opposition

by 0ews and other non=Christian religiousgroups to public celebrations of Christmas,.&ee also )almage% supra n. 17.

EFF1@>8G -or these reasons% the creche in thiscontext simply cannot be viewed as playing the samerole that an ordinary museum display does. &ee ante%at :;:=:;;% :>@% :>D. )he Court seems to assume that

prohibiting Pawtucket from displaying a creche would be tantamount to prohibiting a state college fromincluding the /ible or Milton's Paradise #ost in acourse on 4nglish literature. /ut in those cases thereligiously inspired materials are being consideredsolely as literature. )he purpose is plainly not to

single out the particular religious beliefs that may haveinspired the authors% but to see in these writings theoutlines of a larger imaginative universe shared withother forms of literary expression. <1 )he same may be

said of a course devoted to the study of art? when thecourse turns to 6othic architecture% the emphasis is not

on the religious beliefs which the cathedrals exalt% butrather upon the 3aesthetic conse2uences of EsuchreligiousG thought.3 <<

<1 &ee 5. -rye% )he &ecular &cripture 17=1D+1A;:,.

<< . von &imson% )he 6othic Cathedral <;+1AD:,. &ee also 4. Panofsky% Meaning in theIisual "rts +1A;7,. Compare 0ustice

0ackson's explanation of his view that thestudy of religiously inspired material can% in

the correct setting% be made a part of a seculareducational program9 3EmusicG without sacred

music% architecture minus the cathedral% or painting without the scriptural themes would be eccentric and incomplete% even from asecular point of view.3 +llinois e- rel"

cCollum !" oard of Education# $$$ &"S"

20$# 2$6 )19%(* +concurring opinion,.

EF;1@G !n this case% by contrast% the creche playsno comparable secular role. $nlike the poetry ofParadise #ost which students in a literature course willseek to appreciate primarily for esthetic or historicalreasons% the angels% shepherds% Magi% and infant ofPawtucket's nativity scene can only be viewed assymbols of a particular set of religious beliefs. !t

would be another matter if the creche were displayedin a museum setting% in the company of otherreligiously inspired artifacts% as an example% among

many% of the symbolic representation of religiousmyths. !n that setting% we would have ob*ectiveguarantees that the creche could not suggest that a

particular faith had been singled out for public favorand recognition. )he effect of Pawtucket's creche%however% is not confined by any of these limitingattributes. !n the absence of any other religioussymbols or of any neutral disclaimer% the inescapableEFFF:@:G effect of the creche will be to remind theaverage observer of the religious roots of the

celebration he is witnessing and to call to mind thescriptural message that the nativity symboli(es. )hefact that Pawtucket has gone to the trouble of makingsuch an elaborate public celebration and of including a

creche in that otherwise secular setting inevitablyserves to reinforce the sense that the city means to

express solidarity with the Christian message of thecreche and to dismiss other faiths as unworthy ofsimilar attention and support.

!!

"lthough the Court's relaxed application of the .emon test to Pawtucket's creche is regrettable% it is atleast understandable and properly limited to the

particular facts of this case. )he Court's opinion%however% also sounds a broader EF;17G and more

troubling theme. !nvoking the celebration of)hanksgiving as a public holiday% the legend 3!n 6od

e )rust3 on our coins% and the proclamation 36odsave the $nited &tates and this Bonorable Court3 at theopening of *udicial sessions% the Court asserts% withoutexplanation% that Pawtucket's inclusion of a creche inits annual Christmas display poses no more of a threatto Establishment Clause values than these otherofficial 3acknowledgments3 of religion. Ante% at :;7=:;>% :>D=:>:? see also ante% at :A<=:A@ +'C55%0.% concurring,.

