1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-13-1997

ACLU NJ v. Schundler

Precedential or Non-Precedential:

Docket 95-5865,95-5866,96-5023

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1

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 Nos. 95-5865, 95-5866 and 96-5023 

 ___________ 

AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, on behalf 

of its members; ROBERT LANDER; ADAM JACOBS; 

JOEL SOLOW; and ANN SORREL 

 vs. 

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 

 Bret Schundler, the City Council of 

Jersey City, and the City of Jersey 

City, New Jersey, 

 Appellants No. 95-5865 and

 No. 95-5866. 

 ___________ 

AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, on behalf 

of its members; ROBERT LANDER; ADAM JACOBS; 

JOEL SOLOW; and ANN SORREL 

 Appellants No. 96-5023

 vs. 

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 

 ___________ 

 APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW JERSEY 

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

 ___________ 
2

 ARGUED AUGUST 7, 1996 

 BEFORE: NYGAARD, LEWIS and McKEE, Circuit Judges. 

 (Filed January 13, 1997) 

 ___________ 

Kevin J. Hasson (ARGUED) 

The Becket Fund for Religious Liberty 

2000 Pennsylvania Avenue, N.W. 

Suite 3200 

Washington, DC 20006 

Attorney for Bret Schundler, the City Council of Jersey 

City, New Jersey, and the City of Jersey 

City, New Jersey

Ronald K. Chen 

Rutgers Constitutional Litigation Clinic 

Rutgers University School of Law 

15 Washington Street 

Newark, NJ 07102 

David R. Rocah (ARGUED) 

American Civil Liberties Union 

2 Washington Place 

Newark, NJ 07102 

Attorneys for American Civil Liberties Union of New 

Jersey, Robert Lander, Adam Jacobs, Joel 

Solow and Ann Sorrel

 ___________ 

 OPINION OF THE COURT 

 ___________ 

LEWIS, Circuit Judge. 

 Toward the end of each calendar year, people around the 

world celebrate what has come to be known as "the holiday 

season." Some do so by adorning their lawns with various 

religious or secular ornaments, which are usually intended to 
3

convey an individual's interpretation of the holiday season. 

Thus, while some may subtly express an acknowledgement of the 

season through a lighted tree or a candle in a window, others may 

prefer a dazzling array of lights, ornaments, and a cast of 

religious and secular characters. 

 Although the Constitution provides no guidance on 

matters of taste or aesthetics, it does provide protection for 

citizens to erect even the most energy-consuming, 

taste-challenged holiday display. In particular, the Free 

Exercise Clause guarantees the citizen's right to celebrate the 

season's religious origins. This right is reinforced by the 

Establishment Clause, which prevents the government from imposing 

its religious will upon its citizens. Thus, while the individual 

citizen can express himself or herself freely during the holiday 

season through the display of religious symbols, the 

Establishment Clause imposes constraints on the content of 

government-sponsored holiday displays. By restricting government 

displays, the Establishment Clause prevents government from 

sponsoring, celebrating, or endorsing religion. 

 The uncertain contours of these Establishment Clause 

restrictions virtually guarantee that on a yearly basis, 

municipalities, religious groups, and citizens will find 

themselves embroiled in legal and political disputes over the 

content of municipal displays. As a result, threats of municipal 

display lawsuits and restraining orders have become almost as 

much a part of the holiday season as last-minute shopping sprees. 
4

 In this case, we must determine whether the City of 

Jersey City, New Jersey, should be permitted to erect a display 

containing a crèche and a menorah on the lawn in front of its 

City Hall. We will affirm the district court's holding that the 

City's original display of the crèche and the menorah violated 

the Establishment Clause. In addition, we will hold that the 

district court applied the wrong standard to determine that the 

City's second display, which added Santa Claus, Frosty the 

Snowman, and a red sled to the crèche and menorah, did not 

violate the Establishment Clause. 

I. 

 Facts and Procedural History

 Appellees and Cross-Appellants, the American Civil 

Liberties Union of New Jersey ("ACLU") and four residents of 

Jersey City brought this action against Appellants and CrossAppellees, the City of Jersey City (the "City"), its mayor and 

its city council. The ACLU sought to preliminarily and 

permanently enjoin the City from erecting and maintaining a 

holiday display containing a crèche and a menorah on the lawn 

(also known as "City Hall Plaza") in front of its City Hall. The 

City has displayed the crèche and menorah in City Hall Plaza for 

at least the past thirty years. Both the crèche and menorah, as 

well as the property on which the displays are located, are owned 

by the City. 

 Jersey City displays its crèche, a representation of 

the Christian nativity scene, on the days immediately preceding 

and following Christmas. The crèche is a depiction of the day 
5

Jesus was born in a manger in Bethlehem. The City's display is 

approximately twelve feet long by eight feet wide and includes 

replicas of Joseph, Mary, Jesus, and the Three Wisemen, as well 

as traditional manger imagery such as farm animals and hay. The 

event depicted by the crèche has particular significance to the 

Christian religion, which worships Jesus as the Son of God and 

the Messiah. 

 Jersey City displays its menorah, a nine-branched 

candelabrum, during the Jewish holiday of Hanukkah. A menorah is 

used by Jews to commemorate the Miracle of the Oils, a seminal 

event in Jewish history that took place during the rededication 

of the Temple of Jerusalem. The lighting of the menorah is the 

central ritual of Hanukkah. As the Supreme Court recognized in 

Allegheny County v. ACLU, 492 U.S. 573, 587 & n.33 (1989), in 

contrast to the Christian celebration of Christmas, Hanukkah is 

not one of the central religious holidays of Judaism. 

 Jersey City customarily displays the menorah on the 

Plaza lawn to the left of the main entrance to City Hall and the 

crèche on the lawn to the right. Because the Hanukkah festival 

normally overlaps with the Christmas season, the menorah and 

crèche are usually displayed at the same time. In 1994, however, 

when the present action was initiated, Hanukkah fell unusually 

early on the calendar (November 28 to December 5). Consequently, 

the City took down the menorah display the day before it erected 

the crèche. The City also decorated an evergreen tree with 

Christmas ornaments on the Plaza lawn on December 14. Other than 
6

this tree, the crèche and menorah displays were unaccompanied by 

any other traditional secular symbols of the holiday season.1

 The ACLU sent a letter to Jersey City Mayor Bret 

Schundler asking the City to reevaluate its practice of 

displaying religious symbols on public property. In response, 

the City erected a sign adjacent to its display in front of City 

Hall on December 16, 1994, which 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." Thus, when the ACLU initiated this lawsuit, the Jersey 

City holiday display was comprised of a crèche, a Christmas tree, 

and the sign. 

 On December 21, 1994, the ACLU filed a complaint in the 

Superior Court of New Jersey seeking a declaratory judgment and a 

permanent injunction to prevent the City from displaying a 

menorah and a crèche on the Plaza in front of Jersey City City 

Hall during the winter holiday season. In their five-count 

complaint, the ACLU alleged violations of the First and 

Fourteenth Amendments of the United States Constitution, as well 

 

1. It is unclear whether the district court was aware that the 

1994 display contained the Christmas tree or whether it concluded 

that the tree was too far removed from the crèche and the menorah 

to be considered part of an integrated holiday display. See

Dist. Ct. Op. at 11-12. The Christmas tree is an evergreen tree 

that stands on the City lawn. During the holiday season, the 

City typically transforms the evergreen into a Christmas tree by 

decorating it with lights and other ornaments. The district 

court's possible confusion regarding the tree may have been 

caused by the fact that the tree was not visible in the 

photographs of the display that were entered into the record. 

