1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-17-1999

ACLU NJ v. Schundler

Precedential or Non-Precedential:

Docket 98-5021

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Recommended Citation

"ACLU NJ v. Schundler" (1999). 1999 Decisions. Paper 42.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/42
Filed February 16, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_______________ 

No. 98-5021 

_______________ 

AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, on 

behalf of its members, ROBERT LANDER, ADAM JACOBS, 

JOEL SOLOW and ANN SORREL 

v. 

BRET SCHUNDLER, in his official capacity as Mayor of the 

City of Jersey City, New Jersey; THE CITY COUNCIL OF 

JERSEY CITY, NEW JERSEY; CITY OF JERSEY CITY, 

NEW JERSEY, 

Appellants 

_______________ 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

(D.C. No. 95-cv-00206) 

(District Judge: Honorable Dickinson R. Debevoise)

_______________ 

Argued: August 6, 1998 

Before: NYGAARD, ALITO, and RENDELL, 

Circuit Judges 

(Opinion Filed: February 16, 1999) 

KEVIN J. HASSON (ARGUED) 

ERIC W. TREENE 

The Becket Fund for Religious Liberty 

2000 Pennsylvania Ave., N.W. 

 Suite 3580 

Washington, D.C. 20006 

Counsel for Appellants 
NATHAN LEWIN 

RICHARD W. GARNETT (ARGUED) 

MILLER, CASSIDY, LARROCA & 

 LEWIN 

2555 M Street, N.W. 

Washington, D.C. 20037 

Counsel for Chabad of Pittsburgh as 

Amicus Curiae in Support of 

Defendants-Appellants 

RONALD K. CHEN (ARGUED) 

RUTGERS CONSTITUTIONAL 

 LITIGATION CLINIC 

Rutgers Law School 

15 Washington St. 

Newark, NJ 07102 

Counsel for Appellee 

_______________ 

OPINION OF THE COURT 

_______________ 

ALITO, Circuit Judge: 

This appeal concerns the constitutionality of two Jersey 

City "holiday" displays. The first, which featured a menorah 

and a Christmas tree, was annually placed in front of City 

 2 

Hall for several decades. In 1995, the District Court 

permanently enjoined the City from continuing the practice 

of erecting this or any substantially similar display, see ACLU 

of N.J. v. Schundler, 931 F.Supp. 1180 (D.N.J. 1995), and a 

prior panel of our court affirmed that decision. ACLU of N.J. 

v. Schundler, 104 F.3d 1435, 1444-50 (1997). Jersey City 

subsequently moved for relief from that order under Rule 60 

(b)(5) of the Federal Rules of Civil Procedure, contending that 

the Supreme Court's intervening decision in Agostini v. 

Felton, 521 U.S. 203, 117 S. Ct. 1997 (1997), had 

undermined the panel's reasoning. The District Court denied 

this motion, and we now affirm that decision. 

Jersey City also challenges the District Court's most recent 

decision regarding a modified holiday display that the City 

put up after the original display was enjoined. The modified 
display contained not only a creche, a menorah, and

Christmas tree, but also large plastic figures of Santa Claus 

and Frosty the Snowman, a red sled, and Kwanzaa symbols 

on the tree. In addition, the display contained two signs 

stating that the display was one of a series of displays put up 

by the City throughout the year to celebrate its residents' 

cultural and ethnic diversity. We find this modified display 

to be indistinguishable in any constitutionally significant 

respect from the displays upheld by the Supreme Court in 

Lynch v. Donnelly, 465 U.S. 668 (1984), and County of 

Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989) 

(hereinafter "Allegheny County"), and we therefore hold that 

Jersey City's modified display is likewise constitutional. 

I. 

From at least 1965 until 1995, the City of Jersey City 

commemorated the winter holiday season by displaying a 

creche and a menorah on city property in front of City Hall. 

The creche and menorah were owned, maintained, and stored 

by the City. The creche, which was displayed during the 

period preceding and following Christmas, included a manger 

that measured 11' 9" by 7' by 4' 4". It also included figures 

of Mary, Joseph, the Baby Jesus, and the Three Wise Men; 

 3 

these varied in height from 12" to 27". Surrounded by a postrail fence, the creche was placed on the right side of City 

Hall. The menorah, measuring 19' by 14', was displayed 

during Chanukah on the left side of City Hall. (Also on the 

left-side of the lawn was a 13' Christmas tree, but this 

apparently escaped the District Court's attention.1) Because 

the date of Chanukah generally falls near that of Christmas, 

the creche and menorah were usually displayed 

simultaneously, but in 1994, when the plaintiffs commenced 

this suit, Chanukah began unusually early, on November 28, 

and therefore the menorah was taken down shortly before the 

creche went up.2 

When Jersey City erected its traditional display in 1994, 

the American Civil Liberties Union sent the City a letter 

asking it to discontinue its practice of displaying religious 

symbols on public property. In response, the City placed a 

sign adjacent to the display stating: "Through this display 

and others throughout the year, the City of Jersey City is 

pleased to celebrate the diverse cultural and ethnic heritages 

of its peoples." Jersey City maintains that the sign's 

reference to other events refers to, among other things, the 

City's annual commemoration of Ramadan, the annual Grand 

Phagwah Parade held to celebrate the Hindu New Year, and 

a wide variety of cultural events related to the many diverse 
ethnic groups in the City. 

On December 21, 1994, the ACLU and other plaintiffs filed 

a complaint in state court against the City, the mayor, and 

the city council (hereinafter collectively "the City"), 

challenging the City's display under the federal and state 

constitutions.3 In January 1995, the City removed the action 

to the District Court, and on November 28, 1995, the District 

___________________________________________________________ 

1. See 104 F.3d at 1438 n.1. 

2. According to the City, such an anomaly will not recur until 2014. 

3. Neither side has argued in this appeal that the state constitution 

imposes tighter restrictions than the federal Constitution. Therefore, 

for purposes of this litigation we treat the two bodies of law 

as coextensive. See ACLU of N.J. v. Schundler, 104 F.3d at 1446 n.11. 

 4 

Court granted the plaintiffs' motion for summary judgment 

and held that the City's display violated the Establishment 

Clause of the federal Constitution, as well as a parallel state 

constitutional provision. The District Court permanently 

enjoined the City from erecting its traditional display or any 

substantially similar scene or display at the front entrance of 

City Hall or on other property that the City owned,

maintained, or controlled. 

The City announced that it would appeal the decision, but 

in the meantime, on December 13, 1995, it erected a modified 

display that included, in addition to the elements in the 

previous display, a 4' tall plastic figure of Santa Claus, a 3' 

10" tall plastic figure of Frosty the Snowman, a 4' tall sled, 

Kwanzaa symbols on the tree, and two signs, each 

approximately 2' by 3', stating: "Through this display and 

others throughout the year, the City of Jersey City is pleased 

to celebrate the diverse cultural and ethnic heritages of its 

peoples." See Appendix A (display on left side of City Hall); 

Appendix B (display on right side of City Hall); Appendix C 

(map of display). 

The plaintiffs then moved to have the City held in contempt 

of the District Court's injunction, and they also sought a 

preliminary injunction against the modified display. On 

December 18, the District Court denied these requests, 

concluding that the addition of the secular symbols rendered 

the modified display constitutionally unobjectionable. Ruling 
quickly, the District Court did not analyze the modified 

display at length but wrote: 

 I conclude that by making these additions defendants 

 have sufficiently demystified the [holy], they have 

 sufficiently desanctified sacred symbols, and they have 

 sufficiently deconsecrated the sacred to escape the 

 confines of the injunctive order in this case. 

On appeal, a panel of our court affirmed the District 

Court's decision regarding the original display. 104 F.3d at 

1444-50. The panel noted the religious significance of the 

creche and the menorah, as well as the City's annual 

 5 

expenditure of some public funds to erect and maintain the 

display. Id. at 1445. The panel concluded that "the [original] 

display cannot be viewed as anything but a constitutionally 

impermissible dual endorsement of Christianity and 

Judaism." 104 F.3d at 1446. 

The panel cited three reasons for rejecting the City's 

argument that the display was not an endorsement of

Christianity and Judaism but part of the City's year-long 

celebration of its people's many different religious and ethnic 

backgrounds. 104 F.3d at 1446-50. The panel concluded (a) 

that government endorsement of many different religions 

violated the Establishment Clause, id. at 1447, (b) that a 

reasonable observer, viewing the holiday display, would not 

be aware of the City's other religious and cultural

celebrations at other times of the year, id. at 1447-49, and (c) 

that the City's policy of celebrating many different religions 

was a quintessential example of government entanglement 

with religion. Id. at 1449-50. In reaching the latter 

conclusion regarding entanglement, the prior panel relied 

chiefly on Aguilar v. Felton, 473 U.S. 402 (1985). See 104 

F.3d at 1449-50. 

Turning to the modified display, the panel held that the 

District Court's analysis was incorrect. 104 F.3d at 1450-52. 

The panel found no basis in Supreme Court cases for what 

it termed the District Court's "`demystification' approach," 

and the panel noted that the parties agreed that this 

approach was "flawed." Id. at 1450-51 & nn. 17-18. The 

panel "conclude[d] that the district court erred in determining 

that the constitutionality of the modified display depended on 

whether the presence of Frosty and Santa `demystified' the 

creche and the menorah." Id. at 1451 (footnote omitted). The 

panel therefore remanded the case for the District Court to 

analyze the modified display pursuant to the proper

standards. Id. at 1452. But while remanding the question 

of the constitutionality of the modified display for 
reconsideration by the District Court, the panel also spent 

several paragraphs expressing in dicta a skeptical view about 

the constitutionality of the modified display. Id. at 1451-52. 

 6 

On remand, the plaintiffs moved for summary judgment 

and a permanent injunction barring the modified display. 

