An interesting case for this time of year. Merry Christmas!
United States Supreme Court
LYNCH v. DONNELLY, (1984)
Argued: October 4, 1983 Decided: March 5, 1984
Notwithstanding the religious significance of the creche, Pawtucket has not violated the Establishment Clause. Pp. 672-687.
- (a) The concept of a “wall” of separation between church and state is a useful metaphor but is not an accurate description of the practical aspects of the relationship that in fact exists. The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. Anything less would require the “callous indifference,” Zorach v. Clauson,
- , that was never intended by the Establishment Clause. Pp. 672-673.
- (b) This Court’s interpretation of the Establishment Clause comports with the contemporaneous understanding of the Framers’ intent. That neither the draftsmen of the Constitution, who were Members of the First Congress, nor the First Congress itself, saw any establishment problem in employing Chaplains to offer daily prayers in the Congress is a striking example of the accommodation of religious beliefs intended by the Framers. Pp. 673-674.
- (c) Our history is pervaded by official acknowledgment of the role of religion in American life, and equally pervasive is evidence of accommodation of all faiths and all forms of religious expression and hostility toward none. Pp. 674-678.
- (d) Rather than taking an absolutist approach in applying the Establishment Clause and mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith, this Court has scrutinized challenged conduct or legislation to determine whether, in reality, it establishes a religion or religious faith or tends to do so. In the line-drawing process called for in each case, it has often been found useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion. But this Court has been unwilling to be confined to any single test or criterion in this sensitive area. Pp. 678-679.
- (e) Here, the focus of the inquiry must be on the creche in the context of the Christmas season. Focus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause. Pp. 679-680.
- (f) Based on the record in this case, the city has a secular purpose for including the creche in its Christmas display and has not impermissibly advanced religion or created an excessive entanglement between religion and government. The display is sponsored by the city to celebrate the Holiday recognized by Congress and national tradition and to depict the origins of that Holiday; these are legitimate secular purposes. Whatever benefit to one faith or religion or to all religions inclusion of the creche in the display effects, is indirect, remote, and incidental, and is no more an advancement or endorsement of religion than the congressional and executive recognition of the origins of Christmas, or the exhibition of religious paintings in governmentally supported museums. This Court is unable to discern a greater aid to religion from the inclusion of the creche than from the substantial benefits previously held not violative of the Establishment Clause. As to administrative entanglement, there is no evidence of contact with church authorities concerning the content or design of the exhibition prior to or since the city’s purchase of the creche. No expenditures for maintenance of the creche have been necessary, and, since the city owns the creche, now valued at $200, the tangible material it contributes is de minimis. Political divisiveness alone cannot serve to invalidate otherwise permissible conduct, and, in any event, apart from the instant litigation, there is no evidence of political friction or divisiveness over the creche in the 40-year history of the city’s Christmas celebration. Pp. 680-685.
- (g) It would be ironic if the inclusion of the creche in the display, as part of a celebration of an event acknowledged in the Western World for 20 centuries, and in this country by the people, the Executive Branch,
- Congress, and the courts for 2 centuries, would so “taint” the exhibition as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol while hymns and carols are sung and played in public places including schools, and while Congress and state legislatures open public sessions with prayers, would be an overreaction contrary to this Nation’s history and this Court’s holdings. Pp. 685-686.
691 F.2d 1029, reversed.
BURGER, C. J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O’CONNOR, JJ., joined. O’CONNOR, J., filed a concurring opinion, post, p. 687. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p. 694. BLACKMUN, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 726.
William F. McMahon argued the cause for petitioners. With him on the briefs were Richard P. McMahon and Spencer W. Viner.
Solicitor General Lee argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General McGrath, Deputy Solicitor General Bator, Deputy Assistant Attorney General Kuhl, and Kathryn A. Oberly.
Amato A. DeLuca argued the cause for respondents. With him on the brief were Sandra A. Blanding, Burt Neuborne, E. Richard Larson, and Norman Dorsen. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed for the Coalition for Religious Liberty et al. by James J. Knicely and John W. Whitehead; for the Legal Foundation of America by David Crump; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and Nicholas E. Calio. Briefs of amici curiae urging affirmance were filed for the American Jewish Committee et al. by Samuel Rabinove; and for the Anti-Defamation League of B’Nai B’rith et al. by Justin J. Finger, Alan Dershowitz, Meyer Eisenberg, Jeffrey P. Sinensky, Nathan Z. Dershowitz, and Marc Stern.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to decide whether the Establishment Clause of the First Amendment prohibits a municipality [465 U.S. 668, 671] from including a creche, or Nativity scene, in its annual Christmas display.