!ntuition tel ls us that some official3acknowledgment3 is inevitable in a religious societyif government is not to adopt a stilted indifference tothe religious life of the people. &ee +llinois e- rel"

cCollum !" oard of Education# $$$ &"S" 20$# 2$2)19%(* +0ackson% 0.% concurring,. !t is e2ually true%however% that if government is to remain EFF1@>1G

scrupulously neutral in matters of religious conscience%as our Constitution re2uires% then it must avoid thoseoverly broad acknowledgments of religious practicesthat may imply governmental favoritism toward oneset of religious beliefs. )his does not mean% of course%that public officials may not take account% whennecessary% of the separate existence and significance ofthe religious institutions and practices in the societythey govern. &hould government choose toincorporate some arguably religious element into its

public ceremonies% that acknowledgment must beimpartial? it must not tend to promote one faith orhandicap another? and it should not sponsor religiongenerally over nonreligion. )hus% in a series of

decisions concerned with such acknowledgments% wehave repeatedly held that any active form of public

acknowledgment of religion indicating sponsorship orendorsement is forbidden. E" "# Stone !" @raham# %%9

&"S" $9 )19(0* +posting of )en Commandments inschoolroom,? Epperson !" ArBansas# $9$ &"S" 9

)196(* +prohibition on teaching principles ofarwinian evolution,? Abinton School :ist . v.Schempp# $% &"S" 20$ )196$* +mandatory /ible=



Page 1D

reading at beginning of EF;1DG school day,? Enel !"

?itale# $0 &"S" %21 )1962* +mandatory reading ofstate=composed prayer,? +llinois e- rel" cCollum !"

oard of Education# supra EFFF:@;G +use of public=school facilities for religious instruction,.

espite this body of case law% the Court has never

comprehensively addressed the extent to whichgovernment may acknowledge religion by% forexample% incorporating religious references into publicceremonies and proclamations% and ! do not presume tooffer a comprehensive approach. 5evertheless% itappears from our prior decisions that at least three

principles == tracing the narrow channels whichgovernment acknowledgments must follow to satisfythe Establishment Clause == may be identified. -irst%although the government may not be compelled to doso by the Free E-ercise Clause% it may% consistentlywith the Establishment Clause% act to accommodate tosome extent the opportunities of individuals to practicetheir religion. &ee Schempp# supra# at 296,299

+/455"5% 0.% concurring,. )hat is the essentialmeaning% ! submit% of this Court's decision in orach

!" Clauson# $%$ &"S" $06 )1952*% finding that

government does not violate the Establishment Clausewhen it simply chooses to 3close its doors or suspendits operations as to those who want to repair to theirreligious sanctuary for worship or instruction.3 +d"# at

$1%. "nd for me that principle would *ustifygovernment's decision to declare ecember <Dth a

public holiday. &ee supra# at 10.

&econd% our cases recogni(e that while a particular governmental practice may have derivedfrom religious motivations and retain certain religiousconnotations% it is nonetheless permissible for thegovernment to pursue the practice when it is continuedtoday solely for secular reasons. "s this Court notedwith reference to &unday Closing #aws in c@oan

!" ar4land# $66 &"S" %20 )1961*% the mere fact that agovernmental practice coincides to some extent withcertain religious beliefs does not render itunconstitutional. )hanksgiving ay% in my view% fits

easily within this principle% EF;1:G for despite itsreligious antecedents% <@ the current EFF1@><G practiceof celebrating )hanksgiving is un2uestionably secularand patriotic. e all may gather with our families on

that day to give thanks both for personal and nationalgood fortune% but we are free% given the secularcharacter of the holiday% to address that gratitude either

to a divine beneficence or to such mundane sources asgood luck or the country's abundant natural wealth. <@

<@ )he constitutional problems posed by the

relig ious antecedents of the early)hanksgiving celebrations were wellrecogni(ed by )homas 0efferson. efusing on

Establishment Clause grounds to declarenational days of thanksgiving or fasting%0efferson explained9

3! consider the government of the $nited&tates as interdicted by the Constitution fromintermeddling with religious institutions% theirdoctrines% disciplines% or exercises. . . . E!tG isonly proposed that ! should recommend% not

prescribe a day of fasting and prayer . . . E/utG! do not believe it is for the interest of religion

to invite the civil magistrate to direct itsexercises% its discipline% or its doctrines . . . .-asting and prayer are religious exercises? the

en*oining them an act of discipline.3 110efferson's ritings 7<>=7@8 +1A87, +emphasisdeleted,.

