COUNTY OF ALLEGHENY, ET AL., PETITIONERS V. AMERICAN CIVIL
LIBERTIES UNION, ET AL.

   Nos. 87-2050, 88-90 and 88-96

   In the Supreme Court of the United States

   October Term, 1988

   On Writ of Certiorari From the United States Court of Appeals for
the Third Circuit

   Brief for the United States as Amicus Curiae Supporting Petitioner

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of Argument
   Argument:
      The Establishment Clause of the First Amendment does not
      prohibit a local community from including a nativity scene and
      a menorah in its annual holiday display
   Conclusion

                          QUESTION PRESENTED

   Whether a local community violates the Establishment Clause of the
First Amendment when it includes a nativity scene and a menorah in an
annual holiday display located on public property.

                     INTEREST OF THE UNITED STATES

   The United States participates in, or permits on public land,
various displays and celebrations relating to the seasons of Christmas
and Chanukah.  For example, the National Park Service includes a
privately-owned nativity scene in its annual government-sponsored
Christmas Pageant for Peace, which takes place on public park land
(the Ellipse) immediately south of the White House.  For a number of
years, the Park Service also has granted a demonstration permit to a
private group to erect and maintain a menorah on public park land
during the holiday season.  /1/ These and other established practices
are called into question by the judgment below.

   More generally, from the earliest days of the Republic to the
present, the federal government has felt free to acknowledge and
recognize that religion is part of our heritage.  The United States
thus has a substantial interest in the broader question raised by this
case, which is whether the Constitution requires us rigidly to exclude
from our public ceremonies and celebrations and from our public lands
all acknowledgment of the religious elements in our national
traditions.  The United States has previously participated as amicus
curiae in Board of Trustees of the Village of Scarsdale v. McCreary,
471 U.S. 83 (1985);  Lynch v. Donnelly, 465 U.S. 668 (1984);  Marsh v.
Chambers, 463 U.S. 783 (1983), and other cases raising this question
in a variety of contexts.

                               STATEMENT

   1. For a number of years during the Christmas season, the City of
Pittsburgh has placed a large Christmas tree, decorated with lights
and ornaments, on the front steps of the City-County Building in
downtown Pittsburgh.  Since 1982, at the time of the Jewish
celebration of Chanukah, the City has erected next to the Christmas
tree a privately-owned menorah.  In front of the Christmas tree is a
large sign bearing the mayor's name that reads:

                           SALUTE TO LIBERTY

         DURING THIS HOLIDAY SEASON, THE CITY OF PITTSBURGH SALUTES
      LIBERTY.  LET THESE FESTIVE LIGHTS REMINDS US THAT WE ARE THE
      KEEPERS OF THE FLAME OF LIBERTY AND OUR LEGACY OF FREEDOM.

   Also included in this seasonal display are a sign advertising a
charity fund drive, a sign advertising a tropical flower display at
the City's Conservatory, and traditional seasonal decorations in the
doorways leading to the interior of the City-County Building.  All the
elements of the display -- the Christmas tree, the signs, the menorah,
and the decorations -- are installed by city employees.  Pet. App.
4a-5a.  /2/

   One block away from the City-County Building stands the Allegheny
County Courthouse.  Since 1981, the county has permitted for
approximately six weeks each year the display of a nativity scene
enclosed by a fence on the grand staircase of the first floor of the
courthouse.  The creche is owned, erected, arranged, and disassembled
by a private organization, and a sign in front of the creche indicates
its donor.  The county, however, stores the creche in the basement of
the courthouse and supplies a dolly and minimal aid to transport it to
and from the courthouse basement.  The County Bureau of Cultural
Programs decorates the area with red and white poinsettia plants,
evergreen trees with red bows, and Christmas wreaths.  Other seasonal
decorations are displayed throughout the courthouse building.  Pet.
App. 3a-4a.

   The first floor of the courthouse is used throughout the year for
art displays and other civic and cultural events and programs.  During
the weeks prior to Christmas, the county sponsors Christmas carol
programs.  The chorale groups, mostly high school students, stand on
the grand staircase behind the nativity scene.  They sing popular
songs and both religious and secular Christmas carols.  The caroling
is broadcast by loudspeakers to the public in the courthouse.  The
program is annually dedicated to the universal themes of world peace
and brotherhood and to the memory of persons missing in action in the
Vietnam War.  Pet. App. 3a-4a.

