Religious Symbols in Public Places

• Author: Norman Redlich
• Pages: 2196-2197

Page 2196

In 1984 the Supreme Court, in LYNCH V. DONNELLY, rejected a constitutional challenge to the display of a publicly financed nativity scene?a crèche?in a private park in Pawtucket, Rhode Island. Chief Justice WARREN E. BURGER'S decision for a 5?4 majority evoked deep resentment in many quarters, particularly among non-Christians who opposed the use of public funds to depict an event?the birth of Jesus to the Virgin Mary?that is a central tenet of Christianity. Moreover, the decision appeared to be a sharp departure from the Court's establishment clause precedents, particularly LEMON V. KURTZMAN (1971), in which the Court set forth the three "tests" that the ESTABLISHMENT CLAUSE imposes on government actions involving religion: "The statute must have a secular legislative purpose ? its principal or primary effect must be one that neither advances nor inhibits religion ? [and] the statute must not foster "an excessive government entanglement with religion."

Conceding that the crèche was a religious symbol, the majority opinion nevertheless perceived the Pawtucket display as essentially a secular recognition of the historical origins of the Christmas season and therefore a permissible accommodation to religion. The Chief Justice's opinion observed that the display contained a Santa Claus, sleigh, candy-striped poles, and some reindeer. Critics chided the Court for creating a "two-reindeer" rule and, more seriously, for demonstrating extreme insensitivity to non-Christians.

As lower courts and local governments addressed the questions that Lynch v. Donnelly left unanswered, they were guided in large part by Justice SANDRA DAY O'CONNOR'S concurring opinion in which she reformulated the three-part LEMON TEST by emphasizing that the "purpose" and "effect" prongs of the test are designed to prevent government practices that endorse or disapprove of religion. "Endorsement," she wrote, "sends a message to adherents that they are outsiders, not full members of the political community." Based on this interpretation of Lemon, Justice O'Connor concluded that the purpose of the crèche was not to endorse Christianity but to celebrate a public holiday of secular significance, notwithstanding its religious aspect. As for the effect of the crèche, its "overall holiday setting ? negates any message of endorsement" of the religious aspect of the display. Justice O'Connor's "endorsement" test provided a more focused approach than the...