Key point 13-04. The display of religious symbols on public property does not violate the First Amendment nonestablishment of religion clause so long as they are part of a larger display that includes secular symbols.
1. In General
Several courts have ruled on the constitutionality of displaying religious symbols on public property. Many courts have concluded that the maintenance of crosses on public property constitutes an impermissible establishment of religion.27 See, e.g., American Civil Liberties Union v. Rabun County Chamber of Commerce, Inc., 678 F.2d 1379 (11th Cir. 1982); ACLU v. Mississippi State General Services Administration, 652 F. Supp. 380 (S.D. Miss. 1987) (state office building created a 22-story tall “cross” during the Christmas season by leaving the lights on in designated offices after hours); Fox v. City of Los Angeles, 587 P.2d 663 (Cal. 1978); Eugene Sand and Gravel, Inc. v. City of Eugene, 558 P.2d 338 (Ore. 1976); Lowe v. City of Eugene, 463 P.2d 360 (Ore. 1969).One court observed:
The employment of publicly owned and publicly maintained property for a highly visible display of the character of the cross in this case necessarily creates an inference of official endorsement of the general religious beliefs which underlie that symbol. Accordingly, persons who do not share those beliefs may feel that their own beliefs are stigmatized or officially deemed less worthy than those awarded the appearance of the city’s endorsement. … The government has no business placing its power, prestige, or property at the disposal of private persons or groups either to aid or oppose any religion.28 Lowe v. City of Eugene, 463 P.2d 360, 363 (Ore. 1969).
Other courts have approved of the maintenance of crosses on public property.29 See, e.g., Paul v. Dade County, 202 So.2d 833 (Fla. 1967); Meyer v. Oklahoma City, 496 P.2d 789 (Okla. 1972).In one case, a court emphasized that a cross was maintained “to decorate streets and attract holiday shoppers to downtown, rather than establish or create a religious symbol or to promote or establish a religion.”30 Paul v. Dade County, 202 So.2d 833-835 (Fla. 1967).
One court ruled that it is constitutionally permissible for public schools to temporarily display children’s artwork in school rooms and halls, even though some of the artwork is religious.31 Chamberlin v. Dade County, 143 So.2d 21 (Fla. 1962).The court reasoned:
Are school children to be forbidden from expressing their natural artistic talents through media including religious themes? Or, are the results of their efforts to be excluded from display and recognition merely because they choose to adopt a religious, rather than a secular subject? The answer should be obvious. To impose such a restriction would more nearly approach a restraint upon the exercise of religion than does the present practice of the school board in permitting such displays.32 Id. at 35-6.
The Supreme Court of New Hampshire upheld a state law requiring that all public school classrooms contain a sign stating “In God We Trust.”33 Opinion of the Justices, 228 A.2d 161 (N.H. 1967).The court observed that such words “appear on all coins and currency, on public buildings, and in our national anthem, and the appearance of these words as a motto on plaques in the public school need not offend the establishment clause. …”34 Id. at 164.
2. United States Supreme Court Decisions
The United States Supreme Court has issued a number of rulings addressing the constitutionality of religious symbols on public property.
Lynch v. Donnelly, 465 U.S. 668 (1984)
In 1984, the Supreme Court held that a city’s practice of including a nativity creche in an annual Christmas display on public property did not violate the establishment clause. Besides the creche, the city’s display contained several “secular” objects, including a Santa Claus house, a talking Christmas tree, reindeer, candy-striped poles, and lights. The Court, applying the three-part Lemon test 35 See § 12-01.1,supra.“in the context of the Christmas season,” concluded that inclusion of the creche in the city’s display had the secular purpose of depicting the origin of the Christmas holiday, did not have a primary effect of advancing religion, and did not excessively entangle church and state. Acknowledging that the creche “in a sense” advanced religion, the Court concluded that its previous decisions make it “abundantly clear” that not every law or governmental practice that confers an indirect or incidental benefit upon religion is for that reason alone impermissible. Drawing support from the history and context of the display, the Court noted that
[i]t would be ironic … 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 two centuries, would so “taint” the City’s exhibit as to render it violative of the establishment clause.36 465 U.S. at 686.