&ee generally #. Pfeffer% Church% &tateand -reedom <:: +1A:;,.

-inally% we have noted that government cannot

be completely prohibited from recogni(ing in its publicactions the religious beliefs and EFFF:@>G practices ofthe "merican people as an aspect of our national

history and culture. &ee Enel !" ?itale# supra# at %$5#n" 21? Schempp# supra# at $00,$0% +/455"5% 0.%concurring,. hile ! remain uncertain about these2uestions% ! would suggest that such practices as thedesignation of 3!n 6od e )rust3 as our nationalmotto% or the references to 6od contained in the Pledgeof "llegiance to the flag can best be understood% inean ostow's apt phrase% as a form a 3ceremonialdeism%3 <7 protected from Establishment Clause

scrutiny chiefly because they have lost through roterepetition any significant religious content. &ee arsh

!" Chambers# %6$ &"S"# at (1( +/455"5% 0.%

dissenting,. EF;1;G Moreover% these references areuni2uely suited to serve such wholly secular purposesas solemni(ing public occasions% or inspiring

commitment to meet some national challenge in amanner that simply could not be fully served in our

culture if government were limited to purelynonreligious phrases. Cf. Schempp# supra# at 265

+/455"5% 0.% concurring,. )he practices by whichthe government has long acknowledged religion aretherefore probably necessary to serve certain secularfunctions% and that necessity% coupled with their longhistory% gives those practices an essentially secularmeaning.

<7 &utherland% /ook eview% 78 !nd. #. 0.>@% >: +1A:7, +2uoting ean ostow's 1A:<Meikle*ohn #ecture delivered at /rown$niversity,.

)he creche fits none of these categories.!nclusion of the creche is not necessary to

accommodate individual religious expression. )his is plainly not a case in which individual residents ofPawtucket have claimed the right to place a creche as

part of a wholly private display on public land. Cf.=idmar !" ?incent# %5% &"S" 26$ )19(1* ? cCrear4 !"

Stone# 55 F"Supp" 1112 )S:7 19($*. 5or is theinclusion of the creche necessary to serve whollysecular goals? it is clear that the city's secular purposesof celebrating the Christmas holiday and promotingretail commerce can be fully served without thecreche. Cf. c@oan v. ar4land % and supra# at 699,

00. "nd the creche% because of its uni2ue associationwith Christianity% is clearly more sectarian than those

references to 6od that we accept in ceremonial phrasesor in other contexts that assure neutrality. )hereligious works on display at the 5ational 6allery%Presidential references to 6od during an !naugural

"ddress% or the national motto present no risk ofestablishing religion. )o be sure% our understanding of

these expressions may begin in contemplation of somereligious element% but it does not end there. )heirmessage is dominantly secular. !n contrast% themessage of the creche begins and ends with reverencefor a particular image of the divine.



Page 1:

/y insisting that such a distinctively sectarianmessage is merely an unob*ectionable part of our3religious heritage%3 see ante% at :;:% :>D=:>:% the

Court takes a long step backwards EF;1>G to the dayswhen 0ustice /rewer could arrogantly declare for the

Court that 3this is a Christian nation.3 Church of Hol4>rinit4 !" &nited States# 1%$ &"S" %5# %1 EFFF:@AG

)1(92*. )hose days% ! had thought% were forever put behind us by the Court's decision in Enel v. ?itale% inwhich we re*ected a similar argument advanced by the&tate of 5ew Kork that its egent's Prayer was simplyan acceptable EFF1@>@G part of our 3spiritualheritage.3 $0 &"S"# at %25.

!!!

