Background Information

This case looked at the constitutionality of two holiday displays in downtown Pittsburgh, Pennsylvania. One was a creche standing on the "grand staircase" of the Allegheny County Courthouse, a very prominent position in the courthouse and readily visible by all who entered.

The creche included figures of Joseph, Mary, Jesus, animals, shepherds, and an angel bearing a huge banner with the words "Gloria in Excelsis Deo!" ("Glory to in the Highest") emblazoned upon it. Next to it was a sign stating "This Display Donated by the Holy Name Society" (a Catholic organization).

The other display was a block away in a building jointly owned by both the city and the county. It was an 18-foot tall Hanukkah menorah donated by a group of Lubavitcher Hasidim (an ultra-orthodox branch of Judaism). With the menorah was a 45-foot tall Christmas tree, at the base of which was a sign stating "Salute to Liberty."

Some local residents, supported by the ACLU, filed suit claiming that both displays violated the . A Court of Appeals agreed and ruled that both displays violated of the First Amendment because they endorsed religion.

Fast Facts: County of Allegheny v. ACLU of Greater Pittsburgh Chapter Case Argued : February 22, 1989

: February 22, 1989 Decision Issued: July 2, 1989

July 2, 1989 Petitioner: County of Allegheny

County of Allegheny Respondent: American Civil Liberties Union, Greater Pittsburgh Chapter

American Civil Liberties Union, Greater Pittsburgh Chapter Key Question: Did two public-sponsored holiday displays—one a nativity scene, the other a menorah—constitute state endorsement of religion which would be in violation of the Establishment Clause of the First Amendment?

Did two public-sponsored holiday displays—one a nativity scene, the other a menorah—constitute state endorsement of religion which would be in violation of the Establishment Clause of the First Amendment? Majority Decision: Justices Brennan, Marshall, Blackmun, Scalia, and Kennedy

Justices Brennan, Marshall, Blackmun, Scalia, and Kennedy Dissenting : Justices Rehnquist, White, Stevens, and O’Connor

: Justices Rehnquist, White, Stevens, and O’Connor Ruling: The location and messaging of the display determined whether or not it was in violation of the Establishment Clause. The prominent display of the crèche with wording directly in praising the birth of Jesus sent a clear message that the county supported and promoted that religion. Due to its "particular physical setting," the menorah display was deemed constitutionally legitimate.

Court Decision

Arguments were made on February 22, 1989. On July 3, 1989, the court ruled 5 to 4 (to strike) and 6 to 3 (to uphold). This was a deeply and unusually fragmented Court Decision, but in the final analysis the Court ruled that while the creche was unconstitutional, the menorah display was not.

Although in the Court used the three-part Lemon test to allow a city in Rhode Island to display a creche as part of a holiday display, the same did not hold here because the Pittsburgh display was not used in conjunction with other secular, seasonal decorations. Lynch had established what came to be called the "plastic reindeer rule" of secular context which the creche failed.

Due to this independence along with the prominent place which the creche occupied (thus signaling government endorsement), the display was determined by Justice Blackmun in his plurality opinion to have a specific religious purpose. The fact that the creche was created by a private organization did not eliminate the apparent endorsement by the government of the display. Moreover, the placement of the display in such a prominent position emphasized the message of supporting religion.The creche scene stood on the grand staircase of a courthouse alone.

The Supreme Court said:

...the creche sits on the Grand Staircase, the "main" and "most beautiful part" of the building that is the seat of county government. No viewer could reasonably think that it occupies this location without the support and approval of the government.

Thus, by permitting the display of the creche in this particular physical setting, the county sends an unmistakable message that it supports and promotes the Christian praise to God that is the creche's religious message... The Establishment Clause does not limit only the religious content of the government's own communications. It also prohibits the government's support and promotion of religious communications by religious organizations.

Unlike the creche, however, the menorah on display was not determined to have an exclusively religious message. The menorah was placed next to "a Christmas tree and a sign saluting liberty" which the Court found important. Instead of endorsing any religious group, this display with the menorah recognized the holidays as "part of the same winter-holiday season". Thus, the display in its entirety did not appear to endorse or disapprove of any religion, and the menorah was permitted to remain. With regards to the menorah, the Supreme Court said:

...it is not "sufficiently likely" that residents of Pittsburgh will perceive the combined display of the tree, the sign, and the menorah as an "endorsement" or "disapproval ...of their individual religious choices." While an adjudication of the display's effect must taken into account the perspective of one who is neither Christian nor Jewish, as well as of those who adhere to either of these religions, ibid., the constitutionality of its effect must also be judged according to the standard of a "reasonable observer." ...When measured against this standard, the menorah need not be excluded from this particular display.