   2. Respondents brought suit on December 10, 1986, against the City
of Pittsburgh and Allegheny County claiming that the inclusion of the
menorah and the nativity scene in their annual holiday celebration
violated the Establishment Clause of the First Amendment.  The
district court, following an evidentiary hearing, denied respondents'
motions for injunctive and declaratory relief (Pet. App. 34a-40a).
Applying the three-pronged test of Lemon v. Kurtzman, 403 U.S. 602
(1971), the court concluded (Pet. App. 40a) that the displays had a
secular purpose, that their effect was not to advance or inhibit
religion, and that they did not create an excessive entanglement of
government with religion.

   The district court found that the intention of the City and county
was merely "to celebrate the holiday season" and not "to affect
anyone's religion" (Pet. App. 36a).  The court further found, relying
on this Court's decision in Lynch v. Donnelly, 465 U.S. 668 (1984),
that the use of the creche and the menorah in the context of the
holiday season did not advance religion in any significant way.  "In
the case of the county," the court noted (Pet. App. 40a), "the creche
was but part of the holiday decoration of the stairwell and a
foreground for the high school choirs which entertained each day at
noon.  In the case of the city, if there was any religious
significance to the menorah, /3/ it was but an insignificant part of
another holiday display." Finally, the court found (ibid.) that the
display "did not create an excessive entanglement of government with
religion" and that there was no evidence "that the displays have
caused political division." The court noted (id. at 38a-39a) that
"(v)ery little, if any, public funds" are expended on the creche and
that the expense to the city of erecting the menorah is minimal.

   3. A divided court of appeals reversed (Pet. App. 1a-33a).  The
court acknowledged that Lynch v. Donnelly, supra, had to be "the
starting point of our analysis" (Pet. App. 7a), but noted that this
Court was "sharply divided" in that case and that "the opinion (for
the Court) was tied so closely to the facts involved" that it was
"unable to put to rest issues involving use of religious decorations
at the Christmas season" (id. at 8a-9a).  Thus, after describing this
Court's holding in Lynch, the court of appeals proceeded to make its
own application of the three-prong test of Lemon v. Kurtzman to the
facts of this case.

   The court of appeals focused its discussion on the second prong of
the Lemon test, noting (Pet. App. 13a) that "a public entity usually
is able to articulate some secular purpose for a display (first prong)
and the mere placement and storage of a display will involve little
entanglement (third prong) of government and religion." With respect
to the second prong, the court explained (id. at 13a-14a) that a court
should consider six separate variables in determining whether a
display has the effect of advancing or endorsing religion:

         (1) the location of the display;  (2) whether the display is
      part of a larger configuration including non-religious items;
      (3) the religious intensity of the display;  (4) whether the
      display is shown in connection with a general secular holiday;
      (5) the degree of public participation in the ownership and
      maintenance of the display;  and (6) the existence of
      disclaimers of public sponsorship of the display.

   Based on its consideration of these factors, the court concluded
(Pet. App. 14a) that "by permitting the creche and the menorah to be
placed at the buildings the city and county have tacitly endorsed
Christianity and Judaism and have therefore acted to advance
religion." The court noted (ibid.) that "(e)ach display was located at
or in a public building devoted to core functions of government and
each was placed at a prominent site at the public building where
visitors would see it." Furthermore, the court stated (ibid.),
"neither the creche nor the menorah can reasonably be deemed to have
been subsumed by a larger display of non-religious items.  In
addition, both the creche and the menorah are associated with
religious holidays and would be viewed as pertaining to a particular
religion." Indeed, the court stressed (ibid.), "the menorah, unlike
the creche, is not associated with a holiday with secular aspects."
/4/ Finally, the court noted (ibid.), "there is public participation,
albeit minimal, in both the storage and placement of the displays."
/5/

   Judge Weis dissented (Pet. App. 16a-33a).  He noted that Lynch v.
Donnelly is not only "the starting point of our analysis," but "also
ends our analysis" (id. at 23a).  Judge Weis explained (id. at 24a)
that the placement of the creche in the county courthouse did not
distinguish this case from Lynch in which the creche was also
displayed "under municipal auspices and encouragement." Judge Weis
also rejected the majority's emphasis on the paucity of secular
decorations displayed along with the creche.  He concluded that in
Lynch it was "the December holiday setting" -- not the presence of
"plastic Santa Clauses or reindeer" -- that negated any message of
endorsement of the religious content of the display (id. at 28a-30a).
In any event, Judge Weis noted (id. at 29a), this focus on context,
"even if valid, is irrelevant here.  The Pittsburgh creche was
surrounded by traditional Christmas symbols, including wreaths,
evergreen trees, and poinsettia plants, and served as a thematic
backdrop for the County's traditional holiday choral program." With
respect to the menorah, Judge Weis stated (id. at 32a) that
"(i)ncluding a reference to Chanukah did no more than broaden the
commemoration of the holiday season and stress the notion of sharing
in its joy.  By marking the Judeo-Christian aspects of the holiday
season, the local governments appropriately called attention to the
great pluralism that is the hallmark of religious tolerance in this
country."