The defendants cross-moved for summary judgment and also 

filed a motion under Fed. R. Civ. P. 60(b)(5) for relief from the 

District Court's earlier injunction on the ground that the 

Supreme Court's decision in Agostini, which overruled 

Aguilar, had undermined the panel's reasoning. Specifically, 

the defendants pointed to the panel's reliance on the concept 

of "entanglement" and the Supreme Court's decision in 

Agostini that entanglement should no longer to be considered 

an independent test but should be viewed along with other 

factors as "an aspect of the inquiry into . . . effect." 117 S. Ct. 

at 2015. 

Reversing its prior position, the District Court granted 

summary judgment for the plaintiffs and held that the 

modified display violated the Constitution. The Court wrote 

that the panel's "discussion of the context of the display after 

the addition of Frosty the Snowman, Santa and a red sled 

leaves little doubt that it would conclude on the basis of the 

facts in the record before it that even after these additions the 

display communicates the City's endorsement of Christianity 

and Judaism in violation of the Establishment Clause." The 

District Court also denied the defendants' motion for Rule 

60(b)(5) relief, and the defendants then took this appeal. 

II. 

We first consider the City's challenge to the denial of its 

Rule 60(b)(5) motion. Under that rule, a court may relieve a 

party from a final judgment or order when "it is no longer 

equitable that the judgment should have prospective

application." Fed. R. Civ. P. 60(b)(5). A party can show that 

a judgment should no longer have prospective application if 

it can demonstrate "a significant change in either factual 

conditions or the law." Rufo v. Inmantes of Suffolk County 

Jail, 502 U.S. 367, 384 (1992). 

In Agostini, the Supreme Court modified the Establishment 

Clause test articulated in Lemon v. Kurtzman, 403 U.S. 602, 

612-13 (1971), which asked (1) whether a challenged

 7 

government practice had a secular purpose, (2) whether its 

principal or primary effect advanced or inhibited religion, and 
(3) whether it created an excessive entanglement of the 

government with religion. See ACLU of N.J. v. Black Horse 

Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1483 (3d Cir. 1996). 

The Agostini Court stated that Lemon's entanglement prong 

is best understood and treated "as an aspect of the inquiry 

into a statute's effect." Agostini, 117 S. Ct. at 2015. While 

this statement merges the entanglement prong with the effect 

prong, it does not mean that considerations of excessive 

entanglement have been entirely deleted from Establishment 

Clause analysis; in Agostini, the Court analyzed the factors 

regarding entanglement at length. See id. at 2015-16. 

Rather, the statement appears to mean that entanglement, 

standing alone, will not render an action unconstitutional if 

the action does not have the overall effect of advancing, 

endorsing, or disapproving of religion. See id. 

Since entanglement analysis is still part of the 

Establishment Clause inquiry, the mere fact that the prongs 

have been merged is insufficient to undermine the prior 

panel's decision regarding the original Jersey City display. 

The City and amicus curiae Chabad of Pittsburgh point out, 

however, that the prior panel's entanglement analysis relied 

on two rationales that the Supreme Court rejected in 

Agostini. First, the prior panel stated that the City's display 

policy would foster excessive interactions between municipal 

officials and local religious leaders in implementing the 

policy.4 104 F.3d at 1449-50. Second, the prior panel 

reasoned that the City's displays would "produce political 

divisiveness." Id. at 1450. The Agostini Court addressed 

___________________________________________________________ 

4. The panel asked: "Should a rabbi and a priest be consulted when 

erecting the menorah and the creche? Should a ceremony accompany 

the erection of these religious symbols? Should the City employ 

a Muslim cleric during the Ramadan Observance month to avoid 

offending a theological protocol of Islam?" 104 F.3d at 1449 

(footnote omitted). Compare Greater Pittsburgh ACLU v. Allegheny 

County, 842 F.2d 655, 662 (3d Cir. 1988) ("mere placement and 

storage [of religious display] will involve little entanglement"), 

aff'd in part and rev'd in part, 492 U.S. 573 (1989). 

 8 

these same two factors in considering the constitutionality of 

New York City's "Title I" program,5 under which public school 

teachers are sent into parochial schools to provide remedial 

education to disadvantaged children, and the Court held that 

these two factors "are insufficient by themselves to create an 

`excessive' entanglement" under its "current understanding 

of the Establishment Clause." 117 S. Ct. at 2015. 

While we are inclined to agree with the City and amicus 
curiae Chabad of Pittsburgh that the prior panel's 

entanglement analysis is no longer valid in the wake of 

Agostini, it does not follow that Rule 60(b)(5) relief was 

required. Before discussing entanglement at all, the prior 

panel concluded that Jersey City's original display violated 

the Establishment Clause because it "communicate[d] [an] 

endorsement of Christianity and Judaism . . . ." 104 F.3d at 

1446. If this conclusion is accepted, the original display is 

unconstitutional irrespective of the presence or absence of 

excessive entanglement. Accordingly, we agree with the 

District Court that Rule 60(b)(5) relief was not required. 

III. 

We therefore turn to the question of the modified display. 

As noted, the District Court, after initially upholding this 

display, reached the opposite conclusion on remand. Not 

unreasonably, the District Court interpreted certain 

statements in the prior panel opinion to mean that the panel 

viewed the modified display as constitutionally dubious. We 

conclude, however, that the statements on which the District 

Court relied were merely dicta, that the prior panel did not 

render a decision regarding the constitutionality of the 

modified display, and that we are therefore obligated to 

analyze that question in accordance with our own best 

independent judgment.6 

___________________________________________________________ 

5. Title I of the Elementary and Secondary Education Act of 1965, 79 

Stat. 27 (1965), as modified, 20 U.S.C. S 6301 et seq. (1994). 

6. Our court strives to maintain a consistent body of circuit 

jurisprudence. Thus, "[i]t is the tradition of this court that the 

holding of a panel in a reported opinion is binding on subsequent 

panels" and that "no subsequent panel overrules the holding in a 

published opinion of a previous panel." Internal Operating 

Procedure 9.1 (emphasis added). Dicta in prior opinions, however, 

are not treated similarly. On the contrary, we have repeatedly 

held that dicta are not binding. See, e.g., McGurl v. Trucking 

Employees, 124 F.3d 471, 484 (3d Cir. 1997); United States v. 

Bennett, 100 F.3d 1105, 1110 (3d Cir. 1996); Bradley v. 

Pittsburgh Bd. of Educ., 913 F.2d 1064, 1071 (3d Cir. 1990). 

Our tradition of treating prior panel decisions as binding 

is closely tied to the rules and procedures regarding rehearing 

en banc. Rehearing en banc provides the opportunity for 

the full court to correct a panel decision to which the 

 9 

As previously noted, when the modified display was first 

challenged in the District Court, that Court was required to 

rule on an expedited basis, and the Court was therefore 

unable to provide a lengthy, detailed explanation of its 
conclusion that the display satisfied Establishment Clause 

standards. Instead, the District Court summarily stated that 

by adding additional objects to the original display, the City 

had, in the Court's view, "sufficiently demystified the [holy], 

. . . sufficiently desanctified sacred symbols, and . . . 

sufficiently deconsecrated the sacred." As both sides 

recognized in the prior appeal and as the panel held, see 104 

F.3d at 1451 & n.18, this analysis did not comport with 

Lynch or Allegheny County and finds no support in 

Establishment Clause jurisprudence. Demystification, 

desanctification, and deconsecration suggest a process of 

profanation, something that the Establishment Clause 

neither demands nor tolerates. See, e.g., Lemon, 403 U.S. at 

612 (government conduct violates Establishment Clause if its 

primary effect is to advance or inhibit religion). 

___________________________________________________________ 

court is unwilling to be bound. But the standards for rehearing 

en banc look to the panel's decision, not to the panel's dicta. 

See Fed. R. App. P. 35 (emphasis added) (rehearing in banc may 

be ordered by a court of appeals "to secure or maintain uniformity 

of its decisions . . . ."). LAR 35.1 (emphasis added) (if rehearing 

is sought based on an asserted conflict with prior circuit precedent, 

counsel must certify, "based on a reasoned and studied professional 

judgment, the panel decision is contrary to decisions of the United 

States Court of Appeals for the Third Circuit . . . and that 

consideration by the full court is necessary to secure and maintain 

uniformity of decisions in this court."). Thus, panel dicta are 

generally not tested by the availability of en banc review, and 

they are accordingly not entitled to the same binding authority 

that our court has traditionally given to panel decisions. 

 10 

Emphasizing the insufficiency of the District Court's 

"demystification" analysis, the prior panel "conclude[d] that 

the district court erred in determining that the 

constitutionality of the modified display depended on whether 

the presence of Frosty and Santa `demystified' the creche and 

the menorah." 104 F.3d at 1451. The panel therefore 

vacated the District Court's modified injunction order and 

remanded the case "so that the district court [could] consider, 

consistent with the standards set forth in [its] opinion, 

whether the modified display was constitutional." Id. at 

1452. Since no facts were in dispute, the prior panel itself 

certainly could have ruled on the constitutionality of the 

modified display. Moreover, since the relevant facts are 

relatively simple and were set out in full detail in the panel's 

opinion, see id. at 1437-38, the prior panel was in just as 

good a position as the District Court to decide that question 

in the first instance. Yet the prior panel chose not to take 

that course, instead remanding for the District Court to make 
that decision. In light of this remand, it is apparent that the 

prior panel did not foreclose us from ruling on the

constitutionality of the modified display in accordance with 

our own best independent judgment. We entirely agree with 

Judge McKee's summary of the majority holding. In 

concurrence, Judge McKee wrote: 

 I think my colleagues' analysis of Lynch and Allegheny 

 establishes that the first display is inconsistent with the 

 prohibitions of Lemon and properly remands to determine 

 the legality of the second display. 