)he "merican historical experience concerningthe public celebration of Christmas% if carefullyexamined% provides no support for the Court'sdecision. )he opening sections of the Court's opinion%while seeking to rely on historical evidence% do no

more than recogni(e the obvious9 because of the strongreligious currents that run through our history% aninflexible or absolutistic enforcement of the

Establishment Clause would be both imprudent andimpossible. &ee ante% at :;@=:;>. )his observation isat once uncontroversial and unilluminating. &imply

enumerating the various ways in which the -ederal6overnment has recogni(ed the vital role religion

plays in our society does nothing to help decide the2uestion presented in this case.

!ndeed% the Court's approach suggests afundamental misapprehension of the proper uses ofhistory in constitutional interpretation. Certainly% our

decisions reflect the fact that an awareness of historical practice often can provide a useful guide ininterpreting the abstract language of the Establishment

Clause. &ee% e" "# =al !" >a- Comm'n# $9 &"S"# at

66,6(0? c@oan !" ar4land# $66 &"S"# at %$1,

%%5? Enel# $0 &"S"# at %25,%29. /ut historicalacceptance of a particular practice alone is neversufficient to *ustify a challenged governmental action%since% as the Court has rightly observed% 3no oneac2uires a vested or protected right in violation of theConstitution by long use% even when that span of time

covers our entire national existence and indeed

predates it.3 =al# supra# at 6(. &ee also Committee

for EF;1AG ublic Education 3eliious .ibert4 !"

748uist# %1$ &"S"# at 92. "ttention to the details of

history should not blind us to the cardinal purposes ofthe Establishment Clause% nor limit our central in2uiry

in these cases == whether the challenged practices3threaten those conse2uences which the -ramers

deeply feared.3 Abinton School :ist . v. Schempp# $%&"S"# at 2$6 +/455"5% 0.% concurring,. !nrecognition of this fact% the Court has% until today%consistently limited its historical in2uiry to the

particular practice under review.

!n c@oan% for instance% the Court carefullycanvassed the entire history of &unday Closing #awsfrom the colonial period up to modern times. n the

basis of this analysis% we concluded that while suchlaws were rooted in religious motivations% the current

purpose was to serve the wholly secular goal of providing a uniform day of rest for all citi(ens. $66

&"S"# at %%5. ur in2uiry in =al was similarly

confined EFFF:78G to the special history of the practice under review. )here the Court found a patternof 3undeviating acceptance3 over the entire course of

the 5ation's history of according property=taxexemptions to religious organi(ations% a pattern whichsupported our finding that the practice did not violatethe eligion Clauses. -inally% where direct in2uiryinto the -ramers' intent reveals that the First

Amendment was not understood to prohibit a particular practice% we have found such an understandingcompelling. )hus% in arsh v. Chambers% aftermarshaling the historical evidence which indicated thatthe -irst Congress had authori(ed the appointment of

paid chaplains for its own proceedings only three days before it reached agreement on the final wording of the ill of 3ihts % the Court concluded on the basis of this3uni2ue history3 that the modern=day practice of

opening legislative sessions with prayer wasconstitutional. %6$ &"S"# at (,91.

"lthough invoking these decisions in support ofits result% the Court wholly fails to discuss the history

of the public celebration of Christmas or the use of publicly displayed nativity scenes. )he Court% instead%simply asserts% without any historical analysis orsupport whatsoever% that the now familiar EF;<8G

celebration of Christmas springs from an unbrokenhistory of acknowledgment 3by the people% by the4xecutive EFF1@>7G /ranch% by the Congress% and the

courts for < centuries . . . .3 Ante% at :>:. )he Court'scomplete failure to offer any explanation of its

assertion is perhaps understandable% however% becausethe historical record points in precisely the opposite

direction. )wo features of this history are worthnoting. -irst% at the time of the adoption of theConstitution and the ill of 3ihts% there was no settled

pattern of celebrating Christmas% either as a purelyreligious holiday or as a public event. &econd% thehistorical evidence% such as it is% offers no uniform

pattern of widespread acceptance of the holiday andindeed suggests that the development of Christmas as a