                          SUMMARY OF ARGUMENT

   In Lynch v. Donnelly, this Court held that it did not violate the
Establishment Clause for the City of Pawtucket, Rhode Island, to
include a government-owned creche in the traditional holiday display
that it erected each year in a private park in the heart of the town's
shopping district.  Pawtucket's display of the creche, the Court
concluded, served the legitimate secular purposes of celebrating a
national holiday through the use of its traditional symbols and
depicting the historical origins of that holiday.  The Court
acknowledged that a creche has religious significance, but concluded
that the principal effect of Pawtucket's display was to engender a
friendly community spirit of goodwill in keeping with the holiday
season and that any benefit to religion from the display was merely
indirect, remote and incidental.

   The court of appeals purported to distinguish Lynch in three
respects.  First, the court emphasized that the nativity scene and the
menorah at issue here would be displayed on public property, in
buildings devoted to the business of government, while the creche in
Lynch was on private property.  Second, the court concluded that the
creche and menorah at issue here were not subsumed by a large display
of non-religious items, while the Pawtucket creche was part of a
Christmas display including numerous wholly secular symbols of the
holiday.  Finally, the court held that the menorah was subject to a
special constitutional disability because, unlike the creche, it is
not associated with a holiday with secular aspects.

   None of these distinctions will stand scrutiny.  The Court in Lynch
did not rely in any fashion on the happenstance that Pawtucket's
Christmas display was on private land.  The Court treated the case,
quite properly, as one in which the government was responsible for,
and identified with, the government-owned display.  The purpose and
effect of the display -- to celebrate a holiday with the traditional
symbols of that holiday and to engender a community spirit of goodwill
in keeping with the season -- are the same regardless of location.  If
those government-sponsored purposes and effects are legitimate in a
private park in the heart of the shopping district, they do not become
illegitimate when shifted down the street to the steps or gallery of a
public building.  The creche and menorah are passive symbols that do
not coerce the belief or compel the obedience of visitors with
government business.  Nor is any special message of endorsement of
religion communicated by the location of the displays.  Whatever their
precise physical location, it is the overall holiday setting that
changes what viewers may fairly understand to be the purpose of the
displays and negates any message of endorsement of the religious
content of their constituent symbols.

   Since the use of the creche as a symbol of the holiday does not
constitute a government endorsement of the religious content of that
symbol, the government is not required to surround it with candy
canes, reindeer, or other purely secular symbols in order to avoid an
Establishment Clause violation.  In any event, the creche and the
menorah here are each part of larger holiday displays that include
numerous purely secular decorations as well as express statements of
secular purpose.  As in Lynch, the displays at issue here suggest no
endorsement of either Christianity or Judaism.

   As to the court of appeals' conclusion that the menorah is not
associated with a holiday having secular aspects, there is no dispute
that a menorah is part of the Jewish celebration of Chanukah, which
falls each year within the Christmas holiday season.  Increasingly,
private and governmental entities -- from public schools to television
stations -- are accommodating and recognizing celebrations of
Christmas and Chanukah together as part of a general holiday season.
An objective observer would thus view Pittsburgh's decision to erect a
menorah next to the Christmas tree on the steps of the City-County
Building not as endorsing Judaism, but merely as recognizing another
dimension of the holiday season.  Including a menorah in a holiday
display broadens the holiday message from one focused on Christmas
alone and serves further to emphasize the absence of any sectarian
endorsement.

   The court of appeals, in striving to limit Lynch narrowly to its
facts, thus missed the central message of that decision as well as the
harmony of that message with this Court's Establishment Clause
jurisprudence.  The Court in Lynch recognized that accommodation and
acknowledgment of religion do not equal endorsement of religion.
Religion is inextricably imbedded in our national culture and our
official holidays and ceremonies, and it was never the purpose of the
Establishment Clause to secularize our public life so rigidly that we
cannot continue to mark our public holidays in a manner that includes
traditional acknowledgments of their religious character.

                               ARGUMENT

   THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT DOES NOT PROHIBIT A
LOCAL COMMUNITY FROM INCLUDING A NATIVITY SCENE AND A MENORAH IN ITS
ANNUAL HOLIDAY DISPLAY

   The decision of the court of appeals cannot be reconciled with this
Court's recent decision in Lynch v. Donnelly.  The Court in Lynch
recognized, as it has always recognized, that accommodation and
acknowledgment of religion do not equal endorsement of religion.
Religion is inextricably imbedded in our national culture and our
official holidays and ceremonies, and it was never the purpose of the
Establishment Clause to secularize our public life so rigidly that we
cannot continue to mark our public holidays in a manner that includes
traditional acknowledgments of their religious character.