104 F.3d at 1453 (emphasis added). 

We thus reject the plaintiffs' suggestion that the prior panel 

"formally remanded the issue of the Modified Display to the 

district court" but "in effect already answered the question it 

ostensibly remanded." Appellees' Br. at 6, 8 (emphasis 

added). There is no such thing as an ostensible remand, and 

that is not what the prior panel purported to do. The prior 

panel in fact remanded the question of the constitutionality 

of the modified display, thus leaving the question open and 

 11 

requiring us to decide that question for ourselves. 

For these reasons, the dissent's chastisements about 

"evad[ing] the reasoning of [the] prior panel" (Dissent at 42) 

are mistaken. We have scrupulously followed what is 

"binding" upon us: the prior panel's "holding" (see IOP 9.1), 

i.e., that the original display was unconstitutional and the 

District Court, in judging the second display, employed 

incorrect standards. As for the prior panel's comments about 

the modified display, the dissent itself acknowledges that 

these were expressed "in dictum" (Dissent at 42), but the 

dissent would apparently have us follow these non-binding 

statements rather than Supreme Court precedent, viz., Lynch 

and Allegheny County. This we cannot do. 

IV. 

The Supreme Court has handed down two decisions 

concerning the constitutionality of municipal holiday 

displays, and therefore it is to these decisions that we must 

primarily look for guidance in evaluating Jersey City's 

modified display. 

A. In Lynch v. Donnelly, 465 U.S. 668 (1984), the Court 

upheld the constitutionality of a holiday display erected by 

the City of Pawtucket, Rhode Island. "[S]ituated in a park 

owned by a nonprofit organization and located in the heart of 

the shopping district," the display was characterized by the 
Court as "essentially like those to be found in hundreds of 

towns or cities across the Nation -- often on public grounds 

-- during the Christmas season." Id. at 671. The display 

consisted of "many of the figures and decorations 

traditionally associated with Christmas, including, among 

other things, a Santa Claus house, reindeer pulling Santa's 

sleigh, candy-striped poles, a Christmas tree, carolers, cutout 

figures representing such characters as a clown, an elephant, 

and a teddy bear, hundreds of colored lights, a large banner 

that reads `SEASONS GREETINGS,' and [a] creche." Id. All 

components of the display were owned by the City. Id. The 

City had purchased the creche some years earlier for $1365, 

and the City incurred a small annual expense in erecting, 

 12 

lighting, and dismantling the creche. Id. 

Writing for the Court, Chief Justice Burger analyzed the 

inclusion of the creche in the Pawtucket display under the 

Lemon test and thus inquired whether the inclusion of the 

creche had a secular purpose, whether its principal or 

primary purpose was to advance or inhibit religion, and 

whether it created an excessive entanglement of government 

with religion. See 465 U.S. at 679. The Court held that the 

Pawtucket display had a secular purpose, explaining: 

 The city . . . has principally taken note of a significant 

 historical religious event long celebrated in the Western 

 World. The creche in the display depicts the historical 

 origins of the traditional event long recognized as a 

 National Holiday. . . . The display is sponsored by the 

 City to celebrate the Holiday and to depict the origins of 

 that Holiday. These are legitimate secular purposes. 

Id. at 680-81 (footnote omitted). 

The Court likewise held that the inclusion of the creche did 

not have the principal or primary effect of advancing religion. 

465 U.S. at 681-83. Noting that prior Establishment Clause 

cases had upheld various forms of aid to students attending 

church-related schools and colleges, tax exemptions for 

church property, Sunday Closing laws, "release time" 

programs, and legislative prayers, the Court was "unable to 

discern a greater aid to religion deriving from inclusion of the 

creche than from these benefits and endorsements previously 

held not violative of the Establishment Clause." Id. at 682. 

The Court concluded that if the inclusion of the creche 

provided some "benefit to one faith or religion or to all 

religions," the effect was "indirect, remote and incidental." Id. 

at 683. 

Finally, the Court held that there was no impermissible 
entanglement. 465 U.S. at 683-85. The Court saw no 

"administrative entanglement" and observed that there was 

"no evidence of contact with church authorities concerning 

the content or design of the exhibit." Id. at 684. The Court 

 13 

also noted that the cost of including the creche was small. 

Nor did the Court see a basis for finding an excessive 

entanglement due to political divisiveness. Id. at 684-85. 

The Court rejected the idea that political divisiveness alone 

could "serve to invalidate otherwise permissible conduct." Id. 

at 684. Observing that the inclusion of the creche had 

produced no marked dissension prior to the lawsuit then 

before it, the Court pointedly wrote that "[a] litigant cannot, 

by the very act of commencing a lawsuit . . . create the 

appearance of divisiveness and then exploit it as evidence of 

entanglement." Id. at 684-85.7 

Justice O'Connor, who joined the opinion of the Court and 

cast the critical fifth vote in favor of the constitutionality of 

the Pawtucket display, wrote a concurring opinion "to suggest 

a clarification of . . . Establishment Clause doctrine." Id. at 

687 (O'Connor, J., concurring). She pointed out, however, 

that she viewed the Court's opinion as "consistent with" her 

analysis. Id. 

Justice O'Connor wrote that government "can run afoul of 

[the Establishment Clause] in two principal ways": by means 

of an "excessive entanglement with religious institutions" and 

by "government endorsement or disapproval of religion." 465 

U.S. at 687-88. In the Pawtucket case, Justice O'Connor 

found "no institutional entanglement," and she stated that 

"political divisiveness along religious lines should not be an 

independent test of constitutionality." Id. at 689. "The 

central issue in [the] case," she stated, was "whether 

Pawtucket ha[d] endorsed Christianity by its display of the 

creche." Id. at 690. "To answer that question," she 

continued, it was necessary to "examine both what Pawtucket 

intended to communicate in displaying the creche and what 

message the city's display actually conveyed." Id. She found 

that "Pawtucket did not intend to convey any message of 

endorsement of Christianity or disapproval of non-Christian 

religions." Id. at 691. She explained: 

___________________________________________________________ 

7. See ACLU of N.J. v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 

1471, 1486 (3d Cir. 1996) (general summary of Lynch). 

 14 
 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. 

Id. 

Justice O'Connor also concluded that Pawtucket's display 

of the creche did not "communicate a message that the 

government intend[ed] to endorse the Christian beliefs 

represented by the creche." Id. at 692. She wrote: 

 Although the religious and indeed sectarian significance 

 of the creche . . . is not neutralized by the setting, 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. The display 

 celebrates a public holiday, and no one contends that 

 declaration of that holiday is understood to be an 

 endorsement of religion. The holiday itself has very 

 strong secular components and traditions. Government 

 celebration of the holiday, which is extremely common, 

 generally is not understood to endorse the religious 

 content of the holiday, just as government celebration of 

 Thanksgiving is not so understood. The creche is a 

 traditional symbol of the holiday that is very commonly 

 displayed along with purely secular symbols, as it was in 

 Pawtucket. 

Id. 

Four Justices -- Justices Brennan, Marshall, Blackmun, 

and Stevens -- dissented, concluding that the Pawtucket 

display did not have a secular purpose, 465 U.S. at 698-701 

(Brennan, J., dissenting), had the primary effect of placing 

"the government's imprimatur of approval on the particular 

 15 

religious beliefs exemplified by the creche," id. at 701, and 

"pose[d] a significant threat of fostering `excessive 

entanglement.'" Id. at 702. 

B. The Supreme Court's second decision concerning 

holiday displays came five years later in County of Allegheny 

v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989), aff'g in part 

and rev'g in part, Greater Pittsburgh ACLU v. Allegheny 

County, 842 F.2d 655 (3d Cir. 1988). At issue were two 
displays on public property in downtown Pittsburgh. The 

first was situated on the Grand Staircase of the Allegheny 

County Courthouse, a spot described as the "most public" 

and "most beautiful" part of that building. 492 U.S. at 579. 

This display consisted of a creche, a banner proclaiming 

"Gloria in Excelsis Deo!" ("Glory to God in the highest!"), some 

poinsettias, a "small" decorated evergreen, and a plaque 

stating that the display had been donated by the Holy Name 

Society, a Roman Catholic group. Id. at 580. "No figures of 

Santa Claus or other decorations appeared on the Grand 

Staircase." Id. at 580-81. (A picture of this display appears 

at 492 U.S. at 622, Appendix A.) 

Five Justices -- the four Lynch dissenters plus Justice 

O'Connor -- held that this display violated the Establishment 

Clause. Writing for the Court with respect to this issue, see 

492 U.S. at 588-92, Justice Blackmun took pains to 

distinguish the Allegheny County Courthouse display from 

the display upheld in Lynch. "[U]nlike in Lynch," he wrote, 

"nothing in the context of the display detracts from the 

creche's religious message." Id. at 598. He noted that the 

creche stood "alone" as "the single element of the display on 

the Grand Staircase" and that "[t]he presence of Santas or 

other Christmas decorations elsewhere" in the courthouse 

"fail[ed] to negate the endorsement effect of the creche." Id. 

at 598-99 & n. 48. Justice Blackmun rejected the suggestion 

that the "floral decoration surrounding the creche" could "be 

viewed as somehow equivalent to the secular symbols in the 

overall Lynch display." Id. at 599. He concluded:

 In sum, Lynch teaches that government may celebrate 

 16 

 Christmas in some manner and form, but not in a way 

 that endorses Christian doctrine. Here, Allegheny 

 County has transgressed this line. It has chosen to 

 celebrate Christmas in a way that has the effect of 

 endorsing a patently Christian message: Glory to God for 

 the birth of Jesus Christ. Under Lynch, and the rest of 

 our cases, nothing more is required to demonstrate a 

 violation of the Establishment Clause. The display of the 

 creche in this context, therefore, must be permanently 

 enjoined. 

Id. at 601-02. 