public holiday is a comparatively recent phenomenon.<D

<D )he Court's insistence upon pursuing this

vague historical analysis is especially baffling

since even the petitioners and their supportingamici concede that no historical evidencee2uivalent to that relied upon in arsh#

c@oan% or =al supports publiclysponsored Christmas displays. "t oralargument% counsel for petitioners was askedwhether there is 3anything we can refer to tolet us know how long it has been the practicein this country for public bodies to havenativity scenes displayed3 Counselresponded9 3&pecifically% ! cannot . . . . )herecognition of Christmas Eas a public holidayG

began in the middle part of the last century . . . but specifically with respect to the use of the

nativity scene% we have been unable to locatethat data.3 )r. of ral "rg. >.

!n addition% the &olicitor 6eneral%

appearing as amicus in support of petitioners%was asked9 3o we have . . . evidence Eof the

intent of the -ramersG here with respect to thedisplay of a nativity scene3 Be responded935ot with that degree of specificity.3 +d"# at22,2$.

)he intent of the -ramers with respect to the public display of nativity scenes is virtually impossible



Page 1;

to discern primarily because the widespreadcelebration of Christmas did not emerge in its presentform until well into the 1Ath century. Carrying a well=

defined Puritan hostility to the celebration of Christ's birth with them to the 5ew orld% the founders of the

Massachusetts EFFF:71G /ay Colony pursued avigilant policy of opposition to any public celebration

of the holiday. EF;<1G )o the Puritans% the celebrationof Christmas represented a 3Popish3 practice lackingany foundation in &cripture. )his opposition tooklegal form in 1:DA when the Massachusetts /ayColony made the observance of Christmas ay% 3byabstinence from labor% feasting% or any other way%3 anoffense punishable by fine. "lthough the Colonyeventually repealed this ban in 1:>1% the Puritanob*ection remained firm. <:

<: &ee &. Cobb% )he ise of eligious#iberty in "merica <8A +rev. ed. 1A;8,. -or

an example of this notorious Puritan antipathy

to the holiday% consider the remarks of 0udge&ewell% a Puritan% who in 1:>D expressed hisconcerns about the influence of publiccelebration of Christmas9 3&ome% somehowobserve the day% but are vexed% ! believe% thatthe /ody of the People Profane it? and% blessed

be 6od% no "uthority yet to compel them tokeep it.3 Luoted in /arnett @.

uring the 1>th century% sectarian division overthe celebration of the holiday continued. "s increasingnumbers of members of the "nglican and the utchand 6erman eformed Churches arrived% the practiceof celebrating Christmas as a purely religious holiday

grew. /ut denominational differences continued todictate differences in attitude toward the holiday."merican "nglicans% who carried with them theChurch of 4ngland's acceptance of the holiday% oman

Catholics% and various 6erman groups all made thecelebration of Christmas a vital part of their religious

life. /y contrast% many nonconforming Protestantgroups% including the Presbyterians%Congregationalists% /aptists% and Methodists%continued to regard the holiday with suspicion andantagonism well into the 1Ath century. <; )his patternof EFF1@>DG sectarian EF;<<G division concerning theholiday suggests that for the -ramers of the

Establishment Clause% who were acutely sensitive tosuch sectarian controversies% no single view of howgovernment should approach the celebration of

Christmas would be possible.

<; &ee generally /arnett 7=:% <1=<<? &weet%Christmas in "merican Bistory% << Chi.

)heol. &em. egister 1<% 17 +5ov. 1A@<,? .Meyers% Celebrations9 )he Complete /ook of"merican Bolidays @17=@1D +1A;<,. &omeindication of this denominational opposition tothe religious celebration of Christmas can begleaned from the following account ofChristmas services in the 5ew Kork aily)imes for ecember <:% 1>DD9

3)he churches of the Presbyterians%/aptists and Methodists were not open onec. <D except where some Mission &choolshad a celebration. )hey do not accept the dayas a Boly ne% but the 4piscopalian% Catholic

and 6erman Churches were all open. !nsidethey were decked with evergreens.3 Luoted in/arnett >.

