# County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter

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## Concurring Opinions

    Brennan
    Stevens
    Kennedy
United States Supreme Court
492 U.S. 573
County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter
No. Nos 87-2050, 88-90 and 88-96 Argued: Feb. 22, 1989. --- Decided: July 3, 1989
Syllabus
This litigation concerns the constitutionality of two recurring holiday displays located on public property in downtown Pittsburgh. The first, a creche depicting the Christian Nativity scene, was placed on the Grand Staircase of the Allegheny County Courthouse, which is the "main," "most beautiful," and "most public" part of the courthouse. The creche was donated by the Holy Name Society, a Roman Catholic group, and bore a sign to that effect. Its manger had at its crest an angel bearing a banner proclaiming "Gloria in Excelsis Deo," meaning "Glory to God in the Highest." The second of the holiday displays in question was an 18-foot Chanukah menorah or candelabrum, which was placed just outside the City-County Building next to the city's 45-foot decorated Christmas tree. At the foot of the tree was a sign bearing the mayor's name and containing text declaring the city's "salute to liberty." The menorah is owned by Chabad, a Jewish group, but is stored, erected, and removed each year by the city. Respondents, the Greater Pittsburgh Chapter of the American Civil Liberties Union and seven local residents, filed suit seeking permanently to enjoin the county from displaying the creche and the city from displaying the menorah on the ground that the displays violated the Establishment Clause of the First Amendment, made applicable to state governments by the Fourteenth Amendment. The District Court denied relief, relying on Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604, which held that a city's inclusion of a creche in its annual Christmas display in a private park did not violate the Establishment Clause. The Court of Appeals reversed, distinguishing Lynch v. Donnelly, and holding that the creche and the menorah in the present case must be understood as an impermissible governmental endorsement of Christianity and Judaism under Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745.
Held: The judgment is affirmed in part and reversed in part, and the cases are remanded.
842 F.2d 655 (CA 3 1988), affirmed in part, reversed in part, and remanded.
Justice BLACKMUN delivered the opinion of the Court with respect to Parts III-A, IV, and V, concluding that:
1. Under Lemon v. Kurtzman, 403 U.S., at 612, 91 S.Ct., at 2111, a "practice which touches upon religion, if it is to be permissible under the Establishment Clause," must not, inter alia, "advance [or] inhibit religion in its principal or primary effect." Although, in refining the definition of governmental action that unconstitutionally "advances" religion, the Court's subsequent decisions have variously spoken in terms of "endorsement," "favoritism," "preference," or "promotion," the essential principle remains the same: The Clause, at the very least, prohibits government from appearing to take a position on questions of rel gious belief or from "making adherence to a religion relevant in any way to a person's standing in the political community." Lynch v. Donnelly, 465 U.S., at 687, 104 S.Ct., at 1367 (O'CONNOR, J., concurring). Pp. 589-594.
2. When viewed in its overall context, the creche display violates the Establishment Clause. The creche angel's words endorse a patently Christian message: Glory to God for the birth of Jesus Christ. Moreover, in contrast to Lynch, nothing in the creche's setting detracts from that message. Although the government may acknowledge Christmas as a cultural phenomenon, it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus. Pp. 598-602.
3. Justice KENNEDY's reasons for permitting the creche on the Grand Staircase and his condemnation of the Court's reasons for deciding otherwise are unpersuasive. Pp. 602-613.
(a) History cannot legitimate practices like the creche display that demonstrate the government's allegiance to a particular sect or creed. Pp. 602-605.
(b) The question whether a particular practice would constitute governmental proselytization is much the same as the endorsement inquiry, except to the extent the proselytization test requires an "obvious" allegiance between the government and the favored sect. This Court's decisions, however, impose no such burden on demonstrating that the government has favored a particular sect or creed, but, to the contrary, have required strict scrutiny of practices suggesting a denominational preference. E.g., Larson v. Valente, 456 U.S. 228, 246, 102 S.Ct. 1673, 1684, 72 L.Ed.2d 33. Pp. 605-609.
(c) The Constitution mandates that the government remain secular, rather than affiliating itself with religious beliefs or institutions, precisely in order to avoid discriminating against citizens on the basis of their religious faiths. Thus, the claim that prohibiting government from celebrating Christmas as a religious holiday discriminates against Christians in favor of nonadherents must fail, since it contradicts the fundamental premise of the Establishment Clause itself. In contrast, confining the government's own Christmas celebration to the holiday's secular aspects does not favor the religious beliefs of non-Christians over those of Christians, but simply permits the government to acknowledge the holiday without expressing an impermissible allegiance to Christian beliefs. Pp. 610-613.
Justice BLACKMUN, joined by Justice STEVENS, concluded in Part III-B that the concurring and dissenting opinions in Lynch v. Donnelly set forth the proper analytical framework for determining whether the government's display of objects having religious significance improperly advances religion. 465 U.S., at 687-694, 104 S.Ct., at 1366-1370 (O'CONNOR, J., concurring); id., at 694-726, 104 S.Ct., at 1370-1387 (BRENNAN, J., dissenting). Pp. 594-597.