In a separate concurrence, Justice O'Connor similarly 

distinguished Lynch, stating that "[i]n contrast to the creche 

in Lynch, which was displayed in a private park in the city's 

commercial district as part of a broader display of traditional 
secular symbols of the holiday season, this creche st[ood] 

alone in the county courthouse" and had the 

"unconstitutional effect of conveying a government 

endorsement of Christianity." 492 U.S. at 627 (O'Connor, J., 

concurring). Three of the Lynch dissenters -- Brennan, 

Marshall and Stevens -- were of the view that the display of 

religious symbols on government property necessarily sends 

a messsage favoring religion. 492 U.S. at 637-46 (Brennan, 

J., concurring in part and dissenting in part); id. at 646-55 

(Stevens, J., concurring in part and dissenting in part). In an 

opinion by Justice Kennedy, four Justices dissented and 

would have upheld the courthouse display. 492 U.S. at 655-79. 

A splintered majority of the Court reached a different 

conclusion concerning the second display at issue in 

Allegheny County, which was located in front of the CityCounty Building. (A picture of this display appears at 492 

U.S. at 622, Appendix B.) The City's portion of this building 

houses its "principal offices, including the mayor's," 492 U.S. 

at 581, and is thus the functional equivalent of a city hall. 

This second display included three elements: a decorated 45- 

foot Christmas tree; an 18-foot menorah that was owned by 

 17 

Chabad, a Jewish group, but was stored, erected, and 

removed each year by the City; and a sign stating: "During 

this holiday season, the city of Pittsburgh salutes liberty. Let 

these festive lights remind us that we are keepers of the flame 

of liberty and our legacy of freedom." Id. at 582, 587. 

Six Justices concluded that this display was constitutional, 

but they set out their views in three separate opinions. First, 

four Justices approved Justice Kennedy's opinion, which 

concluded that both Pittsburgh displays satisfied the 

Establishment Clause. Justice Kennedy concluded that 

these displays did not violate the Establishment Clause 

because they were noncoercive and did not give direct benefit 

to religion in such a degree that they established or tended to 

establish religion. 492 U.S. at 659, 663-667 (opinion of 

Kennedy, J.). He noted that it is indisputable that 

government may participate in celebrating holidays with 

religious origins, and he added that requiring government to 

refrain from any use of religious symbols in connection with 

these celebrations would convey a message of hostility to 

religion. He wrote: 

 If government is to participate in its citizens' celebration 

 of a holiday that contains both a secular and 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 . . . . 
Id. at 664. 

Second, Justice Blackmun addressed the City-County 

Building display in Part VI of his opinion, which was not 

endorsed by any other member of the Court. 492 U.S. at 

613-21 (opinion of Blackmun, J.). Justice Blackmun

concluded that this display represented a celebration by the 

city of "both Christmas and Chanukah as secular holidays." 

Id. at 615. He interpreted the display to mean that "both 

Christmas and Chanukah are part of the same winter-holiday 

season, which has attained a secular status in our society." 

Id. at 616. He noted that the tallest object in the display, the 

 18 

tree, is a secular symbol, and while he recognized that the 

menorah is a religious symbol, he suggested that it did not in 

context convey a religious message because of the proximity 

of the larger tree and the fact that, in his view, there was no 

comparable secular symbol of Chanukah that the City could 

have used. Id. at 616-18. He was fortified in this view by the 

mayor's sign, which saluted liberty and drew "upon the 

theme of light . . . common to both Chanukah and Christmas 

as winter festivals . . . ." Id. at 619. 

Third, Justice O'Connor concluded in a separate 

concurrence that the "combined holiday display of a

Chanukah menorah, a Christmas tree, and a sign saluting 

liberty d[id] not have the effect of conveying an endorsement 

of religion." Id. at 632. She agreed with Justice Blackmun 

that the Christmas tree is a secular symbol, but she felt that 

Justice Blackmun's analysis "obscure[d] the religious nature 

of the menorah and the holiday of Chanukah." Id. at 633. 

She viewed "the relevant question for Establishment Clause 

purposes" as "whether the city of Pittsburgh's display of the 

menorah, the religious symbol of a religious holiday, next to 

a Christmas tree and a sign saluting liberty sen[t] a message 

of government endorsement of Judaism or whether it sen[t] 

a message of pluralism and freedom to choose one's own 

beliefs." Id. at 634. She opined that the latter, secular 

message was the one that the display conveyed: 

 By accompanying its display of a Christmas tree -- a 

 secular symbol of the Christmas holiday season -- with 

 a salute to liberty, and by adding a religious symbol from 

 a Jewish holiday celebrated at roughly the same time of 

 year, . . . the city did not endorse Judaism or religion in 

 general, but rather conveyed a message of pluralism and 

 freedom of belief during the holiday season. 

Id. at 635 (O'Connor, J., concurring). 
Justice O'Connor rejected the suggestion that the display 

conveyed "a message that endorses religion over nonreligion," 

observing that "[a] reasonable observer would . . . appreciate 

that the combined display [was] an effort to acknowledge the 

 19 

cultural diversity of our country and to convey tolerance of 

different choices in matters of religious belief or nonbelief by 

recognizing that the winter holiday season is celebrated in 

diverse ways by our citizens." Id. at 635-36.9 

Because of the splintered majority in Allegheny County with 

respect to the constitutionality of the display in front of the 

City-County Building, we must employ the standard set out 

in Marks v. United States, 430 U.S. 188 (1977), in order to 

identify the Court's holding. Specifically, we must examine 

the positions taken by the Justices needed to form a majority 

and follow the opinion that supports the majority position on 

the narrowest grounds. See Katz v. Aetna Cas. & Sur. Co., 

972 F.2d 53, 58 (3d Cir. 1992); Planned Parenthood of 

Southeastern Pennsylvania v. Casey, 947 F.2d 682, 693-94 

(3d Cir. 1991), aff'd in part and rev'd in part, 505 U.S. 833 

(1992). 

In the case of Allegheny County, Justice O'Connor's opinion 

sets out the position that we must follow. In order to be 

sustained, a display would have to satisfy, at a minimum, the 

standards set out in Justice Kennedy's opinion, which was 

approved by three other Justices, as well as the standards set 

out in Justice O'Connor's opinion. Although Justice 

Blackmun also voted to sustain the display at the CityCounty Building, his position seemingly imposes more 

formidable standards, and a display would not have to meet 

those standards in order to survive. Accordingly, in 

considering how the modified Jersey City display now before 

us fares under Allegheny County, we will focus on Justice 

O'Connor's opinion. Before doing that, however, we will first 

test the modified Jersey City display against the teachings of 

Lynch. 

___________________________________________________________ 

8. See Black Horse Pike, 84 F.3d at 1486-87 (general summary of 

Allegheny County). 

9. The three dissenters -- Brennan, Marshall and Stevens -- held the 

same view of the scene in front of City Hall as they did of the creche 

on the great staircase. 492 U.S. at 637-46 (Brennan, J., concurring 

in part and dissenting in part); id. at 646-55 (Stevens, J., concurring 

in part and dissenting in part). 

 20 
V. 

The display that the Supreme Court sustained in Lynch 

resembles the modified Jersey City display in several 

important respects. Both included one or more religious 

symbols owned by the city (in Lynch, a creche; in Jersey City, 

a creche and a menorah), as well as a variety of secular ones. 

Both included one or more secular signs or banners (in 

Lynch, a banner proclaiming "SEASONS GREETINGS"; in

Jersey City, two signs that read: "Through this display and 

others throughout the year, the City of Jersey City is pleased 

to celebrate the diverse cultural and ethnic heritages of its 

peoples."). Accordingly, Lynch appears to support the 

constitutionality of the modified Jersey City display unless 

some constitutionally significant distinction can be shown. 

One potentially important difference is that the display in 

Pawtucket was located on private property in the center of 

the city's business district, whereas the Jersey City display 

was situated in front of City Hall on public land. In Lynch, 

neither the opinion of the Court nor Justice O'Connor's 

concurrence seemed to attribute constitutional significance 

to this fact. (The opinion of the Court noted the fact in 

passing at the beginning of the opinion, 465 U.S. at 671, and 

Justice O'Connor did not mention this fact at all.) However, 

Justice O'Connor's opinion in Allegheny seemed to place 

greater emphasis on this aspect of the Pawtucket display, 

492 U.S. at 623, 626 (O'Connor, J., concurring), and 

therefore we will discuss this potentially significant 

distinction in connection with our discussion of Allegheny 

County. 

With the possible exception of this factor, however, we see 

no reasonable basis for distinguishing the modified Jersey 

City display from the display upheld in Lynch. The plaintiffs 

and our dissenting colleague suggest that the cases can be 

distinguished on the ground that in the modified Jersey City 

display "Santa Claus and Frosty the Snowman clearly do not 

constitute separate focal points or centers of attention 

coequal with the Menorah and the Nativity Scene," Appellees' 

 21 

Br. at 14, but we see no basis for this distinction. 

Appendices A and B to this opinion, which depict the 

modified displays on both sides of City Hall in Jersey City, 

speak for themselves. In the modified display on the right, 

the sleigh is just as much a focal point as the figures in the 

nativity scene. And in the modified display on the left, the 

tree is just as much a focal point as the menorah.10 

The dissent attempts to distinguish the modified Jersey 
City display from the display in Lynch on the ground that 

"the Jersey City display had more and larger sectarian 

symbols combined with fewer secular symbols." Dissent at 

35. What the record shows, however, is the following. 

With respect to the size of the religious symbols in the two 

displays, the nativity-scene figures in the Jersey City display, 

which ranged from 12 inches to 27 inches in height, were not 

larger than those in the Lynch display, which ranged in 

height from five inches to five feet. 465 U.S. at 671. Nor 

were there more figures in the Jersey City nativity scene than 

in the Pawtucket scene, which contained figures of "the 

Infant Jesus, Mary and Joseph, angels, shepherds, kings, 

and animals." 465 U.S. at 671. Thus, the dissent's point 

boils down to this: the Jersey City display differed from the 

Lynch display in that it included a large menorah and a 

smaller number of secular symbols. But any suggestion that 

these factors are dispositive for Establishment Clause 

purposes is belied by the Supreme Court's holding in 

Allegheny County that the display of a large menorah and one 

secular symbol, a Christmas tree, in front of the City-County 

Building in Pittsburgh was constitutional. 