!n addition% consider the account writtenin 1>;7 of Benry ard /eecher% a

Congregationalist% describing his 5ew4ngland childhood9

3)o me Christmas is a foreign day% and !shall die so. hen ! was a boy ! wondered

what Christmas was. ! knew there was such atime% because we had an 4piscopal church inour town and ! saw them dressing it with

evergreens . . . . " little later ! understood itwas a omish institution% kept up by theomish Church. /rought up in the stricteststate of 5ew 4ngland% brought up in the mostliteral style of worship . . . ! passed all myyouth without any knowledge of Christmas%and so ! have no associations with the day.3Luoted in Meyers% supra n. 1D% at @1D=@1:.

Many of the same religious sects that weredevotedly opposed to the celebration of Christmas on

purely religious grounds% were also some of the mostvocal and dedicated foes of established religions in the

period *ust prior to the evolutionary EFFF:7<G ar.<> )he Puritans% and later the Presbyterians% /aptists%and Methodists% generally associated the celebration of

Christmas with the elaborate and% in their view%sacreligious celebration of the holiday by the Church

of 4ngland% and also with% for them% the more sinistertheology of 3Popery.3 <A !n the eyes of these dissenting

religious sects% therefore% the groups most closelyassociated with established EF;<@G religion == theChurches of 4ngland and of ome == were also mostclosely linked to the profane practice of publiclycelebrating Christmas. -or those who authored the

ill of 3ihts% it seems reasonable to suppose that the public celebration of Christmas would have beenregarded as at least a sensitive matter% if not deeplycontroversial. "s we have repeatedly observed% theeligion Clauses were intended to ensure a benignregime of competitive disorder among alldenominations% so that each sect was free to vie against

the others for the allegiance of its followers without

state interference. &ee E!erson !" oard of Education#$$0 &"S" 1 )19%*. )he historical record% contrary tothe Court's uninformed assumption% suggests that at thevery least conflicting views toward the celebration ofChristmas were an important element of thatcompetition at the time of the adoption of theConstitution.

<> )he role of these religious groups in thestruggle for disestablishment and their place inthe history of the Establishment Clause havealready been chronicled at some length in ourcases% and therefore ! will not repeat thathistory here. &ee E!erson !" oard of

Education# $$0 &"S" 1# 9,15 )19%*? Enel !"?itale# $0 &"S" %21# %2(# and n" 10 )1962*?Committee for ublic Education 3eliious

.ibert4 !" 748uist# %1$ &"S"# at 0% and n. <>.-or more comprehensive discussions of theefforts of these denominations to bring aboutdisestablishment% see &. Cobb% )he ise ofeligious #iberty in "merica +rev. ed. 1A;8,?/. /ailyn% )he !deological rigins of the"merican evolution <D;=<:@ +1A:;,? .Mc#oughlin% 5ew 4ngland issent9 1:@8=



Page 1>

1>@@ +1A;1,? #. Pfeffer% Church% &tate and-reedom +1A:;,.<A &ee /arnett <=:.

-urthermore% unlike the religious tax exemptionsupheld in =al % the public display of nativity scenes as

part of governmental celebrations of Christmas does

not come to us supported by an unbroken history ofwidespread acceptance. !t was not until 1>@: that a&tate first granted legal recognition to Christmas as a

public holiday. )his was followed in the period between 1>7D and 1>:D% by <> *urisdictions whichincluded Christmas ay as a legal holiday. @8 Congressdid not follow the &tates' lead until 1>;8 when itestablished ecember <Dth% along with the -ourth of0uly% 5ew Kear's ay% and )hanksgiving% as a legalholiday in the istrict of Columbia. @1 EFF1@>:G )his

pattern of legal recognition tells us only that EF;<7G public acceptance of the holiday was gradual and thatthe practice == in stark contrast to the record presentedin either =al or arsh == did not take on the character

EFFF:7@G of a widely recogni(ed holiday until themiddle of the 1Ath century.

