Holiday Displays and Wider Questions

This pattern is a testament to the Lemon test’s shortcomings. As Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them. It could not “explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings, . . . certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving.” Van Orden, supra, at 699 (opinion of Breyer, J.). The test has been harshly criticized by Members of this Court, lamented by lower court judges, and questioned by a diverse roster of scholars.

The [2019] result was a given though it seemed off to some who were not strict about such things -- a forty foot cross, owned the Maryland, honoring WWI  dead had a certain Christian flavor to it.  The cross was originally built shortly after the war, but turned over to the state in the 1960s.  A Gorsuch might Scalia-like wonder about line drawing, but that is surely old enough for the plurality's (via Alito, who now seems to be the go to for religious cases if he has the majority; see, e.g., Hobby Lobby) new test regarding a "presumption of constitutionality for longstanding monuments, symbols, and practices."  The rough categories in the opinion (the many cases split around six ways) included holiday displays here.

Another WWI cross, if not quite dominant and in an isolated location, was the subject of one one now Justice Kagan's arguments as solicitor general.  The issue there was the legitimacy of a special land transfer to private hands (if with conditions that caused the dissent to blanche) but Justice Kennedy's plurality made the things clear: a longstanding cross used as a war memorial (as compared to one on top of City Hall) would be deemed acceptable.  Breyer dissented on limited grounds, but made his feelings known in Van Orden (involving an old Ten Commandments monument).  Toss in Kagan as a natural born deal maker here, we are left with RBG and Sotomayor in dissent.  Alito  sounded like Breyer at times:

Where monuments, symbols, and practices with a longstanding history follow in the tradition of the First Congress in respecting and tolerating different views, endeavoring to achieve inclusivity and nondiscrimination, and recognizing the important role religion plays in the lives of many Americans, they are likewise constitutional.

Breyer favors balancing tests that promote certain purposes and those (see again the Ten Commandments case, for which he provided a fifth vote while not joining the four conservatives' more open-ended support of religious monuments deemed acceptable for promoting general messages, Scalia not quite getting his way there for thinking Ten Commandments monuments can be a means for state endorsement of monotheism)  criteria overlapped his concerns. Breyer also felt avoiding religious divisiveness was key here and going after old monuments here seemed to him not worth the controversy.  OTOH, he dissented in a school voucher case just for that reason.  Thus, Van Orden was 5-4 even with O'Connor (in the majority in the voucher case) voting with the liberals.

The opening excerpt suggests the line drawing that is involved here, but is not only found in Establishment Clause cases. Speech cases involve a myriad of categories and rules, the clarity of some basic rules (involving viewpoint discrimination and the like) holding up to some degree, except when they do not. Some single test, such as the one taken as bitterly by some as the fruit, is not likely to hold up without some creativity.*  The test concerned secular purposes, primary effects and entanglements. Valid concerns in the mind of many (e.g., free exercise concerns arise if the state interferes too much with religious institutions) but ah line drawing.

Like those who oppose obscenity law, there are some who oppose various things cited in that opening paragraph, at times labeled "ceremonial deism." I am there really though public officials in speeches using religious imagery and having holidays with some religious components (which might be tricky; see below) is not the same thing as having a national motto (at times over a judge's bench) honoring a deity. My Thanksgiving entry this year referenced early controversy here. Some argue people who oppose official endorsement are anti-religious, but back in the 1950s, in dissent of an opinion ironically (given his later tendencies) written by Justice Douglas that blithely spoke of not being too absolutist here because our institutions presupposed a Supreme Being etc. (a somewhat unclear statement) etc., Justice Jackson noted:

As one whose children, as a matter of free choice, have been sent to privately supported Church schools, I may challenge the Court's suggestion that opposition to this plan can only be anti-religious, atheistic, or agnostic. My evangelistic brethren confuse an objection to compulsion with an objection to religion. It is possible to hold a faith with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar.

The issue there was release time where public school students either could stay in school or go to religious exercises off campus, the matter for three justices turning on the location (off campus as compared to on).  The issue soon was school prayer, but even one of the three dissenters there ("no" means "no" Justice Black, who repeatedly found exceptions) dropped a footnote that became a bit telling in this field:

There is, of course, nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.

