The opinion
Opinions of the United
1997 Decisions 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Precedential or Non-Precedential: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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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)
___________
1
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
2
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.
3
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 Cross-
Appellees, 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
4
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
5
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.
6
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.
7
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
8
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
9
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).
10
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;
11
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
12
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.
13
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.
14
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.
15
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 winter-
holiday 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
16
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,
17
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
18
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
19
. . . ." 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).
20
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).
21
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
22
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).
23
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).
24
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
25
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.
26
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.
27
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
28
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).
29
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
30
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").
31
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.
32
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
33
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).
34
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).
35
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
36
"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.
37
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
38
"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.
39
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.
40
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.
41
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
42
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,
43
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.
44