@8 -or a compilation of these developments%see id"# at 19,20.@1 Ch. 1:;% 1: &tat. 1:>. )here is nosuggestion in the brief congressionaldiscussion concerning the decision to declareChristmas ay a public holiday in the istrictof Columbia% that Congress meant to doanything more than to put the istrict on e2ualfooting with the many &tates that had declaredthose days public holidays by that time. &ee

Cong. 6lobe% 71st Cong.% <d &ess.% 7>8D+1>;8,.

&ignificantly% it was not until 1>>D thatCongress provided holiday payment forfederal employees on ecember <D. &ee 0.es. D% <@ &tat. D1:.

)he historical evidence with respect to publicfinancing and support for governmental displays ofnativity scenes is even more difficult to gauge. hatis known suggests that 6erman immigrants who settled

in Pennsylvania early in the 1>th century% presumably

drawing upon 4uropean traditions% were probably thefirst to introduce nativity scenes to the "mericancelebration of Christmas. @< !t also appears likely that

this practice expanded as more oman Catholicimmigrants settled during the 1Ath century. -rom

these modest beginnings% the familiar creche scenedeveloped and gained wider recognition by the late

1Ath century. @@ !t is simply impossible to tell%however% whether the practice ever gained widespreadacceptance% much less official endorsement% until the<8th century.

@< &ee /arnett 11=1<? e4ers# supra n"15.)he symbol of the creche as an artifact ofChristmas celebration apparently owes itsorigins to &t. -rancis of "ssisi who% accordingto most accounts% first populari(ed the ritualre=enactment of the birth of Christ by erectinga manger attended by townspeople who played

the now=traditional roles of shepherds% Magi%

etc.% in the village of 6reccio% !taly% in 1<<7.&ee . "uld% Christmas )raditions D: +1A@1,?M. Jrythe% "ll "bout Christmas >D +1AD7,.@@ ne commentator has noted that theincreasing seculari(ation of the Christmascelebration which occurred during the 1Athcentury led 3members of the Puritan andevangelical churches Eto beG less inclined tooppose the secular celebration when it nolonger symboli(ed the religious and politicaldominance of the Church of 4ngland. )histolerance increased during the nineteenthcentury and undoubtedly encouraged EtheG

popularity Eof the celebration of ChristmasG.3

/arnett :? see also id"# at 11,12# 22,2$.

!n sum% there is no evidence whatsoever that the-ramers would have expressly approved a federal

celebration of the Christmas holiday including publicdisplays of a nativity EF;<DG scene? accordingly% the

Court's repeated invocation of the decision in arsh%see ante% at :;@=:;7% :><% :>D=:>:% is not only

baffling% it is utterly irrelevant. 5or is there anysuggestion that publicly financed and supporteddisplays of Christmas creches are supported by arecord of widespread% undeviating acceptance thatextends throughout our history. )herefore% our prior

decisions which relied upon concrete% specifichistorical evidence to support a particular practicesimply have no bearing on the 2uestion presented in

this case. Contrary to today's careless decision% those prior cases have all recogni(ed that the 3illumination3

provided by history must always be focused on the particular practice at issue in a given case. ithout

that guiding principle and the intellectual discipline itimposes% the Court is at sea% free to select randomelements of "merica's varied history solely to suit theviews of five Members of this Court.

!I

$nder our constitutional scheme% the role ofsafeguarding our 3religious heritage3 and of promotingreligious beliefs is reserved as the exclusive

prerogative of our 5ation's churches% religiousinstitutions% and spiritual leaders. /ecause the -ramersof the Establishment Clause understood that 3religionis too personal% EFFF:77G too sacred% too holy to

permit its 'unhallowed perversion' by civilEauthoritiesG%3 Enel !" ?itale# $0 &"S"# at %$2% theClause demands that government play no role in thiseffort. )he Court today brushes aside these concerns

by insisting that Pawtucket has done nothing morethan include a 3traditional3 symbol of Christmas in its

celebration of this national holiday% thereby muting thereligious content of the creche. Ante% at :>D. /ut thecity's action should be recogni(ed for what it is9 acoercive% though perhaps small% step towardestablishing the sectarian preferences EFF1@>;G of thema*ority at the expense of the minority% accomplished

by placing public facilities and funds in support of thereligious symbolism and theological tidings that theEF;<:G creche conveys. "s 0ustice -rankfurter%writing in c@oan v. ar4land % observed% the