It is interesting that the plaintiffs deride some of the very 

distinctions that the dissent finds so significant. See 

___________________________________________________________ 

10. The plaintiffs' reference to "separate focal points" was derived 

from Justice Blackmun's discussion of the display of the creche on 

the Grand Staircase of the county courthouse in Allegheny County. 

Writing for the Court in this portion of his opinion, Justice Blackmun 

contrasted this display, in which the creche "st[ood] alone" as "the 

single element of the display on the Grand Staircase," with the 

Pawtucket display, in which each of the secular figures "had its 

own focal point." 492 U.S. at 598. 

 22 

Appellees' Br. at 15 (the court should not "engage in the 

fruitless exercise of determining, figuratively, `how many 

candy canes offset one Jesus?' . . . . There is simply no 

common currency or rate of exchange by which religious and 

secular symbols can be traded and offset."). Instead, the 

plaintiffs stress the District Court's observation on remand 

that Jersey City's addition of the secular symbols was "a ploy 

designed to permit continued display of the religious 

symbols." The suggestion seems to be that, even if Jersey 

City could have properly erected the modified display in the 

first place, the City's initial display, which was held to violate 

the Establishment Clause, showed that the city officials were 

motivated by a desire to evade constitutional requirements 

and that this motivation required invalidation of the modified 

display. Asked during oral argument whether this meant 
that Jersey City might be precluded from erecting a display 

identical to one that would be permissible in other nearby 

cities, counsel for the plaintiffs insisted that Jersey City's 

"prior history" would have to be taken into account, at least 

until the time came when it could be considered to be 

"purged" of the "prior constitutional taint." Oral Arg. Tr. at 

27. 

We reject this argument. The mere fact that Jersey City's 

first display was held to violate the Establishment Clause is 

plainly insufficient to show that the second display lacked "a 

secular legislative purpose," see Lemon, 403 U.S. at 612-13, 

or that it was "intend[ed] to convey a message of endorsement 

or disapproval of religion." Lynch, 465 (O'Connor, J., 

concurring). As our prior discussion of Lynch and Allegheny 

County illustrates, the Supreme Court's decisions regarding 

holiday displays have been marked by fine line-drawing, and 

therefore it is not easy to determine whether particular 

displays satisfy the Court's standards. Under these 

circumstances, the mere fact that city officials miscalculate 

and approve a display that is found by the federal courts to 

 23 

cross over the line is hardly proof of the officials' bad faith.11 

Although the original Jersey City display was ultimately 

struck down, no Supreme Court or Third Circuit precedent 

clearly established that it was unconstitutional until the prior 

panel handed down its decision, and therefore the city 

officials' decision to continue to erect that display, which had 

been put up for decades, can hardly be viewed as evidence of 

an intent to flout the Establishment Clause.12 

We now consider how the modified Jersey City display fares 

under the holding of the Supreme Court in Allegheny County. 

The Court's decision striking down the display of the creche 

on the Grand Staircase of the Allegheny County Courthouse 

does not cast doubt on the constitutionality of the modified 

Jersey City display. As noted earlier, the display on the 

Grand Staircase consisted of a creche with a religious 

proclamation ("Gloria in Excelsis Deo") surrounded by a floral 

decoration that "serve[d] only to draw one's attention" to the 

creche. 492 U.S. at 598-99. The display contained no 

secular symbols, and the display did not communicate to a 

reasonable observer the sort of secular message that is 

needed to pass Establishment Clause scrutiny, e.g.,

acknowledgment of "the cultural diversity of our country" and 

support for "tolerance of different choices in matters of 

religious belief or nonbelief by recognizing that the winter 

holiday season is celebrated in diverse ways by our citizens." 

Allegheny County, 492 U.S. at 636 (O'Connor, J., concurring). 

The modified Jersey City display expressly conveyed this very 

message by means of its sign and implicitly conveyed the 
___________________________________________________________ 

11. If reaching the erroneous conclusion that a particular display is 

constitutional is regarded as proof of an intent to flout the 

Establishment Clause, are Allegheny County dissenters implicated by 

virtue of their views? 

12. The plaintiffs' position is also contrary to the Supreme Court's 

treatment of the two displays at issue in Allegheny County. If the 

plaintiffs' view were correct, the erection of the unconstitutional 

display on the Grand Staircase of the County Courthouse should have 

militated in favor of also striking down the display in front of the 

City-County Building, but a majority of the Supreme Court sustained 

that display, and not one Justice took the position that the 

officials' miscalculation regarding the Grand Staircase tainted 

the decision concerning the City-County Building. 

 24 

same message through its diverse nonverbal elements. Thus, 

the unconstitutional display on the Grand Staircase of the 

Allegheny County Courthouse is readily distinguishable from 

the modified Jersey City display. 

On the other hand, there are instructive parallels between 

the constitutionally permissible display in front of the CityCounty Building and the modified Jersey City display. 

(Indeed, the photograph of the City-County Building display, 

see 492 U.S. at 622, and the display on the left-side of 

Jersey City's City Hall (see Appendix A of this opinion) are 

virtually identical except for the presence of Santa in the 

latter display). First, both displays contained both secular 

and religious symbolism. It is true that the City-County 

Building display included fewer religious symbols (a menorah 

only) than the modified Jersey City display (both a menorah 

on the left side of City Hall and a creche on the right), but the 

City-County Building display also included fewer secular 

symbols, and in both cases the balance seems to have been 

roughly the same. Moreover, Justice O'Connor's opinion in 

Allegheny County refutes any suggestion that the display of 

a menorah is inherently less likely to create Establishment 

Clause problems than is the display of a creche. Eschewing 

the suggestion that Chanukah is "a `secular' holiday" or that 

"the menorah has a `secular dimension,"' she pointedly wrote 

that "the menorah is the central religious symbol and ritual 

object of [a] religious holiday." 492 U.S. at 633-34. She 

similarly rejected the idea that, because "it would be 

implausible for the city to endorse a faith adhered to by a 

minority of the citizenry," inclusion of a menorah in a holiday 

display is less likely than a Christian religious symbol to 

convey a message of government endorsement of religion. Id. 

at 634. She wrote that "[a] menorah standing alone at city 
hall may well send such a message to nonadherents, just as 

in this case the creche standing alone at the Allegheny 

County Courthouse sends a message of governmental 

endorsement of Christianity . . . ." Id. 

Second, the strong similarity between the location of the 

City-County Building display (on public land in front of what 

 25 

is in essence Pittsburgh's City Hall) and the location of the 

Jersey City display (on public land in front of City Hall) is 

particularly important in light of our earlier conclusion that 

the only basis on which the Pawtucket display upheld in 

Lynch might potentially be distinguished from the modified 

Jersey City display was that the former display was located 

on private land in the city's business district. The portion of 

Justice O'Connor's separate opinion in Allegheny County 

relating to the display on the Grand Staircase suggested that 

this distinction had some significance.13 But when Justice 

O'Connor turned to the display in front of the City-County 

Building -- a location indistinguishable for present purposes 

from the site of the Jersey City display -- she held that the 

display was constitutional. (The other factors that Justice 

O'Connor stressed in this portion of her Allegheny County 

opinion -- the tree and the sign -- also have close parallels 

here). This persuades us that the location of the Jersey City 

display on public property in front of City Hall does not in 

itself provide a valid basis for holding the display to be 

unconstitutional. 

Moreover, although this factor is not necessary to our 

decision, we are convinced that, in evaluating the message 

conveyed by the modified Jersey City display to a reasonable 

observer, the general scope of Jersey City's practice regarding 

diverse cultural displays and celebrations should be 

considered. In our en banc decision in ACLU of N.J. v. Black 

Horse Pike Reg'l Bd. of Ed., 84 F.3d 1471 (3d Cir. 1996), we 

held that, in determining whether a government practice 

endorses religion, " `the "history and ubiquity" of a practice is 

relevant because it provides part of the context in which a 

reasonable observer evaluates whether a challenged 

governmental practice conveys a message of endorsement of 

___________________________________________________________ 

13. Justice O'Connor noted that the creche in Lynch had been "displayed 

in a private park in the city's commercial district," and she opined 

that "[t]he display of religious symbols in public areas of core 

government buildings runs a special risk of `mak[ing] religion 

relevant, in reality or public perception, to status in the political 

community.'" 492 U.S. at 626 (O'Connor, J., concurring (quoting Lynch, 
465 U.S. at 692 (O'Connor, J., concurring)). 

 26 

religion.' " Id. at 1486 (quoting Allegheny County, 492 U.S. 

at 630 (O'Connor, J., concurring)); see also Capitol Square 

Review and Advisory Bd. v. Pinette, 115 S.Ct. 2440, 2455 

(1995) (O'Connor, J., concurring) ("the reasonable observer in 

the endorsement inquiry must be deemed aware of the

history and context of the community and forum in which the 

religious display appears"; "the knowledge attributed to the 

reasonable observer [cannot] be limited to the information 

gleaned simply from viewing the challenged display"). To the 

extent that the prior panel opinion, see 104 F.3d at 1448-49, 

conflicted with our prior en banc decision in Black Horse 

Pike, the prior en banc decision must of course take 

precedence. 

In sum, we are unable to perceive any meaningful 

constitutional distinction between the display at issue here 

and those that the Supreme Court upheld in Lynch and 

Allegheny County. Reasonably viewed, none of these displays 

conveyed a message of government endorsement of 

Christianity, Judaism, or of religion in general but instead 

"sent a message of pluralism and freedom to choose one's 

own beliefs." Allegheny County, 492 U.S. at 633 (O'Connor, 

J., concurring). If we follow Lynch and Allegheny County, we 

have no alternative but to reverse the permanent injunction 

insofar as it enjoins Jersey City from erecting the modified 

display "or any substantially similar scene or display in the 

vicinity of the entrance to the City of Jersey City's City Hall." 