Board of Trustees v. McCreary, 471 U.S. 83 (1985)
In a similar case, the Court upheld the practice of permitting a nativity scene in a city park during the Christmas season at virtually no expense to the city. Unlike the situation in the Lynch case, the nativity scene was not in the context of a larger display containing numerous “secular” objects. Since the ruling was by an equally divided Court (4-4), it is controlling only in the second federal circuit (New York, Vermont, and Connecticut).
County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989)
In 1989, the Court again addressed the permisibility of nativity scenes on public property. For a number of years, a county government permitted a Roman Catholic group to display a nativity creche on the main staircase of the county courthouse during the Christmas season. The creche included figures of the infant Jesus, Mary, Joseph, farm animals, shepherds, wise men, and an angel bearing a banner proclaiming “Gloria in Excelsis Deo” (glory to God in the highest). The creche bore a plaque stating, “This display donated by the Holy Name Society.” The creche was surrounded by poinsettia plants, but otherwise no other seasonal figures or ornaments were located nearby. A municipal building located a few blocks away presented an annual holiday display each December on a public sidewalk outside the main entrance to the building. The display included a large (45-foot) Christmas tree decorated with lights and ornaments, an 18-foot Chanukah menorah (a candleholder with eight branches) owned by a Jewish group, and a sign reading “during this holiday season the City of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.” The American Civil Liberties Union (ACLU) filed a lawsuit claiming that these displays violated the constitutional ban on any “establishment of religion.” A trial court permitted the displays, but a federal appeals court prohibited them.
The Supreme Court agreed to hear the case, and ruled that the nativity creche had to be removed but that the Chanukah menorah was permissible. The Court observed that among other things, the constitutional prohibition of any establishment of religion prevented any governmental “endorsement” of religion. The constitution, noted the Court, “precludes government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.” Whether or not a particular display violates the constitution depends upon its context. The Court affirmed its earlier decision in Lynch upholding the validity of a Christmas creche that was part of a larger seasonal display that included a Santa Claus, reindeer, a talking wishing well, trees, and lights. Here, however, “the creche stands alone —it is the single element of the display.” This, combined with the fact that the creche was located inside the main entrance of the “seat of county government,” sent an “unmistakable message that [the county] supports and promotes the Christian praise to God that is the creche’s religious message.” The Court concluded: “The government may acknowledge Christmas as a cultural phenomenon, but under the First Amendment it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus. …[G]overnment may celebrate Christmas in some manner and form, but not in a way that endorses Christian doctrine.”
On the other hand, the Court upheld the validity of the Chanukah menorah, since (1) the menorah, being a mere candleholder, was not an “exclusively religious” symbol but rather “has both religious and secular dimensions”; and (2) the menorah stood next to a Christmas tree and a sign saluting liberty and accordingly was part of a “larger display” that detracted from the menorah’s religious message. Justice Kennedy, in dissent, criticized the Court’s majority for harboring a “latent hostility” and “callous indifference” toward religion. The Court’s majority found such a view “as offensive as it is absurd,” adding that “there may be some would-be theocrats who wish that their religion were an established creed … but this claim gets no relief, for it contradicts the fundamental premise of the establishment clause itself.”
McCreary County v. American Civil Liberties Union, 545 U.S. 844 (2005)
In 1999 two county courthouses in Kentucky hung large, gold-framed copies of an abridged text of the King James version of the Ten Commandments (including a citation to the Book of Exodus), on a courthouse wall. In one county, the placement of the Commandments responded to an order of the county requiring “the display to be posted in a very high traffic area of the courthouse.” In the other county, the Commandments were hung in a ceremony presided over by a judge, who called them “good rules to live by” and who recounted the story of an astronaut who became convinced “there must be a divine God” after viewing the Earth from the moon. The judge was accompanied by the pastor of his church, who called the Commandments “a creed of ethics” and told the press after the ceremony that displaying the Commandments was “one of the greatest things the judge could have done to close out the millennium.”
In each county, the hallway display was “readily visible to county citizens who use the courthouse to conduct their civic business, to obtain or renew driver’s licenses and permits, to register cars, to pay local taxes, and to register to vote.”
