“If the property belongs to God he is able to pay the tax.” Robert Ingersoll

In Lynch v. Donnelly (1984) the Supreme Court ruled 5-4 that a Christmas display in a mall in Pawtucket Rhode Island did not advocate “religion.”  SCOTUS found that the crèche fulfilled a “secular purpose” of the city to “celebrate the Holiday and to depict the origins of that Holiday.”[1] Chief Justice Burger’s logic was that since this crèche was not nearly as much of an endorsement of religion as previous precedent set in Everson v. Board of Education (1947) and Board of Education v. Allen (1968), and since “some advancement of religion will result from governmental action,”[2] the display did not violate the Establishment Clause.

Justice Sandra Day O’Connor made her debut in Lynch, and while concurring with Berger, created what is now called the “Endorsement Test.”  Justice O’Connor interprets the purpose prong of the “Lemon Test” to be primarily about whether or not the government conveys a message of endorsing religion.  She writes, “Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.”[3]

The dissenting judges included Brennan, Blackmun, Marshall, and Stevens.  Brennan writes, “Despite the narrow contours of the Court’s opinion, our precedents, in my view, compel the holding that Pawtucket’s inclusion of a life-sized display depicting the biblical description of the birth of Christ as part of its annual Christmas celebration is unconstitutional.”[4]

Brennan thinks that those judges who affirmed had a “less-than-vigorous application” of the Lemon Test.  He cites Stone v. Graham (1980) as an example where SCOTUS ruled that a Kentucky statute requiring the posting of the Decalogue in classrooms did not have a “secular purpose” but was actually endorsing religion.  In the same way, Brennan thinks the crèche lacks a secular purpose and explicitly endorses Christianity.

In my opinion, if one were to take seriously the Lemon Test and O’Connor’s “Endorsement Test,” the crèche would be considered unconstitutional.  Even if one were to merge the purpose and effect prongs together (as O’Connor is known to do), it is hard to imagine a nativity scene on town property passing the Lemon Test.  Interpreting the crèche as a directly Christian symbol, even if it is surrounded by secular symbols like Santa, reindeer, and a banner saying “Seasons Greetings,” I cannot see its secular purpose, and certainly cannot see how it would not have the primary effect of advancing religion.

Similarly, if we were to take O’Connor’s “Endorsement Test” and apply it to this case, I think it would fail.  Image an alien from another galaxy (a “reasonable observer”) visits the United States.  She sees crosses on public land, the Decalogue in courtrooms, “under God” in the pledge of allegiance, and “In God We Trust” on the currency.  Do you think this alien would not come to the conclusion that the United States government endorses some kind of Judeo-Christian perspective?  I think this alien would be confident this was a Christian nation.  Likewise with the Pawtucket crèche: the alien would see Joseph, Mary, angels, and baby Jesus and reasonably think that this town, and in turn this country, was Christ-focused.

Two prominent arguments emerged in Lynch that deserve our attention: 1) The crèche is actually a secular symbol, and 2) American tradition and history are important enough to keep the crèche.  Although Justice Burger and Brennan admit to the religious significance of the crèche, they also see it as primarily inculcating a secular sense of community and good will.  As the Brief to the Petitioners points out, “The religious origins in the holiday have evolved into a secular humanism and the nativity scene has evolved into a major element of the artistic component of the national festival.”[5]

Regarding the argument from history, Justice Burger writes, “Our history is pervaded by official acknowledgment of the role of religion in American life.”[6]

Those in favor of keeping the crèche also pointed out the religious nature of American history.  They pointed to the religious elements of the Continental Congress, the establishment of chaplaincy, presidential prayers, and the national practice of Thanksgiving and Christmas (i.e. the canon of “American Civil Religion”).

I have problems with the kind of thinking that tries to interpret Christian symbols in a secular fashion in order to keep them in public places.  The crèche is about the birth of Jesus, and Jesus is the central figure of Christianity, thus, the crèche is about Christianity.  Imagine trying to interpret Mohammed as non-Islamic, Moses as non-Israelite, and Buddha as non-Buddhist.  You would have all your work cut out for you.  I also have problems with thinking that the preservation of American tradition is enough to trump the governmental endorsement of religion.  It is interesting to note that this kind of thinking only wishes to preserve a certain kind of history, namely, a Judeo-Christian one.  What about preserving the history of slavery, misogyny, and the “real” Thanksgiving?  Should we enshrine confederate flags, McCarthy-era propaganda, and the Bellamy salute?

All of this legal maneuvering around religion is “blinking at reality.”  As Justice Brennan says, “But it blinks reality to claim, as the Court does, that by including such a distinctively religious object as the crèche in its Christmas display, Pawtucket has done no more than make use of a ‘traditional’ symbol of the holiday, and has thereby purged the crèche of its religious content and conferred only an “incidental and indirect” benefit on religion.”[7]

If the government is going to allow a Christian symbol on public land, it should either allow any and all symbols (religious and non-religious), or none.  Since culture always prefers and privileges certain beliefs over others, and since facilitating all symbols would be a logistical nightmare, I support there being no symbols on public land.

This photo was taken by Kjetil Ree, located at: http://commons.wikimedia.org/wiki/File:US_Supreme_Court.JPG

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[1] Leslie C. Griffin, Law and Religion: Cases and Materials (New York: Foundation Press, 2010), 408

[2] Ibid, 409

[3] Located at: http://supreme.justia.com/cases/federal/us/465/668/case.html

[4] Located at: http://supreme.justia.com/cases/federal/us/465/668/case.html

[5] Leslie C. Griffin, Law and Religion: Cases and Context (New York, N.Y.: Aspen Publishers, 2010), 180

[6] Located at: http://supreme.justia.com/cases/federal/us/465/668/case.html

[7] Located at: http://supreme.justia.com/cases/federal/us/465/668/case.html