Indeed, even if we were persuaded that the modified display 

itself was unconstitutional, we could not possibly approve an 

injunction against "any substantially similar scene or 

display." Both the Pawtucket display and the display in front 

of the City-County Building in Pittsburgh were, at the least, 

"substantially similar" to the modified Jersey City display, 

and consequently the District Court's injunction has the 

obviously improper effect of enjoining displays that are 

identical to ones that have passed the Supreme Court's 

scrutiny. 

The dissent's attempt to distinguish the modified Jersey 

City display from the display upheld in Allegheny Court is 

 27 

unpersuasive. The dissent first observes that in Allegheny 

County the 45' tall Christmas tree "dwarfed the 18' tall 

menorah." Dissent at 36. The reader can compare the 

photograph of the display sustained in Allegheny County (see 

492 U.S. at 622) with Appendix A to this opinion (the left side 
of the Jersey City display) and make an independent

judgment as to whether the two scenes are constitutionally 

distinguishable. In our view, they are not. The two 

menorahs are comparable in height (18' tall in Allegheny, 19' 

tall in Jersey City), and although the tree in Pittsburgh 

appears larger than that in Jersey City, it is difficult to 

believe that this difference in height is dispositive. 

The dissent next observes that "a display's location informs 

the constitutional analysis" (Dissent at 36), but the dissent 

obscures the fact that the display upheld in Allegheny County 

and the Jersey City display were located in comparable spots: 

on public land in front of the building that housed the 

principal offices of the municipal government. 

The dissent notes that "Jersey City used public funds to 

own, erect, and maintain the creche and the menorah." 

Dissent at 37. But in Allegheny County, the menorah was 

also "stored, erected, and removed each year by the city." 

492 U.S. at 587 (opinion of Blackmun, J.). And in Lynch, the 

city owned, erected, and dismantled the creche. 468 U.S. at 

671. 

Finally, the dissent argues that, whereas "a display 

containing only a menorah and a Christmas tree" may be 

constitutional, "when a creche and a menorah are displayed 

together, `the menorah's religious significance is 

emphasized.' " Dissent at 37 (quoting Schundler I, 104 F.3d 

at 1446). This statement overlooks the fact that the creche 

and menorah were displayed on opposite sides of the City 

Hall Plaza Park. See Appendix C. More important, since 

Lynch teaches that display of a creche is not per se 

unconstitutional, and Allegheny County teaches that the 

same is true of a menorah, it is hard to accept the

proposition that the Establishment Clause is violated when 

 28 

these two symbols are displayed together as part of a holiday 

display that includes secular symbols and is dedicated to the 

celebration of a municipality's cultural diversity.

VI. 

Before concluding, we find it necessary to explain why we 

do not agree with some of the prior panel's dicta regarding 

the modified display. Our central point of disagreement 

concerns the prior panel's suggestion that any inclusion of a 

creche -- but not a menorah -- in a display in front of a 

prominent government building, such as a city hall, is 

incompatible with the Establishment Clause. The prior panel 

observed: 
 Government display of a creche [unlike a menorah] 

 cannot convey a meaning separate from the very act it is 

 meant to portray. A creche depicts the Birth of Christ, 

 the event that lies at the foundation of Christianity. In 

 Allegheny County, the Court determined that displays 

 containing a creche as a primary focal point, which are 

 situated at the seat of government, are constitutionally 

 impermissible as they convey a message of government 

 endorsement. This is consistent with Lynch, in which 

 the Court permitted a creche that was part of a display 

 in a private park depicting a "winter wonderland" scene 

 because, in context, there were no external indicia of 

 government endorsement. 

104 F.3d at 1451. 

We respectfully submit, in part for reasons that we have 

already discussed, that this dicta misinterprets both Lynch 

and Allegheny County. First, the distinction that is drawn 

between a creche and a menorah necessarily rests on the 

mistaken view that these two symbols differ critically with 

respect to the nature or degree of the religious message that 

they convey. As we have explained, however, Justice 

O'Connor flatly rejected this suggestion in her pivotal 

Allegheny County opinion. See 492 U.S. at 633-34 (opinion 

 29 

of O'Connor, J.). Once it is recognized that a creche and a 

menorah should be regarded as equivalent religious symbols 

for the purpose of analyzing holiday displays, the similarity 

between the constitutionally permissible display in front of 

the City-County Building in Pittsburgh and the modified 

display in front of Jersey City's City Hall becomes apparent. 

Second, we cannot agree with the prior panel's suggestion 

that in Lynch "the Court permitted a creche that was part of 

a display in a private park depicting a `winter wonderland' 

scene because, in context, there were no external indicia of 

government endorsement." 104 F.3d at 1451 (emphasis 

added). As we have noted, in Allegheny County, Justice 

O'Connor, as well as Justice Blackmun, seems to have 

attributed some significance to the fact that the display in 

Lynch was situated on private property in the center of 

Pawtucket's commercial district, but to go further, as the 

prior panel did, and say that the Pawtucket display bore "no 

external indicia of government endorsement" is not correct. 

In Lynch, every Justice, whether in the majority or the 

dissent, agreed that by means of its holiday display the city 

of Pawtucket was endorsing some message. The Justices 

differed in their interpretation of the message that the display 

conveyed, but they all understood that the message was 

linked to the City -- as the lower court opinions in that case 
made abundantly clear: 

 [I]t is difficult to suggest that anyone could have failed to 

 receive a message of government sponsorship after 

 observing Santa Claus ride the city fire engine to the 

 park to join with the mayor of Pawtucket in inaugurating 

 the holiday season by turning on the lights of the city- 

 owned display. See Donnelly v. Lynch, 525 F. Supp. 

 1150, 1156 (RI 1981). Indeed, the District Court in 

 Lynch found that `people might reasonably mistake the 

 Park for public property,' and rejected as `frivolous' the 

 suggestion that the display was not directly associated 

 with the city. Id., at 1176, and n. 35. 

Allegheny County, 492 U.S. at 666-67 (opinion of Kennedy, 

 30 

J.). Once these two points are recognized -- that the 

menorah and the creche must be viewed for present purposes 

as equivalent religious symbols and that the display in Lynch 

indisputably involved the conveyance of a government 

message -- the foundation of the prior panel's dicta is 

undermined. 

VII. 

For these reasons, we affirm the decision of the District 

Court insofar as it denied the defendants' motion under Rule 

60(b)(5) for relief from the Court's previous judgment. 

However, we reverse the District Court's order insofar as it 

disposed of the parties' cross-motions for summary judgment 

with respect to the modified display and insofar as it enjoined 

the defendants from erecting that or any substantially similar 

display. We remand the case to the District Court with 

instructions to grant summary judgment in favor of the 

defendants. 

 31 

NYGAARD, Circuit Judge. Dissenting. 

I have two reasons for dissenting. First, I dissent because 

I believe that the argument urged upon us by appellant 

undermines our earlier decision in this case. Following 

Schundler I, addressing the original display, I still conclude 

that the addition of a few small token secular objects is not 

enough to constitutionally legitimate the modified display. 

Although appellant strives mightily to explain what we did 

not hold in Schundler I, I believe it more important to 
determine what we did hold. We explicitly held that the 

display at issue here, minus Frosty, Santa, the sleigh, and 

the Kwanzaa symbols, was unconstitutional because it had 

the effect of communicating an endorsement of particular 

religions. So, I submit that the real question now is whether 

simply adding Kwanzaa symbols to the tree and placing 

Frosty (a secular symbol of Christmas), Santa (a oncereligious symbol -- St. Nicholas -- now quite secularized), 

and a sleigh in the display sufficiently changed the display's 

context so as to negate the message that was conveyed by the 

original display, which we held unconstitutional. 

The second, albeit weaker, reason why I dissent is that 

although the majority cites the applicable Supreme Court 

case law to reach its conclusion that this display is 

constitutional, parsing the same law and applying it to these 

facts leads me to the opposite conclusion. There is, I readily 

acknowledge, much confusion and plenty of room for 

jurisprudential disagreement in this area. No bright lines of 

demarcation have been drawn between religious 

"establishment" and simple display, and perhaps none of us 

is capable of accurately drawing such a line given the state of 

the case-law. I am afraid that the shifting majorities and 

fact-specific opinions of the Supreme Court in Lynch and 

Allegheny County provide only a precarious analytical 

framework for both the public and we inferior federal courts 

to apply in determining the exact location of the line of 

demarcation. 

The Supreme Court's two major recent excursions into this 

 32 

area have resulted in fractured majorities and no clear 

statement of the law. Nonetheless, it seems to me that the 

Court has directed us to evaluate religious symbols in the 

context of the entire display. As we noted in Schundler I, "the 

Supreme Court, in its myriad of approaches in the display 

cases, has repeatedly emphasized the importance of 

examining the context of the display at issue to determine 

whether it has the effect of endorsing religion." Schundler I, 

104 F.3d at 1451. We reaffirmed the significance of context 

when we examined Allegheny County and Lynch "to illustrate 

`the importance of the context of a challenged practice' in 

conducting an Establishment Clause analysis." Id. (quoting 

ACLU v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471, 

1484 (3d Cir. 1996) (en banc)). Following the Supreme 

Court's decisions in Lynch and Allegheny County, I conclude 

that Jersey City's modified display resulted in an 

unconstitutional establishment of religion. 

