This is not a creche.

• Author: Ahn, Laura

ACLU v. Schundler, 104 F.3d 1435 (3d Cir.), cert. denied, 117 S. Ct. 2434 (1997).

In December of 1995, small children admiring Jersey City's four-foot tall figures of Santa and Frosty might have been surprised to learn that the two were in fact the indispensable guardians of the menorah and creche nearby. Had either of the figures left the scene for a single day, the entire display would have been dismantled by the force of federal law.

The previous year, the American Civil Liberties Union of New Jersey and four citizens of Jersey City had sought declaratory and injunctive relief against a city-sponsored display of a menorah and creche on the City Hall Plaza.(1) The district court granted a permanent injunction against the display, finding that it violated the establishment clauses of the U.S. and New Jersey constitutions.(2)

Lacking neither chutzpah nor Christmas spirit, the undaunted city reinstalled the menorah and creche in front of city hall the next winter. This time, however, the city added a red wooden sled and figures of Santa Claus and Frosty the Snowman to the display.(3) In response to the ACLU's predictable challenge, the district court concluded that the additions "sufficiently demystified the [holy].... sufficiently desanctified sacred symbols, and ... sufficiently deconsecrated the sacred to escape the confines of the injunctive order in this case."(4) The court's modified injunction required Jersey City to maintain the additional secular figures and to replace them within twenty-four hours if they were stolen or destroyed.(5) On appeal, the Court of Appeals for the Third Circuit vacated the holding that the 1995 display did not violate the U.S. Constitution and remanded the case for further consideration of the modified display in accordance with the standards outlined in the majority opinion.(6)

I

The disposition of holiday display cases under the Establishment Clause is controlled by County of Allegheny v. ACLU.(7) Under Allegheny, a display is unconstitutional if, in its "`particular physical setting[],' [it] has the effect of endorsing or disapproving religious beliefs."(8) In his opinion for the Allegheny majority, Justice Blackmun undertook a fact-specific, contextual analysis. His evaluation of the "context" of Allegheny County's display entailed an inquiry into a variety of factors--the city's other holiday festivities, the location and arrangement of the display, the availability of secular alternative symbols,(9) and the message of an explanatory sign--in addition to the display's physical setting. In his analysis, none of these factors was alone dispositive. The standard was that of the oft-invoked "`reasonable observer"(10) or, more precisely, the "`reasonable non-adherent.'"(11)

In Allegheny, the Supreme Court outlined a methodology and a standard for lower courts to follow, rather than a bright-line rule of decisionmaking.(12) But the plentiful scholarship criticizing Allegheny and calling for a clear test indicates that there is significant academic pressure for the creation of a holiday display rule,(13) and cases such as Schundler reveal judicial pressure in the same direction.(14) The methodology of the Third Circuit reveals a subtle but inexorable formalization of the decisionmaking process, as Schundler seeks to replace the subjectivity of case-by-case adjudication with a jurisprudence of strict rules.

II

The Schundler court drew generalized rules from the fact-specific precedents of Lynch v. Donnelly,(15) Allegheny, and Capitol Square Review & Advisory Board v. Pinette.(16) For example, after observing that the Allegheny Court found a privately owned creche on the staircase of the county courthouse to constitute a violation of the Establishment Clause, the Third Circuit determined that the government may not place a creche on government property.(17) The court further stated that the government may not use public funds to erect and maintain a religious display because such expenditures, like religious symbols on government property, "directly implicate[] the Establishment Clause."(18) These two rules confuse the law by equating an implication with a violation.(19) The Third Circuit ruled, in effect, that the sponsorship and location of a display cannot pose potential Establishment Clause problems without necessarily violating constitutional constraints The court thereby collapsed the space between inquiry and conclusion that contextual analysis had occupied in Allegheny.

The functional definition of "context" lies at the heart of the methodological difference between Allegheny and Schundler. The Third Circuit dramatically curtailed the scope of the challenged display's context, ruling first that "context" could not include Jersey City's other celebrations throughout the year.(20) The court rejected the city's "time lapse photograph" argument, which presumed that a reasonable observer would be...