The Christmas tree alone in the Pittsburgh location does not endorse Christian belief; and, on the facts before us, the addition of the menorah "cannot fairly be understood to" result in the simultaneous endorsement of Christian and Jewish faiths. On the contrary, for purposes of the Establishment Clause, the city's overall display must be understood as conveying the city's secular recognition of different traditions for celebrating the winter-holiday season.

This was a curious conclusion because the Chabad, the Hasidic sect which owned the menorah, celebrated Chanukah as a religious holiday and advocated the display of their menorah as part of their mission of proselytizing. Also, there was a clear record of lighting the menorah in religious ceremonies - but this was ignored by the Court because the ACLU failed to bring it up. It is also interesting that Blackmun went to some length to argue that the menorah should be interpreted in light of the tree rather than the other way around. No real justification is offered for this perspective, and it is interesting to wonder what the decision would have been had the menorah been larger than the tree, rather than the actual situation where the tree was the larger of the two.

In a sharply worded dissent, Justice Kennedy denounced the Lemon test used to evaluate the religious displays and argued that "...any test which might invalidate longstanding traditions cannot be a proper reading of the [Establishment] Clause." In other words, tradition - even if it includes and support of sectarian religious messages - must trump evolving understandings of religious freedom.

Justice O'Connor, in her concurring opinion, responded:

Justice Kennedy submits that the endorsement test is inconsistent with our precedents and traditions because, in his words, if it were "applied without artificial exceptions for historical practice," it would invalidate many traditional practices recognizing the role of religion in our society."

This criticism shortchanges both the endorsement test itself and my explanation of the reason why certain long standing government acknowledgments of religion do not, under that test, convey a message of endorsement. Practices such as legislative prayers or opening Court sessions with "God save the United States and this honorable Court" serve the secular purposes of "solemnizing public occasions" and "expressing confidence in the future."

These examples of ceremonial deism do not survive Establishment Clause scrutiny simply by virtue of their historical longevity alone. Historical acceptance of a practice does not in itself validate that practice under the Establishment Clause if the practice violates the values protected by that Clause, just as historical acceptance of racial or gender based discrimination does not immunize such practices from scrutiny under the Fourteenth Amendment.

Justice Kennedy's dissent also argued that prohibiting the government from celebrating Christmas as a religious holiday is, itself, a discrimination against Christians. In response to this, Blackmun wrote in the majority opinion that:

Celebrating Christmas as a religious, as opposed to a secular, holiday, necessarily entails professing, proclaiming, or believing that Jesus of Nazareth, born in a manger in Bethlehem, is the Christ, the Messiah. If the government celebrates Christmas as a religious holiday (for example, by issuing an official proclamation saying: "We rejoice in the glory of Christ's birth!"), it means that the government really is declaring Jesus to be the Messiah, a specifically Christian belief.

In contrast, confining the government's own celebration of Christmas to the holiday's secular aspects does not favor the religious beliefs of non-Christians over those of Christians. Rather, it simply permits the government to acknowledge the holiday without expressing an allegiance to Christian beliefs, an allegiance that would truly favor Christians over non-Christians. To be sure, some Christians may wish to see the government proclaim its allegiance to Christianity in a religious celebration of Christmas, but the Constitution does not permit the gratification of that desire, which would contradict the "'the logic of secular liberty'" it is the purpose of the Establishment Clause to protect.

Significance

Although it seemed to do otherwise, this decision basically permitted the existence of competing religious symbols, conveying a message of accommodation of religious plurality. While a single symbol standing alone might be unconstitutional, its inclusion with other secular/seasonal decorations may offset an apparent endorsement of a religious message.

As a result, communities which desire holiday decorations must now create a display that does not send the message of endorsing a particular religion to the exclusion of others. Displays must contain a variety of symbols and be inclusive of differing perspectives.

Perhaps equally important for future cases, however, was the fact that the four dissenters in Allegheny County would have upheld both the creche and menorah displays under a more relaxed, deferential standard. This position has gained a great deal of ground over the years following this decision.

In addition, Kennedy's Orwellian position that a failure to celebrate Christmas as a Christian holiday qualifies as discrimination against Christians has also become popular - it is, effectively, the logical conclusion of the accommodationist position that an absence of government support for religion is the same as government hostility towards religion. Naturally, such discrimination is only relevant when it comes to Christianity; the government fails to celebrate Ramadan as a religious holiday, but people who agree with Kennedy's dissent are entirely unconcerned by that because Muslims are a minority.