Whose reasonableness counts?

• Author: Sachs, Benjamin I.
• Position: Establishment Clause - Case Note

In late 1995, the city of Syracuse, New York, erected a nativity scene in a downtown public park. The creche contained statues of Jesus, Mary, and Joseph, and shepherd, a donkey, a lamb, and an angel. Hanging across the creche was a banner that read "Gloria in Excelsis Deo," or "Glory to God in the Highest." The creche was placed beneath a fifty-five foot Christmas tree, and surrounded by sawhorse barricades reading "Roy A. Bernardi, Mayor." In Elewski v. City of Syracuse,(1) the Second Circuit held that this display did not violate the Establishment Clause of the First Amendment.

In assessing the Syracuse creche, the court employed the now-familiar Establishment Clause "endorsement test."(2) The court thus asked, "Would a reasonable observer of the display in its particular context perceive a message of governmental endorsement or sponsorship of religion?"(3) To answer the endorsement question, the court relied on the perceptions of a "reasonable observer" as defined by Justice O'Connor's concurrence in Capitol Square Review & Advisory Board v. Pinette.(4) The court concluded that such a reasonable observer would perceive the display, not as an endorsement of religion, but as "a celebration of the diversity of the holiday season . . . and [as a means] to preserve the economic viability of downtown retailers."(5) This Case Note argues that Justice O'Connor's formulation imports to the reasonable observer the perceptions of a member of the religious majority, or of an adherent of the religion on display, thereby rendering the endorsement test insufficiently sensitive to displays of majority religious symbols.(6)

I

The Establishment Clause endorsement test was first enunciated by Justice O'Connor in her concurring opinion in Lynch v. Donnelly.(7) In Lynch, Justice O'Connor wrote that government [e]ndorsement [of religion] 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."(8) The Court employed endorsement analysis in its next religious display case, County of Allegheny v. ACLU,(9) and indicated that endorsement would be judged according to the perceptions of a reasonable observer."(10)

In Pinette, Justice O'Connor refined the test by attempting to define the reasonable observer according to whose perceptions government endorsement of religion would be judged.(11) Justice O'Connor developed three themes: First, the reasonable observer is informed about the community's general practice with regard to religious displays and about the history of the forum at issue.(12) Second, the reasonable observer is less likely to perceive endorsement of religion in government displays of historically "ubiquitous" religious practices.(13) Third, the reasonable observer does not represent any actual person but is the hypothetical expression of a community ideal.(14)

II

The endorsement test is "perspective-dependent."(15) That is, because endorsement is determined according to the perceptions of a reasonable observer, the formulation of the observer determines when and whether endorsement occurs.(16) Crucially, religious symbols are perceived differently by adherents and nonadherents of the religion associated with the symbol on display.(17) It is, for example, more likely that a Jew, Muslim, or atheist would perceive endorsement in a publicly displayed creche than that a Christian would perceive endorsement from that same creche.(18) Thus, Justice O'Connor's definition of the reasonable observer too readily glosses over the characteristic of the reasonable observer that most directly influences the perception of endorsement. By relying on a "`personification of a community ideal of reasonable behavior,'"(19) the O'Connor formulation fails to resolve whether the observer will have the perspective of one in the religious majority or religious minority, and whether the observer will have the perspective of an adherent or a nonadherent of the religion on display. It is impossible to amalgamate, or average, these perspectives into one "hypothetical observer."(20)

Several components of the O'Connor formulation do, in fact, suggest that this reasonable observer will manifest the perspective of one in the religious majority, or at least the perspective of an adherent of the religion on display. By requiring that the reasonable observer perceive the "history and ubiquity"(21) of a religious symbol as negating its religious content,(22) the O'Connor formulation determines that government displays of majority, or at least common, religious symbols are less likely to be perceived reasonably as endorsement of religion. In County of Allegheny v. ACLU, Justice O'Connor concluded that the "longstanding existence" of certain religious practices in conjunction with their "nonsectarian nature" imply that such practices may be deemed "secular" and thus do not convey an endorsement of religion.(23) As Michael McConnell has pointed out...