A. Lynch 
First, our display is unlike the display that the Supreme 

Court allowed in Lynch. The majority sees "no reasonable 

basis," other than the different locations of the displays, "for 

distinguishing the modified Jersey City display from the 

display upheld in Lynch." Majority Opinion at 21. I believe 

that this analysis of the display fails to adequately credit the 

different contexts of the two displays. When looked at in its 

context, I believe that the constitutional display in Lynch is 

distinguishable. The display approved by the Court in Lynch 

included, in addition to a creche (the only religious symbol), 

 a Santa Claus house with a live Santa distributing 

 candy; reindeer pulling Santa's sleigh; a live 40-foot 

 Christmas tree strung with lights; statues of carolers in 

 old-fashioned dress; candy-striped poles; a "talking" 

 wishing well; a large banner proclaiming "SEASONS 

 GREETINGS"; a miniature "village" with several houses 

 and a church; and various "cut-out" figures, including 

 those of a clown, a dancing elephant, a robot, and a 

 teddy bear. 

 33 

Allegheny County, 492 U.S. at 596, 109 S. Ct. at 3102 

(opinion of Blackmun, J.). The Court in Allegheny County 

noted that the Lynch display was composed of a series of 

figures and objects, each group of which had its own focal 

point. See id. at 598, 109 S. Ct. at 3104 (opinion of the 

Court). The various objects each had a separate "visual story 

to tell." Id., 109 S. Ct. at 3104. 

Contrasting the Lynch display, with its "superabundance 

of secular symbols [which] dilute[d] the message of the 

creche," Amancio v. Town of Somerset, No. Civ.A. 

98CV12810RGS, 1998 WL 846865, *3 (D. Mass. Nov. 23,

1998) (finding display consisting of a creche, holiday lights, 

a wreath, a Christmas tree, and a plastic Santa Claus 

unconstitutional), with the Jersey City display reveals a 

different context. Here, rather than a "superabundance" of 

secular objects, only a handful of nonsectarian objects were 

placed in the display, none of which, other than the 

Christmas tree, could have reasonably been considered a 

separate focal point. I would not underestimate the essential 

importance to the Supreme Court majority of the numerous 

secular objects surrounding the creche in Lynch. As the 

Second Circuit Court of Appeals noted, 

 After Allegheny and Lynch, therefore, not every 

 city-owned-and/or-displayed creche violates the 

 Establishment Clause. Lynch squarely upheld a city's 

 erection of a creche that it owned as part of its 

 Christmas display in a park owned by a nonprofit 

 organization. A key factor leading to that conclusion, 
 especially in light of the later Allegheny decision, was 

 that the creche was only a small part of an otherwise 

 secular display. 

Elewski v. City of Syracuse, 123 F.3d 51, 54 (2d Cir. 1997) 

(upholding a holiday display of a creche in light of the 

context) (emphasis added) (citations omitted), cert. denied, 

118 S. Ct. 1186 (1998). Although I disagree with the Elewski 

opinion in light of Lynch, nonetheless even if we apply its 

reasoning to the Jersey City display, the creche and menorah 

 34 

were certainly not "small parts" of an otherwise secular 

display. The only reasonable interpretation, as we noted in 

Schundler I, is that Frosty and Santa composed a small 

secular part of an otherwise sectarian display, not the other 

way around. 

Rather than the seasonal, "winter wonderland" scene in 

Lynch, Jersey City erected a display that a reasonable 

observer would interpret as having three symbolic focal 

points: the creche, the menorah, and the Christmas tree.1 

The same three focal points that were found to result in an 

unconstitutional endorsement of religion by this Court in 

Schundler I.2 Indeed, the modified display perhaps provides 

a more substantial example of endorsement than the original 

display because the characters of the creche were removed 

from their isolated, sheltered position in the manger to a 

more prominent position beside it. See Schundler I, 104 F.3d 

at 1439. Compared to the display in Lynch, the Jersey City 

display had more and larger sectarian symbols combined 

with fewer secular symbols. This created a different context 

___________________________________________________________ 

1. Appellant argues that because the tree was comparable in size to the 

menorah, it created a separate focal point. This argument is irrelevant 

in light of our holding in Schundler I. In that case, we expressly 

held that the presence of the Christmas tree did not make the display 

constitutional. In Schundler I, we determined that the Christmas tree 

had a secular effect, and the mere addition of Kwanzaa ornaments to 

the tree certainly does little to enhance the already secular effect. 

In addition, applying a sort of Blackmun yardstick test, appellant 

appears to argue that the 4' tall Santa and the 3'10" tall Frosty 

created separate focal points that operated to neutralize the 

sectarian message conveyed by the 14' tall menorah and the over 

45' square, 7' tall manger with a separate nativity scene. The 

snowman was located to the back left of the manger, approximately 

35 feet away from the manger. See App. 48. Santa Claus, on the 

other hand, was located across the walkway, situated between 
the 13' tall tree and the 14' tall menorah. These token figures 

simply did not substantially detract from the unconstitutional 

sectarian message conveyed by the original display. See 

Schundler I, 104 F.3d at 1452. 

2. We also placed a great deal of emphasis on the location of the 

display on the front steps of City Hall in Schundler I. I will 

follow the majority's lead and discuss this aspect of the case 

when dealing with Allegheny County. 

 35 

and resulted in a different message, one of government 

endorsement of religion. 

B. Allegheny County 

Nor do I think that Allegheny County supports the 

conclusion that the Jersey City display was constitutional. 

It can be argued that, when looking at the secular and 

sectarian elements, the balance seems to have been "roughly" 

the same in the Jersey City display and the Allegheny County 

display located on the front steps of the City-County 

Building. I think that statement underestimates the

importance of the context of the display by eliding the 

difference in the size and location of the various elements. In 

Allegheny County, the 45' tall Christmas tree was "clearly the 

predominant element in the city's display" on the steps of the 

City-County Building. Allegheny County, 492 U.S. at 617, 

109 S. Ct. at 3113 (opinion of Blackmun, J.). The tree 

dwarfed the 18' tall menorah, which was placed to the side of 

the tree's central position beneath the middle archway in 

front of the building. See id. This clearly contrasts the 

Allegheny County display with the Jersey City display in 

which, on both sides of the display, the "predominant" 

element was sectarian. 

Although not determinative, a display's location informs the 

constitutional analysis. As Justice O'Connor stated in 

Allegheny County, "[t]he display of religious symbols in public 

areas of core government buildings runs a special risk of 

`mak[ing] religion relevant, in reality or in public perception, 

to status in the political community.' " 492 U.S. at 626, 109 

S. Ct. at 3119 (O'Connor, J., concurring) (alteration in 

original) (quoting Lynch, 465 U.S. at 692, 104 S. Ct. at 1369 

(O'Connor, J., concurring)). When dealing with the original 

display in the exact same location in Schundler I, we stated, 

 When a government chooses to speak by erecting a 

 creche on government property, the principles at the core 

 of the Establishment Clause are clearly implicated. By 

 erecting the creche itself, on city property, a city sends 

 a stronger message of endorsement of religion than when 
 36 

 it merely provides a forum for private religious speech. 

 In the former context, the government is effectively 

 conveying the message that "we celebrate the holiday 

 season by recognizing the birth of Christ." 

Schundler I, 104 F.3d at 1445 (citation omitted). What is 

clear then is that when a display containing religious 

elements is located in front of the main city government 

building, we should recognize that the possibility of sending 

a message of religious endorsement to the reasonable 

observer is augmented.3 

We must not overlook an important basis of our decision in 

Schundler I: In finding the display unconstitutional, we relied 

on the fact that Jersey City used public funds to own, erect, 

and maintain the creche and the menorah. Although not a 

deciding factor, we noted that "by using taxpayer dollars to 

fund a display containing religious symbols, Jersey City has 

increased the risk that the display's religious message will be 

attributed to the city and its taxpayers." Id. at 1445-46; see 

also Elewski, 123 F.3d at 57 (Cabranes, J., dissenting) 

(noting that government sponsorship is "a relevant and 

important factor"). The modified display here is subject to 

the same infirmity. 

In Allegheny County, the Court allowed a display 

containing only a menorah and a Christmas tree. We, 

however, have found that when a creche and a menorah are 

displayed together, "the menorah's religious significance is 

emphasized." Schundler I, 104 F.3d at 1446. In Allegheny 

County, Justice O'Connor found that, even though the 

religious message of the menorah was not entirely 

neutralized, any message of government endorsement was 

___________________________________________________________ 

3. Justice O'Connor approved the display in Allegheny County that was 

situated on the steps of a government building. Since she allowed that 

display, it can be argued that the location of the Jersey City display 

does not in itself provide a valid basis for holding the display to be 

unconstitutional. Although I agree that this factor alone does not 

justify finding a display to be unconstitutional, it is certainly an 

aspect that should be taken into account when determining the message 

conveyed by the display. 

 37 
negated by the presence of the much larger Christmas tree. 

See Allegheny County , 492 U.S. at 635, 109 S. Ct. at 3123 

(O'Connor, J, concurring). In Jersey City, however, the 

religious aspect of the menorah was underscored by the rest 

of the display.4 In this case, the menorah is more reasonably 

viewed in light of the presence of the creche, not the tree. In 

Allegheny County, the menorah outside the City-County 

Building was privately owned and its religious message was 

not accentuated by the additional presence of a creche 

representing the stable wherein Jesus was born. These facts 

distinguish the Allegheny County display from this one. 

To support its argument that no sectarian message was 

delivered, appellant points to the two signs proclaiming that 

the display was part of a year-round celebration of diversity. 

The value of the signs should be considered in light of, and 

is wholly negated by, the fact that the original display we held 

unconstitutional contained the same sign. Furthermore, the 

sign clearly states that Jersey City is supporting the display, 

removing any doubt from the reasonable observer's mind 

concerning whether the display was private speech or 

government speech. Although informative, the mere presence 

of signs stating that the display was part of a celebration of 

ethnic and cultural differences does little to negate the 

impact of the sectarian message.5 

___________________________________________________________ 

4. It can be argued that Justice O'Connor's opinion in Allegheny County 

seems to rebut Justice Blackmun's argument in the same case that a 

menorah is an inherently less religious symbol than a creche. I 

am not sure I agree with that because when a reasonable observer 

sees a menorah what would she or he think of except the miracle 

of the oil, or of the holy candelabrum in the Jewish Temple, and 

of the Jewish Festival of Lights. Moreover, although the religious 

impact of a menorah standing alone was debatable, at least by the 

members of the Supreme Court, we have found that the combination 

of a menorah with a creche communicates a clearly sectarian 

message. See Schundler I, 104 F.3d at 1446. 