For whatever reason, the district court did not consider the tree 

to be a component of the 1994 display. 
7

as three provisions of the New Jersey Constitution.2 The City 

removed the action to federal district court. On September 19, 

1995, both parties moved for summary judgment. 

 On November 28, 1995, the United States District Court 

for the District of New Jersey issued an order granting the 

ACLU's motion for summary judgment on counts one and three, 

sustaining their claims based upon the Establishment Clause of 

the First Amendment of the United States Constitution and the 

Religious Preference Clause of the New Jersey Constitution. ACLU 

of N.J. v. Schundler, No. 95-206, 1995 WL 869972, at *8 (D.N.J. 

Nov. 28, 1995). The district court entered a permanent 

injunction prohibiting the City from "erecting the crèche and 

menorah display described in the complaint in this action, or any 

substantially similar scene or display at the front entrance of 

the City of Jersey City City Hall or on other property owned, 

maintained, or controlled by the defendants in their official 

capacities." ACLU of N.J. v. Schundler, No. 95-206 (D.N.J. 

Nov. 28, 1995) (order granting injunction). 

 On December 13, 1995, despite the district court's 

injunction, Jersey City erected its annual holiday display in 

front of City Hall. The 1995 display consisted of the 

traditional crèche and menorah but also included a four-foot tall 

 

2. The five counts are based on alleged violations of the 

following: (1) the Establishment Clause of the First Amendment 

of the United States Constitution; (2) the Equal Protection 

Clause of the Fourteenth Amendment; (3) the Religious Preference 

Clause of Article I, Paragraph 4 of the New Jersey Constitution; 

(4) Article I, Paragraph 3 of the New Jersey Constitution; and 

(5) Article I, Paragraph 5 of the New Jersey Constitution, the 

state equivalent of the Federal Equal Protection Clause. 
8

plastic figure of Santa Claus, a four-foot tall plastic figure of 

Frosty the Snowman, and a red wooden sled. Frosty and the sled 

were placed on the same side of the Plaza as the crèche, and 

Santa was placed near the menorah and the Christmas tree. The 

1995 version of the crèche was slightly different from the 1994 

version. The figures in the crèche were taken out of the manger 

and placed in a circle to one side of the empty manager. The 

City Hall Plaza Christmas tree was also slightly different, as it 

was decorated with Kwanzaa symbols in addition to the usual 

lights and holiday ribbons. This modified 1995 display was also 

accompanied by two 20" x 30" signs bearing the City seal and the 

statement: "Through this display and others throughout the year, 

the City of Jersey City is pleased to celebrate the diverse 

cultural and ethnic heritage of its people." 

 In response to the City's 1995 display, the ACLU 

submitted applications to the district court for both a 

preliminary injunction against further display of the menorah and 

crèche and a judgment that the City was in civil contempt of the 

injunction issued November 28, 1995. On December 18, 1995, the 

district court issued an order denying the ACLU's request for a 

preliminary injunction and its petition for contempt. The court 

concluded that the addition of Santa and Frosty, as well as the 

sled and the Kwanzaa symbols, brought the City's display into 

compliance with the Establishment Clause. The district court 

thus modified its order of November 28, 1995, to require the City 

to maintain the additional secular holiday exhibits (i.e., 

Frosty, Santa, and the sled) in order to remain in compliance 
9

with the Establishment Clause. ACLU of N.J. v. Schundler, No. 

95-206 (D.N.J. Dec. 21, 1995) (order denying preliminary 

injunction). The district court, in entering the order, stated: 

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. 

Tr. at 12. 

 The City timely filed notices of appeal on December 20, 

1995, from both the November 28 order and injunction, as well as 

the December 18 order modifying that injunction. The City 

asserts that the district court erred by concluding both that its 

1994 holiday display of a crèche and a menorah was 

unconstitutional and that its 1995 holiday display was 

constitutional as modified. In other words, the City asserts 

that both its unmodified 1994 display and its modified 1995 

display were in compliance with the Establishment Clause. On 

January 4, 1996, the ACLU cross-appealed from the December 18, 

1995 order denying their second application for injunctive 

relief. The ACLU maintains that both displays violate the 

Establishment Clause of the First Amendment. 

II. 

 The Supreme Court's Display Cases

 The Establishment Clause of the First Amendment 

declares that "Congress shall make no law respecting an 

establishment of religion." U.S. Const. amend. I. In the 

Supreme Court's seminal modern Establishment Clause case, Everson 
10

v. Board of Education, 330 U.S. 1, 15 (1947), the Court 

recognized that "[n]either a state nor the Federal Government can 

set up a church. Neither can pass laws which aid all religions, 

or prefer one religion over another." The Court, paraphrasing 

Thomas Jefferson, stated that the First Amendment "has erected a 

wall between church and state." Id. 

 The wall-of-separation metaphor, however, overstates 

the actual level of separation of church and state the Court has 

required in its Establishment Clause jurisprudence. The Court 

has determined that government may acknowledge the nation's 

religious heritage and that not every law or practice that 

confers a benefit upon religious institutions is 

unconstitutional. See Committee for Pub. Educ. & Religious 

Liberty v. Nyquist, 413 U.S. 756, 760 (1973).3

 We have recognized that the much-maligned test arising 

out of Lemon v. Kurtzman, 403 U.S. 602 (1971) (the "Lemon test"), 

continues to provide the analytical framework courts must use to 

determine whether a particular practice violates the 

Establishment Clause. ACLU of N.J. v. Black Horse Pike Regional 

Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996) (in banc). In Black 

Horse Pike, we stated: 

The Lemon test has been the subject of critical debate 

in recent years, and its continuing vitality 

has been called into question by members of 

the Supreme Court and by its noticeable 

absence from the analysis in some of the 

 

3. One commentator has noted that the Supreme Court's 

Establishment Clause jurisprudence suggests that "the wall of 

separation is about to resemble the one that divided Berlin -- 

demolished, yet ghostly and evocative." Ira C. Lupu, The Trouble 

With Accommodation, 60 Geo. Wash. L. Rev. 743, 768 (1992). 
11

Court's recent decisions (including Lee). 

Nevertheless, Lemon remains the law of the 

land, and we are obligated to consider it 

until instructed otherwise by a majority of 

the Supreme Court. 

Id. at 1484. The Lemon test is a three-pronged test requiring 

the following: (1) the statute or government practice must have 

a secular purpose; (2) its practical effect must be one that 

neither advances nor inhibits religion; and (3) the statute or 

government practice must not foster "an excessive government 

entanglement with religion." Lemon, 403 U.S. at 612-13. 

 The Supreme Court first applied the Lemon test to a 

government-sponsored holiday religious display in Lynch v. 

Donnelly, 465 U.S. 668 (1984). In Lynch, a 5-4 decision, the 

Court upheld the constitutional validity of a winter holiday 

display maintained by the city of Pawtucket, Rhode Island. The 

display was situated in a private park. The display itself was 

owned by the city and included a crèche, a wishing well, a Santa 

Claus house (with a live Santa), a Christmas tree, reindeer 

pulling Santa's sleigh, candy-striped poles, a "Seasons 

Greetings" banner, hundreds of colored lights, live carolers, and 

cutout figures of a clown, an elephant, and a teddy bear. Id. at 

671. The Court, applying the Lemon test, found that: (1) the 

display, because it contained secular as well as religious 

symbols, had the legitimate secular purpose of recognizing and 

celebrating a national holiday; (2) the crèche did no more to 

advance or inhibit religion than the myriad government benefits 

and endorsements previously held constitutionally permissible; 
12

and (3) there was no evidence of administrative entanglement of 

religion. Id. at 680-85. 