   1. In Lynch, this Court held that it did not violate the
Establishment Clause for the City of Pawtucket, Rhode Island, to
include a government-owned creche in the traditional Christmas display
that it erected each year in a private park in the heart of the town's
shopping district.  The display at issue in that case was "essentially
like those to be found in hundreds of towns or cities across the
Nation -- often on public grounds -- during the Christmas season" (465
U.S. at 671).  It included, among other items, a Santa Claus house,
reindeer, candy-striped poles, a Christmas tree, colored lights,
cut-out figures, a large banner reading "Seasons Greetings," and a
creche.

   The Court recognized (465 U.S. at 674) 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" /6/ and
stressed (id. at 678) that "an absolutist approach in applying the
Establishment Clause is simplistic and has been uniformly rejected by
this Court." While thus emphasizing (id. at 679) its "unwillingness to
be confined to any single test or criterion in this sensitive area,"
the Court nonetheless "found it useful" to apply the three-part test
of Lemon v. Kurtzman, supra.  The Court accordingly inquired whether
the City's display of the nativity scene had a legitimate secular
purpose, whether its principal or primary effect was either to advance
or to inhibit religion, and whether it created an excessive
entanglement of government with religion.

   "Pawtucket's display of the creche," the Court noted (465 U.S. at
681), "is sponsored by the city to celebrate the Holiday and to depict
the origins of that Holiday.  These are legitimate secular purposes."
/7/ See id. at 691 (O'Connor, J., concurring) ("The evident purpose of
including the creche in the larger display was not promotion of the
religious content of the creche but celebration of the public holiday
through its traditional symbols.  Celebration of public holidays,
which have cultural significance even if they also have religious
aspects, is a legitimate secular purpose.").  The Court also agreed
with both lower courts that no institutional entanglement was
occasioned by the display (id. at 684).  /8/

   With respect to the second prong of the Lemon test, the Court
concluded that, "notwithstanding the religious significance of the
creche" (465 U.S. at 687), the primary effect of displaying the creche
was not "to confer a substantial and impermissible benefit on religion
in general and on the Christian faith in particular" (id. at 681).
Focusing on "the creche in the context of the Christmas season" (id.
at 679), the Court noted (id. at 683) that "our precedents plainly
contemplate that on occasion some advancement of religion will result
from governmental action," /9/ and concluded (ibid.) that "whatever
benefit there is (from the display) to one faith or religion or to all
religions, is indirect, remote, and incidental." "Even the
traditional, purely secular displays extant at Christmas, with or
without a creche," the Court noted (id. at 685), "would inevitably
recall the religious nature of the Holiday." But the principal effect
of such displays is to "engender() a friendly community spirit of
goodwill in keeping with the season" (ibid.).

   In light of our tradition of "accommodation of all faiths and all
forms of religious expression" (465 U.S. at 677), the Court stated
(id. at 686) 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 2 centuries, would so 'taint' the city's exhibit as
to render it violative of the Establishment Clause." The Court
accordingly concluded (ibid.) that "(t)o forbid the use of this one
passive symbol -- the creche -- at the very time people are taking
note of the season with Christmas hymns and carols in public schools
and other public places, and while the Congress and legislatures open
sessions with prayers by paid chaplains, would be a stilted
overreaction contrary to our history and to our holdings."

   2. The court of appeals focused its own inquiry exclusively on the
second prong of the Lemon test.  /10/ In reaching its conclusion that
"the city and county have tacitly endorsed Christianity and Judaism
and have therefore acted to advance religion" (Pet. App. 14a), the
court purported to distinguish Lynch v. Donnelly in three respects.
None of these distinctions, however, will stand scrutiny.

   a. First, the court of appeals emphasized (Pet. App. 10a-14a) that
the nativity scene and the menorah at issue here would be displayed on
public property, in buildings devoted to the business of government,
while the creche in Lynch was on private property.  See also American
Jewish Congress v. City of Chicago, 827 F.2d 120, 126 (7th Cir. 1987)
("the display in this case was located within a government building --
a setting where the presence of government is pervasive and
inescapable");  ACLU v. City of Birmingham, 791 F.2d 1561 (6th Cir.),
cert. denied, 479 U.S. 939 (1986) (enjoining display of creche on lawn
in front of city hall).  The Court in Lynch, however, did not rely in
any fashion on the happenstance that Pawtucket's Christmas display was
on private land.  /11/ The Court treated the case, quite properly, as
one in which the government was responsible for, and identified with,
the government-owned display.  465 U.S. at 680-681;  id. at 690
(O'Connor, J., concurring).  Moreover, the Court expressly analogized
the case to the other situations in which acknowledgments of religion
take place on public property.  465 U.S. at 671, 674, 676-677.

