Other listeners do not have or will not seek access to such evidence of intent.

See also Lowe v. City of Eugene, 254 Ore., at 544-546, 463 P.2d, at 363. U.S. 203, 232 U.S. 668, 680] (1982), also fails to support the Court's assertion. (1961), that a wholly secular goal predominates.

U.S. 664  

463 Several years ago, Mr. DeLuca, there was a ceremony held on the Mall, which is federal property, of course. .

Church & State 181 (1963). 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. h�b```c`` d`e`P�� �� ,�@�q� 330 Id., at 1179-1180.

Schempp, supra, at 265 (BRENNAN, J., concurring). Ante, at 690. I agree with the Court that the judgment below must be reversed. To the Puritans, the celebration of Christmas represented a "Popish" practice lacking any foundation in Scripture.
U.S. 668, 717] Presidential Proclamation No.

U.S. 668, 691]

. The import of the Court's decision is to encourage use of the creche in a municipally sponsored display, a setting where Christians feel constrained in acknowledging its symbolic meaning and non-Christians feel alienated by its presence. In sum, there is no evidence whatsoever that the Framers would have expressly approved a federal celebration of the Christmas holiday including public displays of a nativity The creche has been relegated to the role of a neutral harbinger of the holiday season, useful for commercial purposes, but devoid of any inherent meaning and incapable of enhancing the religious tenor of a display of which it is an integral part. The Court apparently believes that once it finds that the designation of Christmas as a public holiday is constitutionally acceptable, it is then free to conclude that virtually every form of governmental association with the celebration of the holiday is also constitutional. 0000026674 00000 n U.S. 668, 724] endobj Copyright © 2020, Thomson Reuters. 607 (SDNY 1977); Lawrence v. Buchmueller, 40 Misc. 463 The Court's struggle to ignore the clear religious effect of the creche seems to me misguided for several reasons.

U.S. 420, 445

(1975); Wolman v. Walter, -295. The principles announced in the compact phrases of the Religion Clauses have, as the Court today reminds us, ante, at 678-679, proved difficult to apply.

(BRENNAN, J., concurring), may represent a "warning signal" that the values embodied in the Establishment Clause are at risk. 0000007029 00000 n Supp., at 1179. Our inquiry in Walz was similarly confined to the special history of the practice under review. ] I find it puzzling, to say the least, that the Court today should find "irrelevant," ante, at 681, n. 7, the fact that the city's secular objectives can be readily and fully accomplished without including the creche, since only last Term in Larkin v. Grendel's Den, Inc., 168. Committee for Public Education & Religious Liberty v. Nyquist, supra, at 798. U.S. 756, 775 For it is at that point that the government brings to the forefront the theological content of the holiday, and places the prestige, power, and financial support of a civil authority in the service of a particular faith. Were the test that the government must have "exclusively secular" objectives, much of the conduct and legislation this Court has approved in the past would have been invalidated. Footnote 31

This history may help explain why the Court consistently has declined to take a rigid, absolutist view of the Establishment Clause. [ . 330

-224. Footnote 25 366 Nor does the Court provide any basis for disputing the holding of the Court of Appeals for the Eleventh Circuit that the erection and maintenance of an illuminated Latin cross on state park property violates the Establishment Clause.

  . ." But it went on to hold that some political divisiveness was engendered by this litigation. Doc.

An affirmative answer to either question should render the challenged practice invalid. [ Stay up-to-date with FindLaw's newsletter for legal professionals. In this case, as even the District Court found, there is no institutional entanglement. I passed all my youth without any knowledge of Christmas, and so I have no associations with the day." See ante, at 680-683, 685-686; see also ante, at 692-694 (O'CONNOR, J., concurring). ] Although I agree with the Court that no single formula can ever fully capture the analysis that may be necessary to resolve difficult Establishment Clause problems, see n. 11, infra, I fail to understand the Court's insistence upon referring to the settled test set forth in Lemon as simply one path that may be followed or not at the Court's option. Footnote 12



(1973); Lemon v. Kurtzman, supra, at 623, we have never relied on divisiveness as an independent ground for holding a government practice unconstitutional. U.S. 646, 662 When government decides to recognize Christmas Day as a public holiday, it does no more than accommodate the calendar of public activities to the plain fact that many Americans will expect on that day to spend time visiting with their families, attending religious services, and perhaps enjoying some respite from preholiday activities.

3560, 3 CFR 312 (1959-1963 Comp.). Footnote 4 See Allen v. Hickel, 138 U.S. App. 367

[ This Court has explained that the purpose of the Establishment and Free Exercise Clauses of the First Amendment is. [ U.S., at 782 [

Unlike the typical case in which the record reveals some contemporaneous expression of a clear purpose to advance religion, see, e. g., Epperson v. Arkansas, supra, at 107-109; Engel v. Vitale, supra, at 423, or, conversely, a clear secular purpose, see, e. g., Lemon v. Kurtzman, supra, at 613; Wolman v. Walter, Our decision in Widmar v. Vincent, It would also require that we view it as more of an endorsement of religion than the Sunday Closing Laws upheld in McGowan v. Maryland,

U.S. 668, 682] [ , and n. 10 (1962); Committee for Public Education & Religious Liberty v. Nyquist, In my view, "those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice" must be struck down. Footnote 11 17 … .