The creche, which has been included in the display for 40 or more years, consists of the traditional figures, including the Infant Jesus, Mary and Joseph, angels, shepherds, kings, and animals, all ranging in height from 5″ to 5′. In 1973, when the present creche was acquired, it cost the city $1,365; it now is valued at $200. The erection and dismantling of the creche costs the city about $20 per year; nominal expenses are incurred in lighting the creche. No money has been expended on its maintenance for the past 10 years.
Respondents, Pawtucket residents and individual members of the Rhode Island affiliate of the American Civil Liberties Union, and the affiliate itself, brought this action in the United States District Court for Rhode Island, challenging the city’s inclusion of the creche in the annual display. The District Court held that the city’s inclusion of the creche in the display violates the Establishment Clause, 525 F. Supp. 1150, 1178 (1981), which is binding on the states through the [465 U.S. 668, 672] Fourteenth Amendment. The District Court found that, by including the creche in the Christmas display, the city has “tried to endorse and promulgate religious beliefs,” id., at 1173, and that “erection of the creche has the real and substantial effect of affiliating the City with the Christian beliefs that the creche represents.” Id., at 1177. This “appearance of official sponsorship,” it believed, “confers more than a remote and incidental benefit on Christianity.” Id., at 1178. Last, although the court acknowledged the absence of administrative entanglement, it found that excessive entanglement has been fostered as a result of the political divisiveness of including the creche in the celebration. Id., at 1179-1180. The city was permanently enjoined from including the creche in the display.
A divided panel of the Court of Appeals for the First Circuit affirmed. 691 F.2d 1029 (1982). We granted certiorari, 460 U.S. 1080 (1983), and we reverse.
- “to prevent, as far as possible, the intrusion of either [the church or the state] into the precincts of the other.” Lemon v. Kurtzman,
At the same time, however, the Court has recognized that
- “total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.” Ibid.
In every Establishment Clause case, we must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible. [465 U.S. 668, 673]
The Court has sometimes described the Religion Clauses as erecting a “wall” between church and state, see, e. g., Everson v. Board of Education, 330 U.S. 1, 18 (1947). The concept of a “wall” of separation is a useful figure of speech probably deriving from views of Thomas Jefferson. 1 The metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state.
No significant segment of our society and no institution within it can exist in a vacuum or in total or absolute isolation from all the other parts, much less from government. “It has never been thought either possible or desirable to enforce a regime of total separation . . . .” Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973). Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. See, e. g., Zorach v. Clauson, 343 U.S. 306, 314 , 315 (1952); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 211 (1948). Anything less would require the “callous indifference” we have said was never intended by the Establishment Clause. Zorach, supra, at 314. Indeed, we have observed, such hostility would bring us into “war with our national tradition as embodied in the First Amendment’s guaranty of the free exercise of religion.” McCollum, supra, at 211-212.
The interpretation of the Establishment Clause by Congress in 1789 takes on special significance in light of the Court’s emphasis that the First Congress
- “was a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest weight in the interpretation of that fundamental instument,” Myers v. United States,
- -175 (1926).
It is clear that neither the 17 draftsmen of the Constitution who were Members of the First Congress, nor the Congress of 1789, 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. It would be difficult to identify a more striking example of the accommodation of religious belief intended by the Framers.
- “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, supra, at 313.
See also Abington School District v. Schempp, 374 U.S. 203, 213 (1963).
Our history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders. Beginning in the early colonial period long before Independence, a day of Thanksgiving was celebrated as a religious holiday to give thanks for the bounties of Nature as gifts from God. President Washington and his successors proclaimed Thanksgiving, with all its religious overtones, a day of national celebration 2 and Congress made it a National Holiday more than a century ago. Ch. 167, 16 Stat. 168. That holiday has not lost its theme of expressing thanks for Divine aid3 any more than has Christmas lost its religious significance. [465 U.S. 668, 676]
Executive Orders and other official announcements of Presidents and of the Congress have proclaimed both Christmas and Thanksgiving National Holidays in religious terms. And, by Acts of Congress, it has long been the practice that federal employees are released from duties on these National Holidays, while being paid from the same public revenues that provide the compensation of the Chaplains of the Senate and the House and the military services. See J. Res. 5, 23 Stat. 516. Thus, it is clear that Government has long recognized – indeed it has subsidized – holidays with religious significance.