In 1999 the American Civil Liberties Union (ACLU) of Kentucky sued the two counties in federal court, seeking an order barring the displays which the ACLU claimed were violations of the First Amendment’s Nonestablishment of Religion Clause. Before the court issued a ruling, each county authorized a second, expanded display, stating that the Ten Commandments are “the precedent legal code upon which the civil and criminal codes of Kentucky are founded,” and stating several grounds for taking that position, including that:
The Ten Commandments are codified in Kentucky’s civil and criminal laws”; that the Kentucky House of Representatives had in 1993 “voted unanimously to adjourn in remembrance and honor of Jesus Christ, the Prince of Ethics”; that the “County Judge and magistrates agree with the arguments set out by Judge [Roy] Moore” in defense of his “display of the Ten Commandments in his courtroom”; and that the “Founding Fathers had an explicit understanding of the duty of elected officials to publicly acknowledge God as the source of America’s strength and direction.”
The expanded displays of the Ten Commandments included eight other documents in smaller frames, each either having a religious theme or excerpted to highlight a religious element. The documents were the “endowed by their Creator” passage from the Declaration of Independence; the Preamble to the Constitution of Kentucky; the national motto, “In God We Trust”; a page from the Congressional Record of February 2, 1983, proclaiming the Year of the Bible and including a statement of the Ten Commandments; a proclamation by President Abraham Lincoln designating April 30, 1863, a National Day of Prayer and Humiliation; an excerpt from President Lincoln’s “Reply to Loyal Colored People of Baltimore upon Presentation of a Bible,” reading that “the Bible is the best gift God has ever given to man”; a proclamation by President Reagan marking 1983 the Year of the Bible; and the Mayflower Compact.
A federal district court ordered the displays at both county courthouses removed “immediately,” and warned county officials not to “erect or cause to be erected similar displays.” A federal appeals court affirmed, and the case was appealed to the United States Supreme Court.
The Court conceded that the expanded display included eight other historical documents in addition to the Ten Commandments. However, this did not render the posting of the Ten Commandments permissible, since the expanded display included other documents “with highlighted references to God as their sole common element. The display’s unstinting focus was on religious passages, showing that the counties were posting the Commandments precisely because of their sectarian content. That demonstration of the government’s objective was enhanced by serial religious references and the accompanying resolution’s claim about the embodiment of ethics in Christ. Together, the display and resolution presented an indisputable, and undisputed, showing of an impermissible purpose.”
The Court stressed that it was not outlawing all exhibitions of the Ten Commandments on government property:
Nor do we have occasion here to hold that a sacred text can never be integrated constitutionally into a governmental display on the subject of law, or American history. We do not forget, and in this litigation have frequently been reminded, that our own courtroom frieze was deliberately designed in the exercise of governmental authority so as to include the figure of Moses holding tablets exhibiting a portion of the Hebrew text of the later, secularly phrased Commandments; in the company of 17 other lawgivers, most of them secular figures, there is no risk that Moses would strike an observer as evidence that the National Government was violating neutrality in religion. The dissent notes that another depiction of Moses and the Commandments adorns this Court’s east pediment. But as with the courtroom frieze, Moses is found in the company of other figures, not only great but secular.
The Court concluded that
the principle of neutrality has provided a good sense of direction: the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the free exercise clause. The principle has been helpful simply because it responds to one of the major concerns that prompted adoption of the religion clauses. The framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters, but to guard against the civic divisiveness that follows when the government weighs in on one side of religious debate; nothing does a better job of roiling society, a point that needed no explanation to the descendants of English Puritans and Cavaliers (or Massachusetts Puritans and Baptists). A sense of the past thus points to governmental neutrality as an objective of the establishment clause, and a sensible standard for applying it. To be sure, given its generality as a principle, an appeal to neutrality alone cannot possibly lay every issue to rest, or tell us what issues on the margins are substantial enough for constitutional significance, a point that has been clear from the founding era to modern times. But invoking neutrality is a prudent way of keeping sight of something the framers of the First Amendment thought important.