5. As Justice Blackmun stated, "The simultaneous endorsement of 

Christianity and Judaism is no less constitutionally infirm than the 

endorsement of Christianity alone." Allegheny County, 492 U.S. at 615, 

109 S. Ct. at 3112 (opinion of Blackmun, J.) 

 38 

Appellant argues that Schundler I incorrectly determined 

that a reasonable observer would not be aware of Jersey 

City's other celebrations throughout the year. Assuming 

arguendo that the earlier panel was incorrect, looking at the 
history of this display and others in Jersey City does little to 

save the modified display from its message. I am not exactly 

sure what a reasonable observer would think. I doubt, 

however, that he or she would question long why the creche 

and menorah were on the City Hall lawn before concluding 

that it was to celebrate Christmas and Hanukkah. I also 

think that the reasonable observer, looking at the modified 

display, would be aware of the various ethnic and cultural 

celebrations throughout the year. In addition, the 

reasonable observer would likely know that no other religious 

celebrations occurred in front of City Hall. The reasonable 

observer would see that the display is larger than any other 

display in front of City Hall. The reasonable observer would 

realize that the display was in place longer than any other 

display, secular or sectarian, that occupied the very visible 

space in front of City Hall.6 Finally, the reasonable observer 

would likely remember that for approximately thirty years, 

Jersey City had erected a virtually identical display that we 

found endorsed religion in violation of the First Amendment 

of the United States Constitution. 

___________________________________________________________ 

6. From my examination of the record, the only evidence of other 

displays erected by Jersey City in front of City Hall comes from 

the deposition of the mayor, Bret Schundler. 

 Q. Apart from the menorah and the nativity scene, can you recall 

 any other displays erected on the city's initiative that have 

 been erected in front of City Hall? 

 A. I'm sure there have been. 

 Q. Do you have any specific recollections of any examples, as 

 we sit here today? 

 A. We have had memorial week out there, we have flags out there, 

 as you know, which is right in front of City Hall, celebrating 

 every group under the sun. 

App. 160. 

 39 

After thirty years of religious promotion by Jersey City in 

front of City Hall, the reasonable observer would likely see 

the addition of the secular figures, which "lacked the physical 

sturdiness and careful positioning of the religious symbols," 

Dist. Ct. at 10, as we saw them in our previous opinion -- 

"token additions" which do little to "secularize" the "conveyed 

. . . message of government endorsement of religion." 

Schundler I, 104 F.3d at 1452 & n.19 (noting the "artful[ ]" 
argument of the ACLU that the reasonable observer would no 

doubt characterize the additional figures as "attempts at 

evasion of constitutional prohibitions through superficial 

secular tokenism"); see also Dist. Ct. at 10 (finding that the 

addition of the secular symbols was "a ploy designed to 

permit continued display of the religious symbols"); ACLU v. 

City of Florissant, 17 F. Supp. 2d 1068, 1075-76 (E.D. Mo. 

1998) (finding, on similar facts, that adding secular figures to 

a previously sectarian display did not "negate or muffle the 

earlier message of endorsement"). I am aware of no Supreme 

Court holding that allows the government to make a religious 

pronouncement at Christmas and Hanukkah as long as it 

has made a sufficient number of secular pronouncements at 

other times of the year. Although Jersey City certainly has 

separate ethnic and cultural celebrations, this does not 

obscure the fact that for several weeks of every year, the city 

government erected a display that communicated a religious 

message. The Supreme Court's interpretation of the First 

Amendment simply does not allow the government to do that. 

C. Lack of Supreme Court Standard 

This case, after four years of litigation, underscores what 

I stated earlier about the problems with the standards and 

analyses provided by the Supreme Court in this area. In the 

course of this litigation, we have twice been asked to evaluate 

the constitutionality of two virtually identical displays. We 

have come to two directly opposite conclusions. What has 

resulted is an intra-circuit split in the truest sense of the 

phrase. 

 40 

The inconsistent results in this Court can be directly 

attributed to the insufficient and inconsistent guidance given 

to the inferior federal courts - or, perhaps as I earlier mused, 

the behavior at issue here is incapable of being guided. In 

both Lynch and Allegheny County, the Supreme Court could 

not agree on the correct analysis, much less the correct 

application of a standard to the facts. After Capitol Square 

Review & Advisory Board v. Pinnette, 515 U.S. 753, 115 S. 

Ct. 2440 (1995), it now appears that a majority of the 

Supreme Court has at least accepted that governmentsponsored religious speech should be evaluated under the 

endorsement test. Until the Supreme Court decides a case in 

which a majority opinion of the Court utilizes a clear test to 

analyze a religious display, we are left with fact-specific 

inquiries that focus on the size, shape, and inferential 

message delivered by displays with religious elements, leaving 

almost any display that has a religious symbol in it open to 

challenge and any such display that has secular elements, no 

matter how trivial, open to judicial approval. 
Unfortunately, Justice Kennedy's prediction in Allegheny 

County has come true. "[A] jurisprudence of minutiae" relying 

on "little more than intuition and a tape measure" has 

resulted from the unclear analyses contained in the various 

opinions of the Supreme Court. Allegheny County, 492 U.S. 

at 674-76, 104 S. Ct. at 1359-60 (Kennedy, J., concurring in 

the judgment in part and dissenting in part). 

D. Lack of Consistency 

Were the foregoing the only reason for my disagreement, I 

may not have written a dissent; or if so, it would may well 

have suffered the same end as most others I write. However, 

there is another aspect of this case -- the fact that we have 

already addressed the display at issue here, and that, in my 

opinion, the majority's opinion slices our earlier holding too 

thinly. As I noted earlier, in light of the holding in Schundler 

I, the only question for us today is whether the additions of 

Santa, Frosty, a sleigh, and some Kwanzaa ribbons 

rehabilitate a display that we held to be an unconstitutional 

 41 

endorsement of religion. The majority, however, goes beyond 

this issue to question the central holding and reasoning 

underlying an earlier opinion of this Court--a close reading 

of the majority's holding reveals that the decision does not 

only rely on the presence of the figures or the Kwanzaa 

ribbons. Therefore, the majority would effectively overrule 

one of our own opinions: a task reserved for the en banc 

Court. Although this event would be cause for alarm in any 

case, my dismay is heightened here where the second opinion 

emanates from the exact litigation as the first. In this 

instance, the concern for the consistency of the law and the 

legitimacy our jurisprudence is intensified. Of course the law 

of religious displays is characterized by intensive fact analysis 

and questionable line drawing, and it is possible to disagree 

with our prior holding and analysis; however, to protect the 

integrity of our jurisprudence, I cannot condone the 

appearance of one panel overruling another. 

We have the duty not only to review cases and point out 

error, but also to provide guidance. We cannot ask others to 

respect the integrity of our decisions when we ourselves do 

not; but instead evade the reasoning of a prior panel in the 

same case. This case is unique in that we have already 

expressed our views on the precise issue and nearly identical 

facts that are the subject of this appeal. We stated, albeit in 

dictum, when addressing the exact display at issue here, that 

 [t]he token additions of the secular symbols do little to 

 alter the "context" or the focal points of the City's 

 display. We reiterate that Jersey City's display of the 
 creche at the seat of City government power 

 impermissibly conveyed a message of government

 endorsement of religion. And, in our view, the City's 

 addition of Santa, Frosty, and a red sled did little to 

 secularize that message. 

Schundler I, 104 F.3d at 1451. Although dictum, the 

language fulfills our responsibility to instruct and guide the 

District Court. 

 42 

On remand, the District Court scrupulously followed our 

instructions and reasoning and determined that the modified 

display violated the Establishment Clause. The District 

Judge made this determination, even though he may not 

have agreed with it, because he felt duty-bound, in an area 

of law fraught with uncertainty, to follow what he perceived 

to be the instructions we had given him. Now, reexamining 

the same display almost two years after Schundler I, this 

Court finds that the addition of the figures of Santa and 

Frosty, who was lashed to a tree next to the sleigh, do in fact 

neutralize the unconstitutional message of endorsement that 

had been conveyed by Jersey City for three decades and 

reverses itself concerning the appropriateness of our earlier 

instructions. This constitutional about-face in the same case 

troubles me greatly, strikes to the core of the legitimacy of 

our jurisprudence, and exposes us to well-earned criticism 

for inconsistency and for giving insufficient respect to an 

earlier instruction by the Court. 

E. Conclusion 

I conclude that the message of this display remains the 

same as that of the original display. On one side, the 

menorah and the Christmas tree tower over the Santa Claus. 

On the other side, a manger, representing the site where 

Jesus was born, dominates the scene. Next to the manger, 

a cart and a nativity scene reflect the action that myth says 

surrounded the birth of Jesus. Off to the side is the sleigh, 

and the snowman is placed behind and to the side of the 

scene. The dominant element of each side of the display is a 

religious symbol. Looking at the display as a whole, rather 

than focusing on only those elements that were also present 

in the constitutional displays in Lynch or Allegheny County, 

it seems to me that the dominant message of the display is 

an endorsement of religion. 

By underestimating the importance of the size, location, 

and number of the secular elements of the display, we have 

now essentially given governments free reign to design their 

religious displays in as sectarian a manner as possible. In 
 43 

addition, if the government should happen to cross the line 

and convey an unconstitutional message, it needs merely to 

add one or two more token secular figures and try again. I do 

not think this is the proper message to deliver. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 44 

 Appendix A 

 45 

 Appendix B 

 46 

 Appendix C 

 47