 Justice O'Connor's concurrence in Lynch focused 

primarily on the second prong of the Lemon test. She styled her 

approach as an "endorsement test," which stated that 

"[e]ndorsement sends a message to nonadherents that they are 

outsiders, not full members of the political community, and an 

accompanying message to adherents that they are insiders, favored 

members of the political community." Id. at 688 (O'Connor, J., 

concurring). The context of the particular government practice 

was at the core of Justice O'Connor's endorsement test. She 

stated: 

Every government practice must be judged in its unique 

circumstances to determine whether it 

constitutes an endorsement or disapproval of 

religion. In making that determination, 

courts must keep in mind both the fundamental 

place held by the Establishment Clause in our 

constitutional scheme and the myriad, subtle 

ways in which Establishment Clause values can 

be eroded. Government practices that purport 

to celebrate or acknowledge events with 

religious significance must be subjected to 

careful judicial scrutiny. 

Id. at 694 (emphasis added). 

 In Allegheny County v. ACLU, 492 U.S. 573 (1989), the 

Supreme Court again considered the constitutionality of a 

holiday display. Allegheny County involved two different 

displays. The first display was a crèche located on the Grand 

Staircase of the Allegheny County, Pennsylvania Courthouse. Id. 

at 580. The second display was a menorah placed next to a 

Christmas tree and a sign saluting liberty, all of which were 
13

located just outside the Pittsburgh City-County Building. Id. at 

582. The crèche display was surrounded by a fence and a 

poinsettia floral frame and included small evergreen trees but 

did not include traditional secular holiday figures. The crèche 

had at its crest an angel bearing a banner that proclaimed 

"Gloria in Excelsis Deo," which translates to "Glory to God in 

the highest." Id. at 580 & n.5. The menorah, on the other hand, 

was placed next to a Christmas tree and a sign saluting liberty. 

 The Court's decision in Allegheny County spawned 

several opinions and two different holdings. A 5-4 majority held 

that the display of the crèche in the county courthouse violated 

the Establishment Clause. A 6-3 majority upheld the 

constitutional validity of the display of a menorah next to a 

Christmas tree outside the City-County Building.4

 Writing for the 5-4 majority, Justice Blackmun 

discussed the Court's move away from Lemon toward a "refined 

. . . definition of governmental action that unconstitutionally 

advances religion." Id. at 592. Focusing on the word 

"endorsement" put forth by Justice O'Connor's concurrence in 

Lynch, Justice Blackmun concluded that: 

The Establishment Clause, at the very least, prohibits 

government from appearing to take a position 

on questions of religious belief or from 

"making adherence to a religion relevant in 

any way to a person's standing in the 

political community." 

 

4. In Allegheny County, the ACLU specifically challenged the 

display of the menorah, not the Christmas tree. 
14

Id. at 594 (citing Lynch, 465 U.S. at 687 (O'Connor, J., 

concurring)). 

 Justices Blackmun and O'Connor represented the swing 

votes. Both Justices voted to allow the menorah and the 

Christmas tree display and to disallow the crèche display. To 

pinpoint the Court's reasoning in permitting the menorah and 

Christmas tree display while condemning the crèche display, we 

must analyze the rationale of the swing votes. 

 Justice Blackmun began his opinion (writing for the 

majority) by recognizing that the crèche display at issue in the 

case conveyed "praise to God in Christian terms [which] is 

indisputably religious -- indeed sectarian -- just as it is when 

said in the Gospel or in a church service." Id. at 598. Justice 

Blackmun then distinguished Lynch, flatly rejecting the notion 

that Lynch rendered crèche displays per se constitutionally 

permissible. On the contrary, Justice Blackmun emphasized that 

nothing in the context of the display at issue detracted from the 

crèche's religious message. In addition, Justice Blackmun 

recognized that the crèche sat on the Grand Staircase in the 

courthouse, which was "the main and most beautiful part of the 

building that is the seat of county government." Id. at 599. As 

such, 

[n]o viewer could reasonably think that it occupies 

this location without the support and 

approval of the government. Thus, by 

permitting the "display of the crèche in this 

particular physical setting," Lynch, 465 U.S. 

at 692 (O'Connor, J., concurring), the county 

sends an unmistakable message that it 

supports and promotes the Christian praise to 

God that is the crèche's religious message. 
15

Id. at 601. Thus, given the content and context of the crèche 

display, Justice Blackmun, writing for the majority of the Court, 

concluded that: 

Lynch teaches that government may celebrate 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. 

Id. at 602. 

 Later in his opinion Justice Blackmun, no longer 

writing for a majority of the Court, presented the reasons why he 

voted to allow the menorah and Christmas tree display. Justice 

Blackmun recognized that government celebration of Christmas and 

Hanukkah as religious holidays would violate the Establishment 

Clause,5 but concluded that Allegheny County's display of a 

Christmas tree and a menorah "recognizes 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. His 

conclusion was based largely on the fact that he considered the 

Christmas tree to be a secular symbol due to the fact that "many 

Americans place Christmas trees in their homes without 

subscribing to Christian religious beliefs." Id. at 616-17. 

Justice Blackmun also relied heavily on the spatial context of 

the display, commenting that: 

 

5. In this discussion, Justice Blackmun stated that "[t]he 

display of a menorah next to a crèche on government property 

might prove to be invalid." 492 U.S. at 615 n.61. 
16

The tree, moreover, is clearly the predominant element 

in the city's display. The 45-foot tree 

occupies the central position beneath the 

middle archway in front of the Grant Street 

entrance to the City-County Building; the 18-

foot menorah is positioned to one side. 

Given this configuration, it is much more 

sensible to interpret the meaning of the 

menorah in light of the tree, rather than 

vice versa. In the shadow of the tree, the 

menorah is readily understood as simply a 

recognition that Christmas is not the only 

traditional way of observing the winterholiday season. 

Id. at 617. 

 In her concurrence, Justice O'Connor also focused on 

the question of endorsement. Reviving the endorsement test she 

formulated in her concurrence in Lynch, Justice O'Connor 

presented the reasons for treating the crèche in Lynch

differently from the crèche in Allegheny County: 

In Lynch, I concluded that the city's display of a 

crèche in its larger holiday exhibit in a 

private park in the commercial district had 

neither the purpose nor the effect of 

conveying a message of government endorsement 

of Christianity or disapproval of other 

religions. The purpose of including the 

crèche in the larger display was to celebrate 

the public holiday through its traditional 

symbols, not to promote the religious content 

of the crèche. Nor, in my view, did 

Pawtucket's display of the crèche along with 

secular symbols of the Christmas holiday 

objectively convey a message of endorsement 

of Christianity. 