Engel v. Vitale and another case involving reading bible verses in school was accepted by JFK, who had his own issues -- Catholics once upon a time seen as somewhat tainted (some feel that way today given the Supreme Court is controlled basically by five of them, of the conservative sort, a lapsed Catholic from the Bronx deemed not worth counting). Then, there was a bunch of cases where they had to figure out what is and is not okay funding wise. Early on, basically it was books and maybe some sort of vouchers to parents or adults like a  blind person who wanted to get a religious education.  The rules loosened and recently even not providing funds given stricter state rules was deemed unconstitutional. The breadth of that development might come out in a case this very term.

What are these "manifestations" that are okay?  Justice Douglas, now more of a gadfly, noted in passing the then relatively new "under God' in the Pledge of Allegiance.  Whenever line drawing cases arise, be sure someone will bring up cases like that or "God Save This Honorable Court" said by the court crier or religious statements on currency and so forth. The tendency is to either label them as "patriotic" (well yeah; religious establishments tend to be -- they are government pressed after all) or trivial as a matter of what should be labeled as unconstitutional establishments. The longer this is done (see, e.g., chaplains at legislative halls), the more firm it is seen as acceptable.  The separatist is left to pick their spots.

The peace cross opinion underlines that there are limits even here. Justice Scalia in a school prayer case oral argument (Lee v. Weisman) spoke of non-coercion and nonsectarianism though in his view merely honoring God isn't really sectarian and a religious invocation ceremony at school graduations or football games aren't really coercive.  Scalia was in the dissent in both those cases, Kennedy (who at times showed his anger at what he saw as anti-religious separatism at times) writing the opinion in the first one.  When Kennedy wrote the controlling opinion in the latest town meeting legislative prayer case, he tossed in some limits regarding proselytizing and tolerance though once you start allowing prayers, it's hard to really be totally neutral (Justice Kagan's strong dissent also challenged the rules as applied).

There are various shades of gray here and doing a deep dive here, including checking out various lower court opinions, surely underlined the point. Take the 1980s legislative prayer case, Marsh v. Chambers, which held chaplains (even using one of the same faith for years) was a historical exception to general rules in place in this area.  The court of appeals ruling cited a 1970s case in that circuit that sounds like the much more recent case with Kagan's strong dissent, this one "involved a county board's practice of opening each of its public meetings with a prayer offered by a local member of the clergy."  But, the court of appeals noted differences -- now there was a single paid clergy member, of one faith for an extended time, with the sermons printed and handed out.  A person might find that first case bad too, but (see Stevens' dissent when it reached the Supreme Court) that single clergy member alone was a red flag.  It seems to favor a specific faith in a significant fashion.  The funding is also a traditional red flag.

Justice Kagan, and I noted here that some didn't like this, accepted precedent but noted the New York town's policy crossed the line in certain ways.  Scalia would not support "In Jesus We Trust."  The peace cross case, at least for now, separated longstanding practices from new ones.  And, like Kavanaugh noted in oral argument, local policy might be stricter too. This in fact is a bit of a wrinkle in this area as shown in the referenced upcoming case.  Missouri, e.g, has a strict separation policy in its state constitution, and it led it in the 1970s to not want to allow religious groups to use the same resources at the state university.

The Supreme Court 8-1 (Justice White alone dissented, consistently applying his stance that lines aren't as strict as precedent held -- more funding was allowed, but also states had some more discretion to withhold it too)  held this in effect a violation of free speech without any establishment requirement to justify it all.  A couple judges below, however, flagged that stricter state constitutional rule.  I think Justice White's path respectable though in some cases think he would allow to much mixture of church and state.  If we do allow vouchers, e.g., states should be able to hold back money because of stricter rules.

This might even be said to honor original understanding, the First Amendment in place to allow state discretion (the Fourteenth Amendment does complicate). Shades of local gun regulation, to allude to the first week of December gun regulation oral argument.  Federalism is a tricky business though as seen in a variety of contexts.  A pair of Christmas display cases, one that dropped out 4-4, turned on the ability of a locality to have special rules for religious displays (other cases popped up in school cases, involving clubs, presentations and fees for religious publications) in what was argued to be some sort of "public forum" that normally could not be denied based on viewpoint.

I'm with the district court opinion in the Scarsdale case from the early 1980s involving placing a creche in a public park.  The message sent is that the locality endorses it (a religious symbol honoring a miraculous event of a specific faith) and that is really why the people behind it wanted it there. This is not a demonstration where a sign or symbol is clearly that of the person there.  Some sort of disclaimer, to the degree anyone sees it (the bigger the display, the more trivial that is -- consider some sign next to a forty foot cross while people drive past it) is of limited value.  The judge in fact thought a disclaimer was a triviality next to the wider message and resisted courts needing to draw fine lines there.  At least, let the locality decide as was done in a 7-2 case involving using a general scholarship to fund being a minister.  There (Locke v. Davey), a state could say "no."