   Pawtucket's display was in a centrally located park, facing the
busiest commercial district, 300 feet from City Hall.  Donnelly v.
Lynch, 525 F. Supp. 1150, 1154-1156 (D.R.I. 1981).  "The display
doubtless got more attention there than it would have in Pawtucket's
City Hall, for which it was too big anyway." American Jewish Congress
v. City of Chicago, 827 F.2d at 131 (Easterbrook, J., dissenting).
Allegheny County and the City of Pittsburgh are similarly entitled to
have their Holiday displays in a central and convenient location.
Undoubtedly, Allegheny County could have located its chorale program
and Christmas display in an empty lot somewhere, but in December in
Pittsburgh few might brave the elements to enjoy it.

   The secular purposes of each display -- "to celebrate the Holiday
and to depict the origins of that Holiday" (465 U.S. at 681) -- and
the secular effects of those displays -- "engender(ing) a friendly
community spirit of goodwill in keeping with the season" (id. at 685)
-- are the same regardless of location.  And if those
government-sponsored purposes and effects are legitimate in a private
park in the heart of the shopping district, they do not become
illegitimate when shifted 300 feet to the steps or gallery of a public
building.  See McCreary v. Stone, 739 F.2d 716, 729 (2d Cir. 1984)
("We fail to find substantiality in this asserted private/public land
distinction"), aff'd by an equally divided Court, 471 U.S. 83 (1985).

   Furthermore, no special constitutional infirmities attend the
location of these displays "at or in a public building devoted to core
functions of government" (Pet. App. 14a).  The creche and the menorah
are merely "passive symbol(s)" (Lynch, 465 U.S. at 686) that do not in
any respect coerce the belief or compel the obedience of visitors with
government business.  Nor is any special message of endorsement of
religion communicated by the location of the displays at or in
government buildings.  Whatever the precise physical surroundings,
"the overall holiday setting changes what viewers may fairly
understand to be the purpose of the display -- as a typical museum
setting, though not neutralizing the religious content of a religious
painting, negates any message of endorsement of that content" (Lynch,
465 U.S. at 692 (O'Connor, J., concurring)).  The display of the
creche and the menorah both "serve() a secular purpose -- celebration
of a public holiday with traditional symbols" (id. at 693).  Whether
the displays are in a city hall or a city park, the creche and the
menorah "cannot fairly be understood to convey a message of government
endorsement of religion" (ibid.).

   b. The court of appeals also attempted to distinguish Lynch on the
ground that the creche and menorah at issue here could not "reasonably
be deemed to have been subsumed by a larger display of non-religious
items, while the Pawtucket creche was part of a Christmas display
including, inter alia, a Santa Claus house, reindeer pulling Santa's
sleigh, a cut-out clown, a Christmas tree, and a talking wishing well
(Pet. App. 14a).  See also ACLU v. City of Birmingham, 791 F.2d at
1566 (forbidding display of "unadorned creche" not "surrounded by a
multitude of secular symbols of Christmas").  But, although this Court
in Lynch referred to the secular decorations surrounding the creche in
that case, the Court made it clear that the relevant context for First
Amendment purposes was the "Christmas Holiday season" (465 U.S. at
680), and that within that context it is permissible for the
government to acknowledge the historical and religious origins of the
season (id. at 686).  See McCreary v. Stone, 739 F.2d at 729 ("The
Supreme Court did not decide the Pawtucket case based upon the
physical context within which the display of the creche was situated;
rather, the Court consistently referred to 'the creche in the context
of the Christmas season,' * * * or the 'Christmas Holiday season.'").

   The court of appeals trivialized Lynch by claiming that the absence
of a cut-out clown, reindeer, or talking wishing well must dictate a
different result.  Important constitutional issues should not turn on
marginal differences in holiday displays.  "It would be appalling to
conduct litigation under the Establishment Clause as if it were a
trademark case, with experts testifying about whether one display is
really like another, and witnesses testifying that they were offended
-- but would have been less so were the creche five feet closer to the
jumbo candy cane." American Jewish Congress v. City of Chicago, 827
F.2d at 130 (Easterbrook, J., dissenting).  See also ACLU v. City of
Birmingham, 791 F.2d at 1569 (Nelson, J., dissenting) ("I question
whether it is appropriate for the federal courts to tell the towns and
villages of America how much paganism they need to put in their
Christmas decorations");  Pet. App. 30a (Weis, J., dissenting).