. . . I agree that the crèche displayed on the Grand 

Staircase of the Allegheny County Courthouse, 

the seat of county government, conveys a 

message to nonadherents of Christianity that 

they are not full members of the political 

community, and a corresponding message to 

Christians that they are favored members of 

the political community. In contrast to the 

crèche in Lynch, which was displayed in a 

private park in the city's commercial 

district as part of a broader display of 
17

traditional secular symbols of the holiday 

season, this crèche stands alone in the 

county courthouse. The display of religious 

symbols in public areas of core government 

buildings runs a special risk of making 

religion relevant, in reality or public 

perception, to status in the political 

community. 

Id. at 626 (O'Connor, J., concurring) (citations omitted) 

(emphasis added). 

 Justice O'Connor agreed with Justice Blackmun that the 

menorah and Christmas tree display was constitutionally 

permissible for "reasons which differ somewhat." Id. at 632. 

Justice O'Connor, like Justice Blackmun, concluded that a 

Christmas tree was a secular object but disagreed that the 

menorah was largely secular in the context of the display. She 

viewed the menorah as "the central religious symbol and religious 

object" of Hanukkah. Id. at 633. The question for her, 

therefore, was whether "the Christmas tree is a predominantly 

secular symbol and, more significantly, [whether it] obscures the 

religious nature of the menorah and the holiday of Hanukkah." 

Id. In answering this question, Justice O'Connor concluded: 

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 also celebrated at roughly the same 

time of the year, I conclude that 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. Although the religious and 

indeed sectarian significance of the menorah 

is not neutralized by the setting, this 

particular physical 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, 
18

negates any message of endorsement of that 

content. 

Id. at 635 (citations omitted). 

 The Supreme Court revisited the Establishment Clause 

recently in Capitol Square Review & Advisory Board v. Pinette, 

___ U.S. ___, 115 S. Ct. 2440, 132 L.Ed.2d 650 (1995). Again, 

the Court produced several opinions purporting to present the 

"correct" Establishment Clause analysis. Capitol Square is 

instructive to our analysis because, although it involves private 

religious expression in a traditional open forum, the Court 

indicated that it will likely apply an endorsement-test approach 

to determine the constitutionality of a public religious display. 

 In Capitol Square, the Court held that Ohio's denial of 

the Ku Klux Klan's application to display an unattended cross on 

the statehouse square could not be justified on the ground that 

granting a permit would have violated the Establishment Clause. 

Justice Scalia wrote for a 7-2 majority of the Court. Id. at 

2447. A second portion of Justice Scalia's opinion, in which he 

rejected the application of Justice O'Connor's endorsement test 

to the privately-sponsored cross display, was a plurality opinion 

joined by Chief Justice Rehnquist and Justices Kennedy and 

Thomas. Id. at 2447-48. Justice O'Connor, joined by Justices 

Souter and Brennan, wrote separately to apply the endorsement 

test but concluded that a reasonable observer would not attribute 

the religious message conveyed by the cross to the State. Id. at 

2451. Justice Stevens dissented, concluding that a reasonable 

observer would normally assume that the placement of a symbol of 
19

religious character before a seat of government would convey a 

message of state sponsorship. Id. at 2464. Justice Ginsburg 

also dissented, determining that the display of the cross would 

have carried a message of endorsement by the State. Id. at 2474. 

 Justice Scalia, writing for the plurality, 

distinguished Allegheny County and Lynch by stating: 

In Allegheny County we held that the display of a 

privately-sponsored crèche on the "Grand 

Staircase" of the Allegheny County Courthouse 

violated the Establishment Clause. That 

staircase was not, however, open to all on an 

equal basis, so the County was favoring 

sectarian religious expression. We expressly 

distinguished that site from the kind of 

public forum at issue here, and made clear 

that if the staircase were available to all 

on the same terms, "the presence of the 

crèche in that location for over six weeks 

would then not serve to associate the 

government with the crèche." In Lynch we 

held that a city's display of a crèche did 

not violate the Establishment Clause because, 

in context, the display did not endorse 

religion. The opinion does assume . . . that 

the government's use of religious symbols is 

unconstitutional if it effectively endorses 

sectarian religious belief. But the case 

neither holds nor even remotely assumes that 

the government's neutral treatment of private 

religious expression can be unconstitutional. 

Id. at 2448 (citations omitted). 

 Although the plurality refused to apply the endorsement 

test to the privately-sponsored cross display in Capitol Square, 

it acknowledged that the endorsement test would be properly 

employed to test the constitutionality of government speech. Id.

at 2448-49. Writing for the plurality, Justice Scalia noted, 

"[w]here we have tested for endorsement of religion, the subject 

of the test was . . . expression by the government itself
20

. . . ." Id. at 2447 (citation omitted). Thus, Capitol Square

indicates that at least a majority of the Court would apply an 

endorsement test to determine the constitutionality of a 

government-sponsored religious display on government property. 

 In light of the Supreme Court's decisions in Allegheny 

County and Capitol Square, we conclude that the endorsement test 

is the proper analysis to apply to Jersey City's display of 

religious symbols on city property.6 Under the facts of this 

case, we need not reach the question debated by the members of 

the Court in Capitol Square of whether the endorsement test 

should be limited in application to government speech, because 

the religious symbols at issue here are owned and displayed by 

the city government on city government property.7

 

6. Again, it is not our intention to depart from this Court's 

recent pronouncement in ACLU of New Jersey v. Black Horse Pike 

Regional Board of Education, 84 F.3d 1471, 1484 (3d Cir. 1996) 

(in banc), that "Lemon remains the law of the land" as the 

governing test for Establishment Clause cases. Rather, we merely 

reiterate that in Establishment Clause challenges to religious 

displays, the Supreme Court has emphasized that the endorsement 

test -- a refinement of the "effects" prong of Lemon -- should be 

the focus of our analysis. 

7. We do not mean to imply, however, that a display identical 

to the one presented by Jersey City (if privately sponsored) 

would necessarily withstand constitutional scrutiny. Rather, we 

merely point out that the display at issue here does not fall 

within the so-called exception to the endorsement test put forth 

by the plurality in Capitol Square. See Capitol Square, 115 S. 

Ct. at 2451 (O'Connor, J., concurring). 
21

III. 

 The Original Display

 A. Government Erection of a Crèche

 Under the endorsement test, a display violates the 

Establishment Clause if, in its particular setting, the display 

is "sufficiently likely to be perceived by adherents of the 

controlling denominations as an endorsement, and by non-adherents 

as a disapproval of their individual religious choices." 

Allegheny County, 492 U.S. at 597. In applying the endorsement 

test to Jersey City's display, we must consider the particular 

effects of its display of a crèche. 

 One of the principles that emerges from the shifting 

pluralities of Allegheny County is that government erection of a 

crèche creates an inherent risk of perceived endorsement. The 

crèche, which depicts the event that lies at the very core of 

Christianity, is an unambiguous religious symbol.8 Indeed, 

Justice O'Connor in Allegheny County recognized that a crèche is 

"the central religious symbol of the Christmas holiday." Id. at 

627. 