Other examples of reference to our religious heritage are found in the statutorily prescribed national motto “In God We Trust,” 36 U.S.C. 186, which Congress and the President mandated for our currency, see 31 U.S.C. 5112(d)(1) (1982 ed.), and in the language “One nation under God,” as part of the Pledge of Allegiance to the American flag. That pledge is recited by many thousands of public school children – and adults – every year.
Art galleries supported by public revenues display religious paintings of the 15th and 16th centuries, predominantly inspired by one religious faith. The National Gallery in [465 U.S. 668, 677] Washington, maintained with Government support, for example, has long exhibited masterpieces with religious messages, notably the Last Supper, and paintings depicting the Birth of Christ, the Crucifixion, and the Resurrection, among many others with explicit Christian themes and messages. 4 The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent – not seasonal – symbol of religion: Moses with the Ten Commandments. Congress has long provided chapels in the Capitol for religious worship and meditation.
There are countless other illustrations of the Government’s acknowledgment of our religious heritage and governmental sponsorship of graphic manifestations of that heritage. Congress has directed the President to proclaim a National Day of Prayer each year “on which [day] the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.” 36 U.S.C. 169h. Our Presidents have repeatedly issued such Proclamations. 5 Presidential Proclamations and messages have also issued to commemorate Jewish Heritage Week, Presidential Proclamation No. 4844, 3 CFR 30 (1982), and the Jewish High Holy Days, 17 Weekly Comp. of Pres. Doc. 1058 (1981). One cannot look at even this brief resume without finding that our history is pervaded by expressions of religious beliefs such as are found in Zorach. Equally pervasive is the evidence of accommodation of all faiths and all forms of religious expression, and hostility toward none. Through this accommodation, [465 U.S. 668, 678] as Justice Douglas observed, governmental action has “follow[ed] the best of our traditions” and “respect[ed] the religious nature of our people.” 343 U.S., at 314 .
Rather than mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith – as an absolutist approach would dictate – the Court has scrutinized challenged legislation or official conduct to determine whether, in reality, it establishes a religion or religious faith, or tends to do so. See Walz, supra, at 669. Joseph Story wrote a century and a half ago:
- “The real object of the [First] Amendment was . . . to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.” 3 J. Story, Commentaries on the Constitution of the United States 728 (1833).
In each case, the inquiry calls for line-drawing; no fixed, per se rule can be framed. The Establishment Clause like the Due Process Clauses is not a precise, detailed provision in a legal code capable of ready application. The purpose of the Establishment Clause “was to state an objective, not to write a statute.” Walz, supra, at 668. The line between permissible relationships and those barred by the Clause can no [465 U.S. 668, 679] more be straight and unwavering than due process can be defined in a single stroke or phrase or test. The Clause erects a “blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.” Lemon, 403 U.S., at 614 .
In the line-drawing process we have often found it useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion. Lemon, supra. But, we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area. See, e. g., Tilton v. Richardson, 403 U.S. 672, 677 -678 (1971); Nyquist, 413 U.S., at 773 . In two cases, the Court did not even apply the Lemon “test.” We did not, for example, consider that analysis relevant in Marsh v. Chambers,463 U.S. 783 (1983). Nor did we find Lemon useful in Larson v. Valente, 456 U.S. 228 (1982), where there was substantial evidence of overt discrimination against a particular church.
In this case, the focus of our inquiry must be on the creche in the context of the Christmas season. See, e. g., Stone v. Graham, 449 U.S. 39 (1980) (per curiam); Abington School District v. Schempp, 374 U.S. 203 (1963). In Stone, for example, we invalidated a state statute requiring the posting of a copy of the Ten Commandments on public classroom walls. But the Court carefully pointed out that the Commandments were posted purely as a religious admonition, not “integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like.” 449 U.S., at 42 . Similarly, in Abington, although the Court struck down the practices in two States requiring daily Bible readings in public schools, it specifically noted that nothing in the Court’s holding was intended to “indicat[e] that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently [465 U.S. 668, 680] with the First Amendment.” 374 U.S., at 225 . Focus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause.
The Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded there was no question that the statute or activity was motivated wholly by religious considerations. See, e. g., Stone v. Graham, supra, at 41; Epperson v. Arkansas, 393 U.S. 97, 107 -109 (1968); Abington School District v. Schempp, supra, at 223-224; Engel v. Vitale, 370 U.S. 421, 424 -425 (1962). Even where the benefits to religion were substantial, as in Everson v. Board of Education, 330 U.S. 1 (1947); Board of Education v. Allen, 392 U.S. 236 (1968); Walz, supra; and Tilton, supra, we saw a secular purpose and no conflict with the Establishment Clause. Cf. Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982).
The District Court inferred from the religious nature of the creche that the city has no secular purpose for the display. In so doing, it rejected the city’s claim that its reasons for including the creche are essentially the same as its reasons for sponsoring the display as a whole. The District Court plainly erred by focusing almost exclusively on the creche. When viewed in the proper context of the Christmas Holiday season, it is apparent that, on this record, there is insufficient evidence to establish that the inclusion of the creche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message. In a pluralistic society a variety of motives and purposes are implicated. The city, like the Congresses and Presidents, however, has principally taken note of a significant historical religious event long celebrated in the Western World. The creche in the display depicts the historical origins of this traditional event long recognized as a National Holiday. See Allen v. Hickel, 138 U.S. App. D.C. 31, 424 F.2d 944 [465 U.S. 668, 681] (1970); Citizens Concerned for Separation of Church and State v. City and County of Denver, 526 F. Supp. 1310 (Colo. 1981).
The narrow question is whether there is a secular purpose for Pawtucket’s display of the creche. The display is sponsored by the city to celebrate the Holiday and to depict the origins of that Holiday. These are legitimate secular purposes. 6 The District Court’s inference, drawn from the religious nature of the creche, that the city has no secular purpose was, on this record, clearly erroneous. 7
The District Court found that the primary effect of including the creche is to confer a substantial and impermissible benefit on religion in general and on the Christian faith in particular. Comparisons of the relative benefits to religion of different forms of governmental support are elusive and difficult to make. But to conclude that the primary effect of including the creche is to advance religion in violation of the Establishment Clause would require that we view it as more beneficial to and more an endorsement of religion, for example, than expenditure of large sums of public money for textbooks supplied throughout the country to students attending church-sponsored schools, Board of Education v. Allen, supra; 8 expenditure of public funds for transportation of [465 U.S. 668, 682] students to church-sponsored schools, Everson v. Board of Education, supra; 9 federal grants for college buildings of church-sponsored institutions of higher education combining secular and religious education, Tilton v. Richardson, 403 U.S. 672 (1971); 10 noncategorical grants to church-sponsored colleges and universities, Roemer v. Board of Public Works, 426 U.S. 736 (1976); and the tax exemptions for church properties sanctioned in Walz v. Tax Comm’n, 397 U.S. 664 (1970). It would also require that we view it as more of an endorsement of religion than the Sunday Closing Laws upheld in McGowan v. Maryland, 366 U.S. 420 (1961); 11 the release time program for religious training in Zorach v. Clauson, 343 U.S. 306 (1952); and the legislative prayers upheld in Marsh v. Chambers, 463 U.S. 783 (1983).
We are unable to discern a greater aid to religion deriving from inclusion of the creche than from these benefits and endorsements previously held not violative of the Establishment Clause. What was said about the legislative prayers in Marsh, supra, at 792, and implied about the Sunday Closing Laws in McGowan is true of the city’s inclusion of the creche: its “reason or effect merely happens to coincide or harmonize with the tenets of some . . . religions.” See McGowan, supra, at 442.
This case differs significantly from Larkin v. Grendel’s Den, Inc., supra, and McCollum, where religion was substantially [465 U.S. 668, 683] aided. In Grendel’s Den, important governmental power – a licensing veto authority – had been vested in churches. In McCollum, government had made religious instruction available in public school classrooms; the State had not only used the public school buildings for the teaching of religion, it had “afford[ed] sectarian groups an invaluable aid . . . [by] provid[ing] pupils for their religious classes through use of the State’s compulsory public school machinery.” 333 U.S., at 212 . No comparable benefit to religion is discernible here.