   The essence of the Court's decision in Lynch was that displaying a
traditional symbol of a holiday -- even if religious in origin and
meaning -- does not amount to an endorsement of the religious faith
associated with the symbol.  465 U.S. at 683;  id. at 692 (O'Connor,
J., concurring).  Pawtucket may display a creche without thereby
endorsing Christianity because "the overall holiday setting changes
what viewers may fairly understand to be the purpose of the display,"
and in the context of that setting, the use of a traditional holiday
symbol such as a creche "is not understood to endorse the religious
content of the holiday, just as government celebration of Thanksgiving
is not so understood" (ibid.).  Since use of the creche as a symbol of
the Holiday does not constitute a government endorsement of the
religious content of that symbol, the government and the courts are
not required to engage in reindeer counting to ensure that there are
enough purely secular symbols accompanying the creche.

   In any event, even if such a contextual inquiry were warranted, it
is clear that "an objective observer" (Wallace v. Jaffree, 472 U.S. at
76 (O'Connor, J., concurring)) would not view the displays at issue
here as an endorsement of either Christianity or Judaism.  "(T)he
creche was but part of the holiday decoration of the stairwell and a
foreground for the high school choirs which entertained each day at
noon." Pet. App. 40a.  It "merely contributes as part of the overall
Christmas scene" (id. at 35a), along with red and white poinsettia
plants, evergreen trees with red and white bows, Christmas wreaths,
and other seasonal decorations throughout the building (id. at 3a).
Moreover, the nativity scene has a sign in front of it noting that it
was donated by a private organization (ibid.) thus further distancing
Allegheny County from any endorsement of the specific religious
content of this traditional holiday symbol.  See Allen v. Morton, 495
F.2d 65, 67-68 (D.C. Cir. 1973) (per curiam).  /12/ The menorah,
located on the steps of the City-County Building, is also part of a
larger holiday display that includes a large, lighted Christmas tree,
signs advertising seasonal events, and traditional decorations in the
doorways leading to the interior of the City-County Building.  Pet.
App. 4a-5a.  The secular purpose of both the lighted menorah and the
lighted Christmas tree is brought home to the viewer by a large sign
exhorting passers by to "Let these festive lights remind us that we
are the keepers of the flame of liberty and our legacy of freedom"
(ibid.).

   c. Finally, the court of appeals concluded that the menorah was
subject to a special constitutional disability because "the menorah,
unlike the creche, is not associated with a holiday with secular
aspects" (Pet. App. 14a).  That is simply not true.  The menorah is
part of the Jewish celebration of Chanukah, which falls each year
within the Christmas holiday season.  Increasingly, private and
governmental entities -- from public schools to television stations --
are accommodating and recognizing celebrations of Christmas and
Chanukah together as part of a general public holiday season.  As in
Lynch, therefore, "(a)lthough the religious and indeed sectarian
significance" of the menorah" is not neutralized by the setting, the
overall holiday setting changes what viewers may fairly understand to
be the purpose of the display" (465 U.S. at 692 (O'Connor, J.,
concurring)).

   We believe that an objective observer would view Pittsburgh's
decision to erect a menorah next to the Christmas tree on the steps of
the City-County Building not as endorsing Judaism, but merely as
recognizing another aspect of the holiday celebration.  Thus, the mere
fact that "the menorah is associated with Chanukah, a religious
holiday" (Pet. App. 15a (emphasis added)), is not a sufficient reason
to banish it from public celebrations of the holiday season.  To the
contrary, including a menorah in a holiday display merely broadens the
holiday message from one focused on Christmas alone and serves further
to emphasize the absence of any sectarian endorsement.  /13/
Furthermore, the district court found (Pet. App. 39a) that "(t)he
Chanukah menorah has no particular religious significance when placed
in a public location beyond signifying a 'Light to the World' somewhat
like the Christmas message 'Peace on the Earth, Goodwill to Men.'"
Display of the menorah, therefore, "cannot fairly be understood to
convey a message of government endorsement of religion." 465 U.S. at
693 (O'Connor, J., concurring).

   3. Jefferson's celebrated reference to a "wall of separation
between church and State" may suggest that all governmental
acknowledgments of religion must be condemned.  But "(i)t has never
been thought either possible or desirable to enforce a regime of total
separation." Committee for Public Education & Religious Liberty v.
Nyquist, 413 U.S. 756, 760 (1973).  Such "total separation" would
clearly require an elaborate effort to reshape our practices and
rhetoric, one that would betoken "a brooding and pervasive devotion to
the secular and a passive, or even active, hostility to the
religious." Abington School Dist. v. Schempp, 374 U.S. 203, 306 (1963)
(Goldberg, J., concurring).  But hostility toward religion is as
prohibited by the Constitution as is government establishment of
religion.  See, e.g., Lynch, 465 U.S. at 673;  Zorach v. Clauson, 343
U.S. at 314;  McCollum v. Board of Education, 333 U.S. at 211-212.