 A crèche represents the Christian belief that Jesus was 

born to the Virgin Mary to lead humankind on a path toward 

salvation and redemption. Yet Jersey City would have us believe 

that the symbol of the crèche has achieved such a level of 

 

8. One commentator suggests that the Supreme Court's decisions 

in the display cases are guided by their view of the messages 

conveyed by particular religious symbols and whether these 

symbols are "pure" or "ambiguous." Calvin R. Massey, Pure 

Symbols and the First Amendment, 17 Hastings Const. L.Q. 369, 

379-82 (1990). 
22

secular status that it is religiously benign. We are not so 

persuaded. The mere fact that a religious symbol is pervasively 

displayed during the holiday season does not diminish its 

religious significance. A crèche unambiguously represents a 

belief that is not universally shared by the citizens of this 

country. In fact, many citizens believe that Jesus may only be 

understood as a Hebrew prophet. For some devout observers of 

their respective faiths, it is heresy to ascribe a divine 

character or purpose to Jesus' life or death. Indeed, as Justice 

Brennan recognized in his dissent in Lynch, "[F]or Christians, 

that path [toward salvation and redemption] is exclusive, 

precious, and holy. But for those who do not share these 

beliefs, the symbolic reenactment of the birth of a divine being 

who has been miraculously incarnated as a man stands as a 

dramatic reminder of their differences with Christian faith." 

Lynch, 465 U.S. at 708 (Brennan, J., dissenting). 

 When government chooses to speak by erecting a crèche 

on government property, the principles at the core of the 

Establishment Clause are clearly implicated. See Capitol Square, 

115 S. Ct. at 2448 ("In Allegheny County, we held that the 

display of a privately-sponsored crèche on the `Grand Staircase' 

of the Allegheny County Courthouse violated the Establishment 

Clause. That staircase was not, however, open to all on an equal 

basis, so the County was favoring sectarian religious 

expression."). By erecting a crèche itself, on city property, a 

city sends a stronger message of endorsement of religion than 

when it merely provides a forum for private religious speech. In 
23

the former context, the government is effectively conveying the 

message that "we celebrate the holiday season by recognizing the 

birth of Christ." As Justice O'Connor noted in Allegheny County, 

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

government buildings runs a special risk of making religion 

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

political community." Allegheny County, 492 U.S. at 626 

(O'Connor, J., concurring). Accordingly, we conclude that Jersey 

City's display of a crèche on City Hall Plaza -- the very seat of 

Jersey City government -- conveyed a message of religious 

endorsement. 

 Further, we note that the expenditure of public funds 

to erect and maintain a religious display directly implicates the 

Establishment Clause. Jersey City's display was erected and 

maintained with public funds. If a city taxpayer objected to the 

religious display, he or she could not have opted out of 

contribution to the display, even if fundamentally repugnant to 

his or her own beliefs. Of course, taxpayers often exercise 

little control over how the government spends its money on a 

daily basis, but the Establishment Clause presents unique 

constraints on the expenditure of public funds for religious 

purposes.9 Most importantly, the Establishment Clause requires 

the government to remain neutral towards religion in its 

expenditure of public funds. 

 

9. In recognition of these constraints, the Supreme Court has 

acknowledged taxpayer standing in the Establishment Clause 

context, while rejecting taxpayer standing in others. See Flast 

v. Cohen, 392 U.S. 83 (1968). 
24

 Here, Jersey City expressed a religious preference by 

erecting a religious display through the expenditure of taxpayer 

dollars.10 Moreover, 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. In other words, Jersey City's use of 

public funds to erect and maintain its display increased the 

"risk of making religion relevant . . . to status in [Jersey 

City's] political community." Allegheny County, 492 U.S. at 626 

(O'Connor, J., concurring). 

 Jersey City's display of a crèche was accompanied by a 

menorah, a sign, and a Christmas Tree. Jersey City maintains 

that this context alters the message of endorsement conveyed by 

the display of the crèche. We disagree. The menorah is a 

religious symbol. And when displayed with a crèche, the 

menorah's religious significance is emphasized. Moreover, the 

token inclusion of the Christmas tree does little to mitigate the 

religious message of the crèche and the menorah. Thus, the 

display cannot be viewed as anything but a constitutionally 

impermissible dual endorsement of Christianity and Judaism. 

 Read together, Lynch, Allegheny County, and Capitol 

Square emphasize the importance of perceived government 

endorsement of religion in Establishment Clause analysis. A 

 

10. For an interesting discussion of the Establishment Clause 

implications of using taxpayer dollars to fund religious 

displays, see generally Jesse H. Choper, Securing Religious 

Liberty: Principles for Judicial Interpretation of the Religion 

Clauses (1995). 
25

comparison of Jersey City's display with the displays involved in 

Allegheny County and Lynch reinforces the conclusion that Jersey 

City's original display impermissibly endorsed religion. In 

Allegheny County, a privately-owned nativity scene was displayed 

on the main staircase of the county courthouse, bounded by a 

wooden fence, poinsettias, and a plaque stating "This Display 

Donated by the Holy Name Society." Allegheny County, 492 U.S. at 

580. Thus, even with a sign proclaiming private ownership of the 

display, the Court held that the display, in its context (on the 

grand staircase of the Allegheny County Courthouse), communicated 

state endorsement of religion. In Lynch, the government-owned 

and maintained crèche was part of a "winter wonderland" display 

and was situated in a privately-owned park not located near any 

visible seat of government. Because there were no external 

indicia of government sponsorship of the crèche, the risk of 

perceived endorsement was significantly lessened. And in Capitol 

Square, the Court upheld the constitutionality of the display of 

a privately-sponsored cross in a public square because the 

government was not "sponsoring" the speech. 

 In this case, Jersey City not only owned and 

maintained the crèche but chose to erect it on City Hall Plaza -- 

the very seat of Jersey City government. Moreover, the sign that 

accompanied the display proudly proclaimed that the display was 

sponsored by Jersey City. Like the crèche in Allegheny County, 

the crèche and the menorah were located prominently at the 

visible seat of government power. The City placed the display 

such that all visitors to City Hall were confronted with 
26

prominent religious symbols. The Establishment Clause prohibits 

the government, when speaking, from expressing favoritism towards 

a particular religion. By using the City Hall Plaza as a forum 

from which to communicate its endorsement of Christianity and 

Judaism, Jersey City violated the Establishment Clause.11

 B. The City's Diversity/Pluralism Justification

 The City maintains that its celebration of many 

different religions throughout the year should be considered the 

"context" in which the crèche and the menorah should be viewed, 

effectively converting its religious displays from "endorsement 

of religion" into a "celebration of diversity." 

 There are three reasons why the City's 

diversity/pluralism justification fails to pass constitutional 

muster. First, notwithstanding Justice O'Connor's recognition of 

the values of religious pluralism in Allegheny County, government 

endorsement of one or any number of different religions is 

unconstitutional. Second, a reasonable observer cannot be 

presumed to be aware of the various religious and cultural 

celebrations that take place throughout the year in Jersey City. 

 Third, the City's policy of celebrating many different 

religions, while perhaps laudable, is a classic example of 

 

11. The ACLU also challenged the constitutionality of the 

display under the New Jersey Constitution. In interpreting the 

New Jersey Establishment Clause, New Jersey courts have relied on 

Federal Establishment Clause jurisprudence. See Ran-Dav's County 

Kosher, Inc. v. State, 608 A.2d 1353, 1358 (N.J. 1992). Thus, we 

need not consider separately whether the displays are consistent 

with the New Jersey Constitution. 
27

government entanglement with religion. We will discuss each of 

these points in detail below. 

 (1) Endorsement of More Than One Religion

 The City, in support of its diversity/pluralism 

justification, relies on the following language from Justice 

O'Connor's concurrence in Allegheny County: 

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 also celebrated at roughly the same 

time of the year, I conclude that 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. 