Establishment Clause 3EwithdrawsG from the sphere oflegitimate legislative concern and competence aspecific% but comprehensive% area of human conduct9man's belief or disbelief in the verity of sometranscendental idea and man's expression in action ofthat belief or disbelief.3 $66 &"S"# at %65,%66 +separate

opinion,. )hat the Constitution sets this realm ofthought and feeling apart from the pressures andantagonisms of government is one of its supreme



Page 1A

achievements. egrettably% the Court today tarnishesthat achievement.

! dissent.

0$&)!C4 /#"CJM$5% with whom 0$&)!C4&)4I45& *oins% dissenting.

"s 0$&)!C4 /455"5 points out% the logic ofthe Court's decision in .emon !" /urtman# %0$ &"S"

602# 612,61$ )191* +which )B4 CB!4- 0$&)!C4would say has been applied by this Court 3often%3 ante%a t :;A% but which 0$&)!C4 'C55acknowledges with the words% 3ur prior cases have

used the three=part test articulated in .emon#< ante% at:>>,% compels an affirmance here. !f that case and its

guidelines mean anything% the presence of Pawtucket'screche in a municipally sponsored display must beheld to be a violation of the First Amendment .

5ot only does the Court's resolution of thiscontroversy make light of our precedents% but also%

ironically% the ma*ority does an in*ustice to the crecheand the message it manifests. hile certain persons%including the Mayor of Pawtucket% undertook acrusade to 3keep 'Christ' in Christmas%3 "pp. 1:1% theCourt today has declared that presence virtuallyirrelevant. )he ma*ority urges that the display% 3withor without a creche%3 3ErecallsG the religious nature of

the Boliday%3 and 3engenders a friendly communityspirit of goodwill in keeping with the season.3 Ante% at:>D. /efore the istrict Court% an expert witness for

the city made EF;<;G a similar% though perhaps morecandid% point% stating that Pawtucket's display invites

people 3to participate in the Christmas spirit% brotherhood% peace% and let loose with their money.3

&ee 525 F"Supp" 1150# 1161 )3+ 19(1*. )he creche has been relegated to the role of a neutral harbinger of theholiday season% useful for commercial purposes% butdevoid of any inherent meaning and incapable ofEFFF:7DG enhancing the religious tenor of a display ofwhich it is an integral part. )he city has its victory ==

but it is a Pyrrhic one indeed.

)he import of the Court's decision is to encourageuse of the creche in a municipally sponsored display% asetting where Christians feel constrained inacknowledging its symbolic meaning and non=Christians feel alienated by its presence. &urely% this isa misuse of a sacred symbol. /ecause ! cannot *oin the

Court in denying either the force of our precedents orthe sacred message that is at the core of the creche% !dissent and *oin 0$&)!C4 /455"5's opinion.

REFERENCES

16A Am ur 2d# Constitutional .a %95

$&C&% Constitution# Amend 1

$& # 4d igest% Constitutional #aw A:1% A;7

# 4d !ndex to "nnos% eligion

"# Luick !ndex% eligion and eligious Matters

-ederal Luick !ndex% 4stablishment of eligion

"nnotation eferences9

&upreme Court cases involving establishment andfreedom of religion clauses of Federal Constitution"

$ . Ed 2d 11% .

hat provisions of the Federal Constitution's ill of 3ihts are applicable to the states. 1( . Ed 2d 1$((#2$ . Ed 2d 9(5.

4rection% maintenance% or display of religiousstructures or symbols on public property as violationof religious freedom. $6 A.3$d 1256 .



159PR1

********** Print Completed

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Time of Request: Friday, August 3,

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