When a city so openly promotes the religious meaning of one religion's holidays, the benefit reaped by that religion and the disadvantage suffered by other religions is obvious. Those persons who do not share those holidays are relegated to the status of outsiders by their own government; those persons who do observe those holidays can take pleasure in seeing the symbol of their belief given official sanction and special status.

Fox v. City of Los Angeles (Cal. 1978)  [Easter/Xmas cross]

A creche case (involving direct state sponsorship) from the Supreme Court intervened, it was allowed 5-4, and the court of appeals determined this meant even the stand alone creche (privately provided) was allowed. If the locality wanted, they could allow no freestanding displays at all, but it could not only deny religious ones like that.  In the mid-1990s, even in "capitol square," the Supreme Court 7-2 (and an eighth suggested she might go alone with better facts) held that public fora is public fora, even if someone wanted to leave a cross.  A disclaimer and/or a special area specifically marked as private displays (thus stated a deciding three) would handle establishment fears.  I'm with Stevens' dissent, but at least would allow discretion.

That creche case involved a creche mixed with other Christmas things and was in a shopping area so it was not quite clear -- especially with other cases that seemed to be more strict in tone generally -- what was allowed. Justice O'Connor joined the majority but had a separate opinion with her "endorsement test," which basically became sort of the rule of the game. Did a government action endorse religion in a way that made some insiders and others outsiders?  Of course, the same line drawing cases might pop up. Did not "under God" do that?  Not in her eyes when that came up though the Supreme Court itself punted on standing grounds.  But, as the attorney against the peace cross said, these cases will turn on context and general rules to answer all questions would not really work.

And, thus came the case (like school funding cases that turned on maps v. atlases) that to some really pointed out the craziness as suggested by this breakdown:

BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O'CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O'CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O'CONNOR, J., joined, and an opinion with respect to Part VI. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined, post, p. 623. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined, post, p. 637. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post, p. 646. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined, post, p. 655.

I first started to read this case back in the 1990s when doing so involved going to the library and reading the relevant volume. The various opinions cover various bases with the plurality (at times only speaking for himself) trying to thread the needle oh so finely.  Basically, a creche standing alone (except for what amounted to framing) at a courthouse was too much for O'Connor (the other four dissented in the first creche case, another bunch of opinions to read, Blackmun with a separate dissent there saying the rules basically cheapened religion by only allowing government endorsements of watered down religion, a theme for Stevens too in a few school funding cases).  This led to people ridiculing the rules -- so you need how many snowmen?  But, the basic idea is right as a basic floor to avoid favoritism.

Four justices thought even a creche, a blatantly Christian religious symbol with miraculous aspects (ironically, special respect of the religious components here might lead one to oppose mixture of church and state, while others might handwave it as just a holiday symbol), should have been allowed as a part of a wider holiday celebration.  Others point out such things tend to favor certain religions, even if some places show more care (e.g., New York City public schools traditionally had the Jewish New Year off).  Even here, there was a separate display with a menorah, Christmas tree and salute to liberty sign, but the creche received special respect.

And, we thus enter the fine tuning. Six justices allowed the menorah though the lower court deemed both the menorah and creche as religious symbols honoring specific religious themed miraculous events.  Blackmun said the government could honor the holiday season and there really wasn't a better way to honor Hanukah especially to balance that tree.  [Three liberals thought in that context, even the tree had a religious meaning matched with a menorah; Blackmun suggested maybe a stand alone tree, especially in a school with children where rules were stricter, might at times be an illegitimate religious symbol.]  O'Connor said it was okay to honor religious pluralism and in the process everyone are insiders!

Scalia in oral argument suggested the problem here though he joined Kennedy's opinion allowing everything.  If the menorah (and someone was given time to defend it, an advocate that popped up in various Judaism related cases) basically there as a sort of "equal time" mechanism, what about other religious?  White also wondered if an "equal access" type rule was really being argued.  Not really.  The dissenting liberals were right to basically say that the government endorses a Christmas holiday (the real major holiday) here and the menorah is sort of a third wheel, the whole "Judaeo-Christian" deal. In fact, in that second open access case, when a local government thought a menorah was necessary once they put in a tree, the KKK decided it was only right for them to bring a cross.  (A judge early on saw the problem here when a menorah was sought to answer a tree.)