* * * 

A reasonable observer would, in my view, appreciate 

that the combined display is an effort to 

acknowledge the 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. In short, in the holiday 

context, this combined display in its 

particular physical setting conveys neither 

an endorsement of Judaism or Christianity nor 

disapproval of alternative beliefs, and thus 

does not have the impermissible effect of 

"mak[ing] religion relevant, in reality or 

public perception, to status in the political 

community." 

Allegheny County, 492 U.S. at 635-36 (quoting Lynch, 465 U.S. at 

692 (O'Connor, J., concurring)). The City maintains that 

Allegheny County stands for the proposition that government 

celebration of different religions is not in fact "endorsement" 

of religion that runs afoul of the Establishment Clause. 
28

 The City misreads Justice O'Connor's emphasis on 

pluralism and diversity. The menorah in Allegheny County, while 

viewed by Justice O'Connor as a religious symbol, was placed next 

to a Christmas Tree, which the Court (including Justice O'Connor) 

considered a secular symbol. Thus, Justice O'Connor concluded 

that the display, in context, endorsed neither Judaism or 

Christianity. The secular nature of the Christmas tree, 

concluded Justice O'Connor, converted the display into a 

celebration of diversity and pluralism and distinguished it from 

an endorsement of religion. 

 But it is important to note that Justice O'Connor's 

pluralism/diversity justification for the menorah and Christmas 

tree display in Allegheny County was not based on the fact that 

two different religions were represented in a display. She 

emphasized that the Christmas tree created a secular context 

emphasizing diversity and pluralism. It remains clear that 

government celebration of one particular religion, or even more 

than one religion, can constitute government endorsement of 

religion that violates the Establishment Clause by "sending a 

clear message to nonadherents that they are outsiders or less 

than full members of the political community." Allegheny County, 

492 U.S. at 627 (O'Connor, J., concurring). We do not suggest 

that all government celebrations of diverse cultures need be free 

of all religious content. Indeed, such celebrations would likely 

be impossible given religion's inherent role in many different 

cultures. We merely recognize that government celebration of 

more than one religion cannot magically transform a government 
29

endorsement of religion into a secular "celebration of diversity 

and pluralism." 

 (2) The Perspective of the "Reasonable Observer"

 The City argues that the reasonable, informed observer 

of the original Jersey City display should be presumed to be 

aware of the City's year-round celebration of different cultures 

and religions. According to the City, it should be apparent to 

such an informed observer that the display is a celebration of 

culture and not an endorsement of religion. 

 In discerning here the viewpoint of the "reasonable 

observer" we are asked to consider whether the observer is aware 

of the "history and context" of the challenged government 

activity.12 Justice O'Connor, for one, has not hesitated to 

impute a significant amount of knowledge of "history and context" 

 

12. Although we agree with the City that the endorsement test 

necessarily focuses on the perception of some formulation of a 

"reasonable observer," we note the nearly impossible task of 

giving content to the hypothetical reasonable observer in our 

multicultural society. In his dissent in Allegheny County, 

Justice Brennan identified the risk of subjective construction of 

the viewpoint of the "reasonable observer": 

 I shudder to think that the only "reasonable 

observer" is one who shares the particular 

views on perspective, spacing, and accent 

expressed in Justice Blackmun's opinion, thus 

making analysis under the Establishment 

Clause look more like an exam in Art 101 than 

an inquiry into constitutional law. 

Allegheny County, 492 U.S. at 573 (Brennan, J., dissenting). 

 Indeed, in Capitol Square the concurring and dissenting 

Justices struggled over the definition of "reasonable observer," 

disagreeing over just how informed a reasonable observer needed 

to be. See Kathleen M. Sullivan, Parades, Public Squares and 

Voucher Payments: Problems of Government Neutrality, 28 Conn. L. 

Rev. 243, 252-53 (1996). 
30

to the reasonable observer. See Capitol Square, 115 S. Ct. at 

2455 (O'Connor, J., concurring); Wallace v. Jaffree, 472 U.S. 38, 

76 (1985) (O'Connor, J., concurring). 

 Justice Stevens, in contrast, has rejected Justice 

O'Connor's "ideal" reasonable observer, finding her conception to 

be more akin to a "well-schooled jurist" than a mere reasonable 

observer. Capitol Square, 115 S. Ct. at 2466 n.5 (Stevens, J., 

dissenting). Explicitly rejecting the assumption that reasonable 

viewers are aware of the history of the public forum at issue, 

Justice Stevens noted that Justice O'Connor "apparently would not 

extend Establishment Clause protection to passers by who are 

unaware of Capitol Square's history." Id. at 2470 n.14. 

 Moreover, several courts of appeal have refused to 

allow the "history and context" of a practice to trump an 

otherwise clear endorsement of religion that would be apparent to 

a so-called reasonable observer. See Robinson v. City of Edmond, 

68 F.3d 1226, 1232 (10th Cir. 1995) ("[A]n appeal to history 

. . . is indeed an argument which could always `trump' the 

Establishment Clause, because of the undeniable significance of 

religion and religious symbols in the history of many of our 

communities."); Ellis v. City of La Mesa, 990 F.2d 1518, 1525-26 

(9th Cir. 1993) (refusing to consider the "historical 

significance" of a municipality's display of a cross in a city 

park); Harris v. City of Zion, 927 F.2d 1401, 1415 (7th Cir. 

1991), cert. denied, 505 U.S. 1229 (1992) (striking a city seal 

containing Christian symbols and concluding that "[n]o appeal to 
31

history can abate [a sectarian] message when the images in the 

seal are abstract symbols of a particular Christian sect"). 

 We agree with Justice Stevens that assuming the 

reasonable observer is aware of "history and context" when 

viewing a municipality's religious display is "a highly unlikely 

supposition." Capitol Square, 115 S. Ct. at 2470 (Stevens, J., 

dissenting). In our view, when testing for endorsement, we must 

take into account the perspective of those citizens within the 

community who hold minority religious views.13

 Thus, we cannot agree that an observer of the display 

who is a new resident to Jersey City, has no understanding of the 

history of the community, but has a strong sense of his or her 

own faith, a faith not depicted in the display, is somehow less 

"reasonable" an observer than the Christian or Jewish observer 

who has lived in Jersey City for twenty years. It follows that 

this new resident of Jersey City should be entitled to no less 

Establishment Clause protection than a long-time resident. 

 Accordingly, we conclude that the reasonable observer 

of Jersey City's display cannot be presumed to have knowledge of 

Jersey City's different cultural and religious celebrations. The 

City argues that the "reasonable observer" sees a "time lapse 

photograph" depicting Jersey City's various celebrations. This 

is a view that departs from reality. A reasonable observer of 

 

13. For further discussion of this point, see Kent Greenawalt, 

Quo Vadis: The Status and Prospects of "Tests" Under the 

Religion Clauses, 8 Sup. Ct. Rev. 323, 374 (1995) (noting that 

the reasonable observer "should have only an ordinary amount of 

knowledge of the law and of the history of symbols in public 

places"). 
32

Jersey City's display stands before City Hall, flanked by two 

religious symbols: the crèche and the menorah. There are no 

other visual components, other than the sign proclaiming the 

City's celebration of diversity, that can give the observer the 

"time-lapse photograph" effect.14 A general awareness of the 

City's celebration of diversity throughout the year is obscured 

by the physical presence of the symbols of Christianity and 

Judaism before City Hall. 