   The court of appeals, in striving to limit Lynch narrowly to its
facts, missed the central message of that decision and the harmony of
that message with this Court's Establishment Clause jurisprudence.
The Court in Lynch recognized, as it has always recognized, that
accommodation and acknowledgment of religion do not equal endorsement
of religion.  Our nation is not secular, but pluralistic, and there is
nothing wrong with the government attempting to recognize and
commemorate the importance of religion in America's historical
traditions and cultural heritage.  Lynch, 465 U.S. at 678.  Such
recognition constitutes "simply a tolerable acknowledgment of beliefs
widely held among the people of this country." Marsh v. Chambers, 463
U.S. at 792.

   There are "countless * * * illustrations of the Government's
acknowledgment of our religious heritage and governmental sponsorship
of graphic manifestations of that heritage." Lynch, 465 U.S. at 677.
The creation and maintenance of legislative chaplaincies, and the
frequent invocation of God's blessing on all of the Nation's public
and ceremonial occasions (see n.6, supra), demonstrate the
untenability of any suggestion that the government is not free to
acknowledge and help commemorate an occasion such as Christmas or
Chanukah or that, in doing so, it must somehow contrive to conceal and
ignore the religious aspects of these holidays.  To state that the
government may not prefer one religion over another does not mean that
the government must pretend that certain holidays have no specific
meanings to different religions.

   What is forbidden under the Establishment Clause are those
government practices that coerce religious orthodoxy (e.g., Stone v.
Graham, 449 U.S. 39, 42 (1980)) or that involve the government
directly in religious exercises (e.g., Abington School Dist. v.
Schempp, 373 U.S. at 223-224).  For the government to participate in
holiday celebrations that have religious as well as secular elements,
and in that context to acknowledge our religious heritage, is neither
a "religious exercise" nor an interference with the rights of
conscience of nonbelievers.  /14/ Religion is inextricably imbedded in
our national culture and our official holidays and ceremonies.  It
pervades our public as well as our private lives because of our
history and because recognition of this aspect of our history is of
deep concern to many of our people.  To ignore this heritage and this
deeply felt concern by eradicating all evidence of its influence would
be to substitute "callous indifference" for "benevolent neutrality."
Zorach v. Clauson, 343 U.S. at 314;  Walz v. Tax Comm'n, 397 U.S. at
669.

   In grappling with the difficult and sensitive constitutional
questions in this area, the courts must demonstrate "the ability and
willingness to distinguish between real threat and mere shadow."
Abington School Dist. v. Schempp, 374 U.S. at 308 (Goldberg, J.,
concurring).  It is simply not plausible to suggest that the display
of a nativity scene or a menorah for several weeks during the holiday
season is "but the 'foot in the door' or the 'nose of the camel in the
tent' leading to an established church." Walz, 397 U.S. at 678.  If
government celebrations of our religious heritage "can be seen as the
first step toward 'establishment' of religion, * * * the second step
has been long in coming.  Any move that realistically 'establishes' a
church or tends to do so can be dealt with 'while this Court sits'"
(ibid.).  In the meantime, "(a)ny notion that these symbols pose a
real danger of establishment of a state church is farfetched indeed."
Lynch, 465 U.S. at 686.

                              CONCLUSION

   The decision of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   DONALD B. AYER

      Deputy Solicitor General

   MICHAEL K. KELLOGG

      Assistant to the Solicitor General

   NOVEMBER 1988

   /1/ For approximately eight years prior to 1986, the menorah was
erected in Lafayette Park.  In 1986, the National Park Service issued
regulations prohibiting structures in Lafayette Park (36 C.F.R.
7.95(5)(x)), and the menorah is now erected in the southwest quadrant
of the Ellipse.

   /2/ "Pet. App." refers to the appendix to the petition in No.
   88-90.

   /3/ The district court found (Pet. App. 39a) that "(t)he Chanukah
menorah has no particular religious significance when placed in a
public location beyond signifying a 'Light to the World' somewhat like
the Christmas message 'Peace on Earth, Goodwill to Men.'"

   /4/ The court of appeals, responding to the district court's
finding (Pet. App. 39a) that the menorah "has no particular religious
significance," stated (id. at 15a) that "regardless of the lack of
religious significance of a menorah its sectarian character is clear
and thus even though it may not be regarded as a sacred object its
placement was an endorsement of religion."

   /5/ The court of appeals acknowledged (Pet. App. 15a) that "there
is a sign near the creche indicating that the display is a donation of
the Holy Name Society," but stated that that factor alone "cannot
possibly outweigh the considerations which lead us to find that
placement of the creche violated the second prong of the Lemon test."