Justice BLACKMUN concluded in Part VI that the menorah display does not have the prohibited effect of endorsing religion, given its "particular physical setting." Its combined display with a Christmas tree and a sign saluting liberty does not impermissibly endorse both the Christian and Jewish faiths, but simply recognizes that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status in our society. The widely accepted view of the Christmas tree as the preeminent secular symbol of the Christmas season emphasizes this point. The tree, moreover, by virtue of its size and central position in the display, is clearly the predominant element, and the placement of the menorah beside it is readily understood as simply a recognition that Christmas is not the only traditional way of celebrating the season. The absence of a more secular alternative to the menorah negates the inference of endorsement. Similarly, the presence of the mayor's sign confirms that in the particular context the government's asso iation with a religious symbol does not represent sponsorship of religious beliefs but simply a recognition of cultural diversity. Given all these considerations, it is not sufficiently likely that a reasonable observer would view the combined display as an endorsement or disapproval of his individual religious choices. Pp. 613-621.
Justice O'CONNOR also concluded that the city's display of a menorah, together with a Christmas tree and a sign saluting liberty, does not violate the Establishment Clause. The Christmas tree, whatever its origins, is widely viewed today as a secular symbol of the Christmas holiday. Although there may be certain secular aspects to Chanukah, it is primarily a religious holiday and the menorah its central religious symbol and ritual object. By including the menorah with the tree, however, and with the sign saluting liberty, the city conveyed a message of pluralism and freedom of belief during the holiday season, which, in this particular physical setting, could not be interpreted by a reasonable observer as an endorsement of Judaism or Christianity or disapproval of alternative beliefs. Pp. 632-637.
Justice KENNEDY, joined by The Chief Justice, Justice WHITE, and Justice SCALIA, concluded that both the menorah display and the creche display are permissible under the Establishment Clause. Pp. 655-667.
(a) The test set forth in Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745- which prohibits the "principal or primary effect" of a challenged governmental practice from either advancing or inhibiting religion-when applied with the proper sensitivity to our traditions and case law, supports the conclusion that both the creche and the menorah are permissible displays in the context of the holiday season. The requirement of neutrality inherent in the Lemon formulation does not require a relentless extirpation of all contact between government and religion. Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage, and the Establishment Clause permits government some latitude in recognizing the central role of religion in society. Any approach less sensitive to our heritage would border on latent hostility to religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion and so to the detriment of the religious. Thus, this Court's decisions disclose two principles limiting the government's ability to recognize and accommodate religion: It may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to a religion in such a degree that it in fact establishes a state religion or tends to do so. In other words, the government may not place its weight behind an obvious effort to proselytize on behalf of a particular religion. On the other hand, where the government's act of recognition or accommodation is passive and symbolic, any intangible benefit to religion is unlikely to present a realistic risk of establishment. To determine whether there exists an establishment, or a tendency toward one, reference must be made to the other types of church-state contacts that have existed unchallenged throughout our history or that have been found permissible in our case law. For example, Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604, upheld a city's holiday display of a creche, and Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019, held that a State's practice of employing a legislative chaplain was permissible. Pp. 655-663.
(b) In permitting the displays of the menorah and the creche, the city and county sought merely to "celebrate the season," and to acknowledge the historical background and the religious as well as secular nature of the Chanukah and Christmas holidays. This interest falls well within the tradition of governmental accommodation and acknowledgment of religion that has marked our history from the beginning. If government is to participate in its citizens' celebration of a holiday that contains both a secular and a religious component, enforced recognition of only the secular aspect would signify the callous indifference toward religious faith that our cases and traditions do not require; for by commemorating the holiday only as it is celebrated by nonadherents, the government would be refusing to acknowledge the plain fact, and the historical reality, that many of its citizens celebrate the religious aspects of the holiday as well. There is no suggestion here that the government's power to coerce has been used to further Christianity or Judaism or that the city or the county contributed money to further any one faith or intended to use the creche or the menorah to proselytize. Thus, the creche and menorah are purely passive symbols of religious holidays and their use is permissible under Lynch, supra. If Marsh, supra, allows Congress and the state legislatures to begin each day with a state-sponsored prayer offered by a government-employed chaplain, a menorah or creche, displayed in the limited context of the holiday season, cannot be invalid. The facts that, unlike the creche in Lynch, the menorah and creche at issue were both located on government property and were not surrounded by secular holiday paraphernalia are irrelevant, since the displays present no realistic danger of moving the government down the forbidden road toward an establishment of religion. Pp. 663-667.
BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O'CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O'CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O'CONNOR, J., joined, and an opinion with respect to Part VI. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined, post, p. 623. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined, post, p. 637. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 646. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined, post, p. 655.
Peter Buscemi, Washington, D.C., for petitioners in No. 87-2050 and No. 88-96; George R. Specter, D.R. Pellegrini, George M. Janocsko, Robert L. McTiernan, Pittsburgh, Pa., on brief.
Nathan Lewin for petitioner in No. 88-90.
Roslyn M. Litman, Pittsburgh, Pa., for respondents.
Justice BLACKMUN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, an opinion with respect to Parts I and II, in which Justice STEVENS and Justice O'CONNOR join, an opinion with respect to Part III-B, in which Justice STEVENS joins, an opinion with respect to Part VII, in which Justice O'CONNOR joins, and an opinion with respect to Part VI.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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