  . One of the reasons, obviously, that the city gave for including the creche was because it attracted shoppers.

If the audience is large, as it always is when government "speaks" by word or deed, some portion of the audience will inevitably receive a message determined by the "objective" content of the statement, and some portion will inevitably receive the intended message.

Executive Orders and other official announcements of Presidents and of the Congress have proclaimed both Christmas and Thanksgiving National Holidays in religious terms. U.S. 602, 612 Footnote 15 Unlike such secular figures as Santa Claus, reindeer, and carolers, a nativity scene represents far more than a mere "traditional" symbol of Christmas. 1970); B. Bailyn, The Ideological Origins of the American Revolution 257-263 (1967); W. McLoughlin, New England Dissent: 1630-1833 (1971); L. Pfeffer, Church, State and Freedom (1967). ] One commentator has noted that the increasing secularization of the Christmas celebration which occurred during the 19th century led "members of the Puritan and evangelical churches [to be] less inclined to oppose the secular celebration when it no longer symbolized the religious and political dominance of the Church of England. See supra, at 710.
Comparisons of the relative benefits to religion of different forms of governmental support are elusive and difficult to make. Id., at 1179. ] See A. Stokes & L. Pfeffer, Church and State in the United States 383 (rev. 0 [465 Finally, it is evident that Pawtucket's inclusion of a creche as part of its annual Christmas display does pose a significant threat of fostering "excessive entanglement."

If the presence of the creche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious heritage, are equally offensive to the Constitution. . [

aided. See, e. g., Zorach v. Clauson, [465 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.

[

433 (1980).

] See N. Frye, The Secular Scripture 14-15 (1976). Indeed, the court found that the evidence supported a contrary conclusion. Thus, despite the Court's efforts to evade the point, the fact remains that Marsh v. Chambers, Endorsement 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. JUSTICE O'CONNOR'S concurring opinion properly accords greater respect to the District Court's findings, but I am at a loss to understand how the court's specific and well-supported finding that the city was understood to have placed its stamp of approval on the sectarian content of the creche can, in the face of the Lemon test, be dismissed as simply an "error as a matter of law." (1963). U.S. 236 The city has its victory - but it is a Pyrrhic one indeed. As the Court notes, ante, at 683, the District Court found no administrative entanglement in this case, primarily because the city had been able to administer the annual display without extensive consultation with religious officials. Nor did we find Lemon useful in Larson v. Valente, Footnote 8   4844, 3 CFR 30 (1982), and the Jewish High Holy Days, 17 Weekly Comp. It is, instead, best understood as a mystical re-creation of an event that lies at the heart of Christian faith. See 525 F. The Court advances two principal arguments to support its conclusion that the Pawtucket creche satisfies the Lemon test. It is far too late in the day to impose a crabbed reading of the Clause on the country. 397

4333, 3 CFR 419 (1971-1975 Comp. 1150, 1162 (RI 1981) ("Overall the tenor of the correspondence is that the lawsuit represents an attack on the presence of religion as part of the community's life, an attempt to deny the majority the ability to express publically its beliefs in a desired and traditionally accepted way"). U.S. 349 We did not, for example, consider that analysis relevant in Marsh v. Chambers,

In Hunt v. McNair, 413

[465 -41 (1980) (per curiam); Wolman v. Walter, Gilfillan v. City of Philadelphia, 637 F.2d 924 (1980).

); Presidential Proclamation No. (quoting Everson, 374 Finally, we have noted that government cannot be completely prohibited from recognizing in its public actions the religious beliefs and practices of the American people as an aspect of our national history and culture. U.S. 229, 236 . The effect of the creche, of course, must be gauged not only by its inherent religious U.S., at 244 3 No.   403 U.S. 306 The Puritans, and later the Presbyterians, Baptists, and Methodists, generally associated the celebration of Christmas with the elaborate and, in their view, sacrilegious celebration of the holiday by the Church of England, and also with, for them, the more sinister theology of "Popery." U.S. 306   Footnote 13 In Larson, we first reviewed a state law granting a denominational preference under a "strict scrutiny" analysis, id., at 246-251, but then concluded by finding the statute unconstitutional under the Lemon analysis as well. -613 (1971) (which THE CHIEF JUSTICE would say has been applied by this Court "often," ante, at 679, but which JUSTICE O'CONNOR acknowledges with the words, "Our prior cases have used the three-part test articulated in Lemon," ante, at 688), compels an affirmance here. That the Court today returns to the settled analysis of our prior cases gratifies that hope.   0000010217 00000 n Entanglement is a question of kind and degree. U.S. 306 1310 (Colo. 1981). 370


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