   /6/ The Court cited (465 U.S. at 674-677), among "countless"
examples of this official acknowledgment, the employment of
congressional chaplains to offer daily prayers in Congress, the
celebration of Thanksgiving as a national holiday on which to give
thanks for the bounties of nature as gifts from God, the statutorily
prescribed national motto "In God We Trust," the inclusion in the
Pledge of Allegiance of the language "One nation under God," the
declaration each year of a National Day of Prayer, and the
commemoration of such occasions as Jewish Heritage Week and the Jewish
High Holy Days.

   /7/ The Court noted that it "has invalidated legislation or
governmental action on the ground that a secular purpose was lacking,
but only when it has concluded there was no question that the statute
or activity was motivated wholly by religious considerations." 465
U.S. at 680 (emphasis added).  Accord Bowen v. Kendrick, No. 87-253
(June 29, 1988), slip op. 11 ("a court may invalidate a statute (under
this prong) only if it is motivated wholly by an impermissible
purpose");  Wallace v. Jaffree, 472 U.S. 38, 56 (1985) (emphasis in
original) (government action is invalid only if it has "no secular
purpose").

   /8/ The Court focused its entanglement inquiry on the extent to
which the display required "ongoing, day-to-day interaction between
church and state," rather than on the potential "political
divisiveness" of the display (465 U.S. at 684);  see id. at 689
(O'Connor, J., concurring) ("In my view, political divisiveness along
religious lines should not be an independent test of
constitutionality.").  "In any event", the Court noted (id. at 684),
"apart from this litigation, there is no evidence of political
friction or divisiveness over the creche in the 40-year history of
Pawtucket's Christmas celebration."

   /9/ As examples, the Court cited (465 U.S. at 681-682) the
expenditure of public money for textbooks supplied to students
attending church-sponsored schools, Board of Education v. Allen, 392
U.S. 236 (1968), and for transportation of students to such schools,
Everson v. Board of Education, 330 U.S. 1 (1947);  federal grants for
buildings at church-sponsored colleges and universities, Tilton v.
Richardson, 403 U.S. 672 (1971), and other noncategorical grants to
institutions of higher education combining secular and religious
education, Roemer v. Board of Public Works, 426 U.S. 736 (1976);  tax
exemptions for church properties, Walz v. Tax Comm'n, 397 U.S. 664
(1970);  Sunday Closing Laws, McGowan v. Maryland, 336 U.S. 420 U.S.
420 (1961);  release time programs for religious training, Zorach, v.
Clauson, 343 U.S. 306 (1952);  and the legislative prayers upheld in
Marsh v. Chambers, 463 U.S. 783 (1983).

   /10/ The court acknowledged (Pet. App. 13a) that "a public entity
usually is able to articulate some secular purpose for a display
(first prong) and the mere placement and storage of a display will
involve little entanglement (third prong) of government and religion."
Thus, the court did not disturb findings by the district court that
the intention of the city and county was merely "to celebrate the
holiday season" and not "to affect anyone's religion" (id. at 36a) and
that the displays "did not create an excessive entanglement of
government with religion" (id. at 40a).

   /11/ Similarly, we do not believe that the Court should rely in
this case on the happenstance that both the creche and the menorah are
privately-owned.  Regardless of ownership, both the creche and the
menorah are part of government-sponsored displays.

   /12/ Furthermore, the chorale program that uses the creche as a
stage setting is expressly dedicated each year to the universal,
secular themes of world peace and brotherhood and to the memory of
persons missing in action in the Vietnam War.  Pet. App. 3a-4a.

   /13/ We do not, however, agree with petitioner Chabad (88-90 Pet.
10-11) that the City of Pittsburgh is compelled, once it erects a
Christmas tree, to include in its display a symbol associated with
Chanukah.  It is true that "(t)he clearest command of the
Establishment Clause is that one religious denomination cannot be
officially preferred over another." Larson v. Valente, 456 U.S. 228,
244 (1982).  But Lynch makes clear that display of the traditional
symbols of a national holiday with religious origins does not
constitute religious preferment.  465 U.S. at 687 n.13;  id. at 688
n.* (O'Connor, J., concurring).  Thus, no counterbalancing of such a
display is required;  indeed, it is simply not possible for the
government to give uniform recognition to all religions in the context
of commemorating a holiday with specific meaning for one or more
religions.

   /14/ The district court found that there was no element of coercion
in either of the displays at issue here.  "(N)one of the people who
enter the Courthouse are required to do anything;  they are not
required to read, or to sing, or to pause or to reflect.  Neither are
people required to pause or look or read or make any gestures where
the menorah is concerned;  they are merely displays." Pet. App. 35a.