Justice Stevens partial dissent reminded us that in the beginning there was the concept of multiple establishments -- the government supporting more than one religion (usually shades of Christianity) -- and it isn't ridiculous to oppose a display that (selectively) honors Judaism too.  Brennan added the freedom of belief and pluralism was nice, but some religions didn't like that sort of thing.  Jewish groups split in the very case on the legitimacy of a state endorsement of the menorah.  I prefer Stevens' dissent, at the very least, as good policy.  The court of appeals also suggests the various aspects that should be weighed in such cases:

The variables that a court should consider in determining whether a display has the effect of advancing or endorsing religion include: (1) the location of the display; (2) whether the display is part of a larger configuration including nonreligious items; (3) the religious intensity of the display; (4) whether the display is shown in connection with a general secular holiday; (5) the degree of public participation in the ownership and maintenance of the display; and (6) the existence of disclaimers of public sponsorship of the display.

Stevens provided an example here that one or more justices pointed as a gotcha during oral arguments -- the friezes in the very courtroom. They weren't some stand alone matter like the Ten Commandments display that years back got Judge Roy Moore in trouble. They are a series of lawgivers, of various types, in a wider display.  A stand alone Moses receiving the commandments from God would be quite another matter. CJ Roberts during the peace cross oral argument found such balancing unpleasant.  But, judges and juries do that in various contexts.

Justice Souter split the baby in that cross display at the capitol square case, but as a general matter (including involving an older Ten Commandments display) was generally a liberal with separatist sentiments. No wonder I like him, right?  But, I like Breyer too and his overall principles are sound.  We might disagree on how to apply them (he himself said in Van Orden that he agreed with O'Connor but not how she applied her rules; her opinion was originally a sort of valedictory one but then Rehnquist died and she staid on until January).  What else is new?

The wider concerns are what matters, even if a holiday display might seem like a fairly trivial matter.  Symbols, mottos, ceremonial practices and so forth are not really trivial as a whole.  Students being required to say the pledge, and this was before the addition of "under God," was a major controversy in the early 1940s. The so-called "War on Christmas" is deemed ridiculous by some but it having any bite is a result of this very fact. Justice Ginsburg in her dissent in the peace cross case noted that by one count thirty percent of the nation are not Christian.  There are a diverse number of options to put on military gravestones, underling a cross truly does not represent all war dead by definition.  Jews for one find all those Christmas endorsements a bit more bothersome than others.  The Constitution itself allows affirmations as well as oaths and again some Jews even write "G-d" because they deem even the more generic term sacred. 

As I noted with Thanksgiving and referencing days of prayer and so forth, for me, a basic rule overlaps Justice O'Connor's endorsement test, if one I'd apply in a stricter way.  We need to bring in the diversity of our nation. That person who thought liberals were belittling his religious liberty is one to talk if he supports someone who selectively honors it unless that term is code for certain faiths.  Like Thanksgiving, holidays around the winter solstice have a long history, though different traditions honor it differently.  Jesus was not really born on December 25; the day was chosen to replace an existing pagan holiday.  It's best to remember that even if things like "Santa Claus" has a semi-Christian flavor to them.

My personal idiosyncratic focus on holiday display cases this time of year, along with other things, will likely continue.  Being online allows me to delve into lots more lower courts with curious fact scenarios involving various questions that touch upon various themes -- Justice Alito might split the cases, but they tend to overlap some too.  Like abortion cases and so forth, they are a way to examine wider questions. Happy holidays.

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* Justice Scalia did his truth teller routine regarding the Lemon Test in one case involving a state policy that tried to deny religious related film strips while allowing other types on the same topics:

As to the Court's invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under[.]

The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will.

Professor Segall and others have called out Scalia's inconsistencies but in general again any "test" isn't like some sort of mathematical formula going to solve everything here. Breyer's balancing might seem nice to some conservatives in the peace cross case, but less so in some other context where strict rules seem ideal.

Of note, while dismissing Scalia's "evening at the cinema" (the references are well known to those in the know), the majority cites another case that honored the precedent. The case concerned religious exemptions being allowed, at least with the "purpose of lifting a regulation that burdens the exercise of religion," a matter that pops up in various controversies.

A holiday display doesn't really do that -- people have every right to have a creche on private land.  A government endorsed religious message doesn't lift a burden; it adds a special benefit.  And, repeatedly it tends to do so selectively.  At times, we are reminded that the First Amendment honors religious liberty, but it does so in two ways -- resistance of establishments and burdens on free exercise.  A tricky balance.