 (3) Entanglement

 The City also argues that its erection of the crèche 

and the menorah are part of an overall plan to celebrate 

different religions and cultures. This argument must also fail. 

 Put simply, Jersey City has pursued a quintessential type of 

government action that "fosters an excessive entanglement with 

religion." Lemon v. Kurtzman, 430 U.S. 602, 613 (1971). 

 In Aguilar v. Felton, 473 U.S. 402 (1985), the Court 

reaffirmed the continuing vitality of the "excessive 

entanglement" prong of the Lemon test. Aguilar involved a 

challenge to New York City's provision of funding for public 

 

14. Counsel for the City rely heavily on the "secularizing" 

power of the sign accompanying the display. Again, the sign 

read, "[t]hrough 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 City Br. 17; City 

Reply Br. 11; Oral Arg. Tr. 20, 22, 58, 63, 66. The Supreme 

Court has recognized, however, that "no sign can disclaim an 

overwhelming message of endorsement." Allegheny County, 492 U.S. 

at 619. We conclude, therefore, that the sign cannot 

"secularize" the display, or dilute its message of endorsement, 

merely because it conveys to the reasonable observer that the 

City engages in year-round celebrations of different cultures and 

religions. 
33

school instructors who taught remedial classes to private school 

students in private school classrooms. An overwhelming majority 

of the participating private schools were religiously affiliated. 

 New York City adopted a supervisory system designed to monitor 

the classes to ensure that public funds were not used to 

inculcate religious beliefs. In holding that New York City's 

program violated the Establishment Clause, the Court stated: 

This pervasive monitoring by public authorities in the 

sectarian schools infringes precisely those 

Establishment Clause values at the root of 

the prohibition of excessive entanglement. 

Agents of the city must visit and inspect the 

religious school regularly, alert for the 

subtle or overt presence of religious matter 

in Title I classes. In addition, the 

religious school must obey these same agents 

when they make determinations as to what is 

and what is not a "religious symbol" and thus 

off limits in a Title I classroom. In short, 

the religious school, which has a primary 

purpose of the advancement and preservation 

of a particular religion must endure the 

ongoing presence of state personnel whose 

primary purpose is to monitor teachers and 

students in an attempt to guard against the 

infiltration of religious thought. 

Id. at 413 (citation omitted) (emphasis added). 

 Even if we were to conclude that the City could avoid 

the "endorsement" of religion by implementing its plan to 

celebrate many different religions and cultures, it could not 

avoid an excessive entanglement with religion in the 

implementation. Such a plan would necessitate judgments 

regarding which religious and cultural holidays to celebrate, 

which religious and cultural symbols appropriately conveyed the 

proper non-sectarian message, and decisions regarding the 

relative importance and cultural components of different 
34

religions. In carrying out this plan, Jersey City Mayor 

Schundler would have to address significant questions regarding 

specific religions: Should a rabbi and a priest be consulted 

when erecting the menorah and the crèche? Should a ceremony 

accompany the erection of these religious symbols? Should the 

City employ a Muslim cleric during Ramadan Observance Month to 

avoid offending a theological protocol of Islam?15

 Another troubling aspect of entanglement pinpointed by 

the Court in Aguilar is the very proper and legitimate concern 

that governmental involvement in such decisions will alienate 

certain members of the political community. The Court commented 

that: 

The numerous judgments that must be made by agents of 

the city concern matters that may be subtle 

and controversial, yet may be of deep 

religious significance to the controlling 

denominations. As government agents must 

make these judgments, the dangers of 

political divisiveness along religious lines 

increase. 

Aguilar, 473 U.S. at 414. 

 

15. Our analysis does not require consideration of the motives 

of Mayor Schundler himself. Our concern runs deeper and is 

focused on the dangers associated with placing the power to make 

religious judgments in the hands of government officials. On 

this point, we remain guided by Justice Black, who wrote: 

 The Establishment Clause thus stands as an 

expression of the principle on the part of 

the Founders of our Constitution that 

religion is too personal, too sacred, too 

holy, to permit its "unhallowed perversion" 

by a civil magistrate. 

Engel v. Vitale, 370 U.S. 421, 432 (1962). 
35

 Jersey City, in implementing its plan to celebrate the 

diversity and pluralism of various religions and cultures, would 

obviously encounter the types of decisions that would produce 

political divisiveness. Many adherents of religions other than 

Christianity and Judaism would likely feel politically alienated 

if the City were unwilling to erect a display commemorating their 

particular religion. Moreover, the City's continuing role in 

deciding how to celebrate various religions will be, in reality, 

inevitably guided by politics. For example, it would be unlikely 

that Mayor Schundler (or any other head of a municipality) would 

erect a display that would offend a majority of his 

constituents.16 That such a political calculation is possible 

confirms that these types of religious judgments should not be 

placed in the hands of an elected official. 

 Thus, we conclude that the City's plan to celebrate 

many different religions and cultures would amount to a 

constitutionally impermissible entanglement of government and 

religion. 

IV. 

 The Second Display (adding Santa, Frosty, and the Red Sled)

 The district court, in its December 21, 1995 order, 

permitted Jersey City's display of a crèche, a menorah, Frosty 

 

16. Justice Powell identified this as a concern in his 

concurrence in Aguilar, commenting that "[i]n States . . . that 

have large and varied sectarian populations, one can be assured 

that politics will enter into any state decision to aid parochial 

schools." Aguilar, 473 U.S. at 416 (Powell, J., concurring). 
36

the Snowman, Santa, and a red sled. As we noted earlier, the 

district court stated: 

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. 

Tr. at 12. The district court modified its November 28 order by 

requiring Jersey City to maintain the additional secular figures 

(Frosty and Santa) in the display. If Frosty, Santa, and/or the 

sled were stolen or destroyed, they were to be replaced within 

twenty-four hours. 

 Without opinion, the district court apparently 

determined that the presence of Frosty, Santa, and a sled 

cleansed the display of its sectarian qualities. In so holding, 

the district court summarily concluded that the modified display 

was constitutional under Lynch and Allegheny County. ACLU of 

N.J. v. Schundler, No. 95-206 (D.N.J. Dec. 21, 1995) (order 

denying preliminary injunction). 

 This summary conclusion is particularly troubling given 

the Supreme Court's emphasis in Lynch and Allegheny County on the 

importance of analyzing the specific context of the challenged 

display. The district court offered no assessment of the 

demystifying powers of Frosty the Snowman or Santa Claus, or even 

the sled. That is, the court did not explain how the context of 

the second display "demystified" the impermissible religious 

content (the crèche and menorah) of the original display. 

Moreover, we are puzzled as to the origin of the district court's 
37

"demystification" (or "desanctification") analysis. Under 

Allegheny County, the relevant analysis focuses on whether the 

content and context of the display would convey a message of 

government endorsement of religion. While true that the Court in 

Allegheny County found the menorah and Christmas tree display to 

convey a secular message, the Court has never suggested that the 

demystification powers of certain secular figures could diminish 

the religious message conveyed by sectarian symbols.17 As such, 

we conclude 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 crèche and the 

menorah.18

 We also note that, in our view, Allegheny County does 

not compel the result reached by the district court. Allegheny 

County did not create a per se rule that a "secular" symbol 

placed next to a "religious" symbol is constitutional. The 

content of the Allegheny County display was arguably secular. 