Van Orden v. Perry, 545 U.S. 677 (2005)
The 22 acres surrounding the Texas State Capitol contain 17 monuments and 21 historical markers commemorating the “people, ideals, and events that compose Texan identity.” One of the monuments is a 6-feet high portrayal of the Ten Commandments located between the state capitol and state supreme court building. An eagle grasping the American flag, an eye inside of a pyramid, and two small tablets with what appears to be an ancient script are carved above the text of the Ten Commandments. Below the text are two Stars of David and the superimposed Greek letters Chi and Rho, which represent Christ. The bottom of the monument bears the inscription “Presented to the People and Youth of Texas by the Fraternal Order of Eagles of Texas.” The other 16 monuments include those depicting the Heroes of the Alamo, Confederate Soldiers, Volunteer Firemen, Texas Rangers, Spanish-American War, Texas National Guard, Texas School Children, Pearl Harbor and Korean War Veterans, Soldiers of World War I, Disabled Veterans, and Texas Peace Officers.
The Fraternal Order of Eagles (a national social, civic, and patriotic organization) paid the cost of erecting the Ten Commandments monument, the dedication of which was presided over by two state legislators. Nearly 50 years after the erection of the Ten Commandments monument, an attorney who frequently walked past the monument on his way to the state supreme court library sued to have the monument removed, claiming that it offended him and that it constituted an establishment of religion in violation of the First Amendment. A federal district court ruled that the monument did not violate the First Amendment, and a federal appeals court affirmed this ruling. The case was appealed to the United States Supreme Court.
The Court rejected the so-called Lemon test for resolving the case before it. The Lemon test comes from a 1971 decision of the Supreme Court in which it ruled that a law or practice does not violate the establishment clause if it (1) has a secular legislative purpose; (2) has a principal or primary effect that neither advances nor inhibits religion; and (3) does not foster an excessive government entanglement with religion. The Court concluded that the Lemon test was “not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds.” Instead, our “analysis is driven both by the nature of the monument and by our Nation’s history.” It observed that “there is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.” It cited numerous examples, many of which were mentioned by Justice Scalia in his dissenting opinion in the McCreary case (see above).
This recognition of religion in public life back to the founding of the country has led to decisions finding that the establishment clause permits some public accommodations of religion. It noted that “acknowledgments of the role played by the Ten Commandments in our Nation’s heritage are common throughout America,” and that “we need only look within our own Courtroom. Since 1935, Moses has stood, holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze. Representations of the Ten Commandments adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom. Moses also sits on the exterior east facade of the building holding the Ten Commandments tablets.” The Court continued,
Similar acknowledgments can be seen throughout a visitor’s tour of our Nation’s Capital. For example, a large statue of Moses holding the Ten Commandments, alongside a statue of the Apostle Paul, has overlooked the rotunda of the Library of Congress’ Jefferson Building since 1897. And the Jefferson Building’s Great Reading Room contains a sculpture of a woman beside the Ten Commandments with a quote above her from the Old Testament (Micah 6:8). A medallion with two tablets depicting the Ten Commandments decorates the floor of the National Archives. Inside the Department of Justice, a statue entitled “The Spirit of Law” has two tablets representing the Ten Commandments lying at its feet. In front of the Ronald Reagan Building is another sculpture that includes a depiction of the Ten Commandments. So too a 24-foot-tall sculpture, depicting, among other things, the Ten Commandments and a cross, stands outside the federal courthouse that houses both the Court of Appeals and the District Court for the District of Columbia. Moses is also prominently featured in the Chamber of the United States House of Representatives.
The Court concluded: “Texas has treated her Capitol grounds monuments as representing the several strands in the state’s political and legal history. The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government. We cannot say that Texas’ display of this monument violates the establishment clause of the First Amendment.”
These decisions indicate that nativity displays will be permissible so long as they are incorporated into a larger “seasonal” display containing secular objects.37 See also Snowden v. Town of Bay Harbor Islands, 358 F.Supp.2d 1178 (S.D. Fla. 2004); Doe v. Wilson County School System, 2008 WL 2235334 (M.D. Tenn. 2008).Nativity displays standing alone on public property violate the Court’s present interpretation of the Establishment Clause.
The use of the national motto “In God We Trust” on all United States coins and currency has been upheld on the ground that such use “has nothing whatsoever to do with the establishment of religion” since its use “is of a patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise.”38 Aronow v. United States, 432 F.2d 242, 243 (9th Cir. 1970). Accord Lambeth v. Board of Commissioners, 407 F.3d 266 (4th Cir. 2005).