The dissent asserts some observers may perceive that the city has aligned itself with the Christian faith by including a Christian symbol in its display and that this serves to advance religion. We can assume, arguendo, that the display advances religion in a sense; but our precedents plainly contemplate that on occasion some advancement of religion will result from governmental action. The Court has made it abundantly clear, however, that “not every law that confers an `indirect,’ `remote,’ or `incidental’ benefit upon [religion] is, for that reason alone, constitutionally invalid.” Nyquist, 413 U.S., at 771 ; see also Widmar v. Vincent, 454 U.S. 263, 273 (1981). Here, whatever benefit there is to one faith or religion or to all religions, is indirect, remote, and incidental; display of the creche is no more an advancement or endorsement of religion than the Congressional and Executive recognition of the origins of the Holiday itself as “Christ’s Mass,” or the exhibition of literally hundreds of religious paintings in governmentally supported museums.
The District Court found that there had been no administrative entanglement between religion and state resulting from the city’s ownership and use of the creche. 525 F. Supp., at 1179. But it went on to hold that some political divisiveness was engendered by this litigation. Coupled with its finding of an impermissible sectarian purpose and effect, this persuaded the court that there was “excessive entanglement.” The Court of Appeals expressly declined to [465 U.S. 668, 684] accept the District Court’s finding that inclusion of the creche has caused political divisiveness along religious lines, and noted that this Court has never held that political divisiveness alone was sufficient to invalidate government conduct.
Entanglement is a question of kind and degree. In this case, however, there is no reason to disturb the District Court’s finding on the absence of administrative entanglement. There is no evidence of contact with church authorities concerning the content or design of the exhibit prior to or since Pawtucket’s purchase of the creche. No expenditures for maintenance of the creche have been necessary; and since the city owns the creche, now valued at $200, the tangible material it contributes is de minimis. In many respects the display requires far less ongoing, day-to-day interaction between church and state than religious paintings in public galleries. There is nothing here, of course, like the “comprehensive, discriminating, and continuing state surveillance” or the “enduring entanglement” present in Lemon, 403 U.S., at 619 -622.
The Court of Appeals correctly observed that this Court has not held that political divisiveness alone can serve to invalidate otherwise permissible conduct. And we decline to so hold today. This case does not involve a direct subsidy to church-sponsored schools or colleges, or other religious institutions, and hence no inquiry into potential political divisiveness is even called for, Mueller v. Allen, 463 U.S. 388, 403 -404, n. 11 (1983). In any event, apart from this litigation there is no evidence of political friction or divisiveness over the creche in the 40-year history of Pawtucket’s Christmas celebration. The District Court stated that the inclusion of the creche for the 40-years has been “marked by no apparent dissension” and that the display has had a “calm history.” 525 F. Supp., at 1179. Curiously, it went on to hold that the political divisiveness engendered by this lawsuit was evidence of excessive entanglement. A litigant cannot, by the very act of commencing a lawsuit, however, create the appearance [465 U.S. 668, 685] of divisiveness and then exploit it as evidence of entanglement.
We are satisfied that the city has a secular purpose for including the creche, that the city has not impermissibly advanced religion, and that including the creche does not create excessive entanglement between religion and government.
Of course the creche is identified with one religious faith but no more so than the examples we have set out from prior cases in which we found no conflict with the Establishment [465 U.S. 668, 686] Clause. See, e. g., McGowan v. Maryland, 366 U.S. 420 (1961); Marsh v. Chambers, 463 U.S. 783 (1983). It would be ironic, however, if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for 2 centuries, would so “taint” the city’s exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol – the creche – at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and legislatures open sessions with prayers by paid chaplains, would be a stilted overreaction contrary to our history and to our holdings. If the presence of the creche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious heritage, are equally offensive to the Constitution.
The Court has acknowledged that the “fears and political problems” that gave rise to the Religion Clauses in the 18th century are of far less concern today. Everson, 330 U.S., at 8 . We are unable to perceive the Archbishop of Canterbury, the Bishop of Rome, or other powerful religious leaders behind every public acknowledgment of the religious heritage long officially recognized by the three constitutional branches of government. Any notion that these symbols pose a real danger of establishment of a state church is farfetched indeed.
- It is so ordered.