While Justice O'Connor recognized that the menorah is a religious 

 

17. If adopted, the district court's "demystification" approach 

would lead federal courts and municipal officials to engage in an 

ad hoc, arbitrary, constitutional guessing game over the relative 

secularizing "power" of individual symbols. For example, a city 

mayor would be forced to decide whether the addition of a plastic 

candy cane would be enough to bring a crèche display in 

compliance with the Establishment Clause, or whether he or she 

would also need to add a string of lights. As a practical 

matter, we find it unlikely that these difficult questions of 

constitutional magnitude can be solved by a plastic Santa or 

Frosty. 

18. We note that both the ACLU and the City agree that the 

district court's "demystification" approach was flawed. ACLU Br. 

at 38; City Br. at 15. 
38

symbol, she also recognized that a depiction of a Christmas tree 

and a menorah may invoke an image of different individuals 

celebrating the holidays at the end of the calendar year. 

Allegheny County, 492 U.S. at 635 (O'Connor, J., concurring). 

This time of year is, at least in this country, widely regarded 

as "the holiday season." Thus, Justice O'Connor recognized that 

a Christmas tree and a menorah, in the context they were 

presented in Allegheny County, endorsed only a secular 

recognition of the holiday season. Id. at 635-36. 

 Government display of a crèche, on the other hand, 

cannot convey a meaning separate from the very act it is meant to 

portray. A crèche depicts the Birth of Christ, the event that 

lies at the foundation of Christianity. In Allegheny County, the 

Court determined that displays containing a crèche 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 crèche 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. 

 As we have discussed, 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. In 

ACLU of New Jersey v. Black Horse Pike Regional Board of 

Education, we discussed Allegheny County and Lynch to illustrate 
39

"the importance of the context of a challenged practice" in 

conducting an Establishment Clause analysis. ACLU of N.J. v. 

Black Horse Pike Reg. Bd. of Educ., 84 F.3d 1471, 1484 (3d Cir. 

1996). The context of Jersey City's second display is as 

follows: on one side, a large menorah stands about ten feet from 

a four-foot plastic Santa and a Christmas tree decorated with 

lights and Kwanzaa symbols; on the other side, the characters of 

the crèche are huddled off to the side of a manger, with Frosty 

in the background bearing witness and separated from the crèche 

by a red sled. The 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 crèche 

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.19

 

19. The ACLU, in its brief, artfully addresses the district 

court's Establishment Clause analysis by stating that: 

 [A]t most, a reasonable observer would construe 

[Frosty and Santa] to be background witnesses 

to the Miracle of the Oils and the Birth of 

Christ, respectively. However confusing the 

presence of a snowman in Bethlehem may be 

from a canonical perspective, a reasonable 

observer informed of the history and context 

of religious displays in front of City Hall 

would invariably characterize them for what 

they 

 are - attempts at evasion of constitutional prohibitions 

through superficial secular tokenism. 

ACLU Br. at 17. 
40

 The difficulty presented by the district court's 

hypertechnical Establishment Clause analysis is exacerbated by 

its requirement in the injunction that Santa, Frosty, and the 

sled were to be replaced within twenty-four hours if any of them 

were removed from the display. Apparently, the district court 

found the constitutional "demystification" powers of Frosty, 

Santa, and the sled to be so great that their absence for one day 

would transform the display back into a government endorsement of 

religion. This reinforces the plain fact that the district court 

was convinced that the presence of two, four-foot plastic 

figurines of Frosty and Santa, along with a red wooden sled, 

"demystified" the religious message conveyed by the City's 

erection of a display commemorating the Birth of Christ and the 

Miracle of the Oils. We conclude that this simply cannot form 

the basis of sound constitutional analysis. 
41

V. 

 Accordingly, we hold that the City of Jersey City's 

display of a crèche and a menorah on the lawn in front of its 

City Plaza violated the Establishment Clause. We also hold that 

the district court erred in modifying the injunction based upon 

its conclusion that the addition of Frosty, Santa, and a red sled 

"demystified" the religious meaning of the crèche and the menorah 

and rendered the display constitutional. As such, we vacate the 

district court's modified injunction order and remand the case so 

that the district court can consider, consistent with the 

standards set forth in this opinion, whether the modified display 

was constitutional. 
42

American Civil Liberties Union of New Jersey, et al. v. Bret 

Schundler, et al. Nos. 95-5865, 95-5866 and 96-5023 

McKee, Circuit Judge Concurring. 

 I agree with the reasoning of my colleagues and 

therefore join in their opinion. However, I think it necessary to 

state that I think that our analysis here should be defined by 

the parameters of Allegheny County v. ACLU, 492 U.S. 573 (1989); 

Lynch v. Donnelly, 465 U.S. 668 (1984); and Lemon v. Kurtzman, 

403 U.S. 602 (1971). I do not think that Capitol Square Review & 

Advisory Board v. Pinette, ___ U.S. ___, 115 S. Ct. 2440, 132 

L.Ed.2d 650 (1995), assists us. 

 In Capitol Square, a “10-acre, state-owned plaza 

surrounding the Statehouse” in the capitol city of Ohio had been 

“used for public speeches, gatherings, and festivals advocating 

and celebrating a variety of causes, both secular and religious” 

for over a century. Id. at 2444. By statute, the square was 
43

available for use by “the public . . . for free discussion of 

public questions, or activities of broad public purpose,” and the 

Capitol Square Review and Advisory Board was given the 

responsibility for regulating public access. (internal 

quotations omitted). Id. at 2440. That Board rejected a request 

by Donnie Carr, the local leader of the Klu Klux Klan, to erect a 

display consisting of an unattended cross, and Carr appealed to 

the federal courts alleging a violation of the Constitution. In 

reviewing that decision, the Supreme Court limited itself to the 

Establishment Clause issue even though Carr argued that the 

state’s real reason for rejecting the request was its disapproval 

of the Klan’s political views. Thus, the only issue the Court 

discussed was the state’s right to limit private speech on public 

property that had historically been used as an open public forum. 

 The Court began its analysis by noting that 

“[r]espondents’ religious display in Capitol Square was private 

expression.” Id. at 2446. That expression was clearly entitled to 

protection regardless of content. “[W]e have not excluded from 

free-speech protections religious proselytizing. . . .” Id. The 

city defended its rejection of the requested display by arguing 

that it had an interest in avoiding official endorsement of 

Christianity under the Establishment Clause. The Court relied in 

part upon the “endorsement test” and its prior holding in 

Allegheny and Lynch to reject that position. 

We find it peculiar to say that government 

‘promotes’ or ‘favors’ a religious display by 

giving it the same access to a public forum 

that all other displays enjoy. . . . And as a 

matter of Establishment Clause jurisprudence, 
44

we have consistently held that it is no 

violation for government to enact neutral 

policies that happen to benefit religion. 

Id. at 2447. Accordingly, I do not think that Capitol Square

illuminates our present inquiry. Our analysis does not involve 

private speech. Rather, here, the City itself owned and erected 

the display at issue. 

 Nevertheless, as the majority quite correctly points 

out, Lynch and Allegheny require the result we reach here today. 

Furthermore, as my colleagues note, in Lemon, the Supreme Court 

held that the Establishment Clause requires that state action 1) 

have a secular purpose; 2) have a primary effect that neither 

advances nor inhibits religion; and 3) avoid excessive government 

entanglement with religion. Lemon, 403 U.S. 612-13. 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. 

Accordingly, I join the opinion with the reservations noted 

herein.