# American Civil Liberties Union, and Micki Levin v. City of Birmingham

> Court of Appeals for the Sixth Circuit · June 11, 1986 · 791 F.2d 1561

URL: https://www.frixlaw.com/law-library/cases/9474909

## Case

- **Full name:** AMERICAN CIVIL LIBERTIES UNION, and Micki Levin, Plaintiffs-Appellees, v. CITY OF BIRMINGHAM, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** June 11, 1986
- **Citations:** 791 F.2d 1561; 55 U.S.L.W. 2006; 1986 U.S. App. LEXIS 26030
- **Precedential status:** Published
- **Opinion:** Dissent by Nelson
- **Judges:** Lively, Merritt, Nelson
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9474909

## How later opinions describe it (automated extraction)

- applying the endorsement test as a refinement of the first two parts of the Lemon test

## Opinion text

DAVID A. NELSON, Circuit Judge,
dissenting.
If it is an “establishment of religion” for a city to display an unadorned nativity scene at Christmas, I would have thought it no less an establishment of religion for the City to display a nativity scene adorned with a panoply of other Christmas symbols, such as lighted Christmas trees, reindeer, and, as the Christmas poem puts it, “a sleigh full of toys — and St. Nicholas, too.” The Supreme Court having told us that a nativity scene with other Christmas symbols is constitutional, I am therefore troubled by the conclusion that a nativity scene without them is not.
Were we writing on a clean slate, this case might have given us less difficulty than it has. We would then have looked at the language of the First Amendment (“Congress shall make no law respecting an establishment of religion”) and decided whether or not the City of Birmingham is “Congress.” Answering that question in the negative, we would have turned, presumably, to the Fourteenth Amendment and considered whether anything in its text 1 or in the history of its adoption suggests an intent to empower the federal judiciary, in the absence of “appropriate legislation'' enacted by Congress, to tell municipalities how they may decorate their buildings and grounds for Christmas. I am not sure that we could have detected such an intent, as an original proposition.
Our slate has already been written on rather extensively, however, and although it may bear the signs of a few erasures and may have picked up a certain amount of chalk dust, it contains some very plain instructions on how we are to approach our present assignment. We are to take it as given, for example, that the Establishment Clause of the First Amendment has been made binding on the states through the Fourteenth Amendment; that the Fourteenth Amendment (unlike the Eleventh) uses the word “State” to include cities, towns and other political subdivisions; and that the prohibition against legislation respecting an establishment of religion ex *1568 tends to executive action as well as legislative.
All this, I think, the decisions of the Supreme Court make clear. What is not so clear, in the context of this case and in the absence of explicit guidance from Congress, is how the Supreme Court would have us construe the words “an establishment of religion.”
Where we are called upon to decide a constitutional question that has not yet been squarely addressed by the Supreme Court, we need not — and I think we should not — close our minds to the history of our institutions, to the customs and traditions of our people, or (borrowing a phrase from Lord Coke) to our sense of “common right and resoun.” Neither should we close our minds to the logic that informs those Supreme Court decisions which most closely concern our question, even if they do not answer it. Open our minds as we will, however, we are likely to find unanimity of opinion elusive where the subject is the constitutional relationship between church and state. I express my own thoughts on this subject with some diffidence, knowing that I am in territory where the boundary between orthodoxy and heresy, shifted more than once in the past, is probably not firmly fixed yet.
The phrase “establishment of religion” may have been something of a chameleon term even in the days of the Founders, but few people then, I think, would have disagreed over the common core of meaning behind it. The clause in which the phrase occurs “forbids an established church or anything approaching it,” Lynch v. Donnelly, 465 U.S. 668, 673 , 104 S.Ct. 1355, 1359 , 79 L.Ed.2d 604 (1984), 2 and the late 18th Century was not unfamiliar with state-established churches of one kind or another. South Carolina provides a good example. The constitution adopted by that state in 1778, some thirteen years before the adoption of the First Amendment, “provided that only Protestants could sit in the two houses of the state legislature,” and it “put the point as forthrightly as anyone could ask: ‘The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State.’ ” William Lee Miller, The First Liberty: Religion and the American Republic (1986), p. 19. Ezra Stiles, a Congregational minister in Rhode Island, has been quoted as stating (in 1761) “that the laws of New Hampshire and Massachusetts ‘as fully established Congregationalism ... as the acts of parliament ... establish episcopacy in South Britain.’ ” Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (1986), p. 120. “Establishment of religion,” as the term was used in the days of the Founders, connoted such things as the payment of *1569 clerical salaries by the state, the governmental prescription of articles of faith, the imposition of religious tests for office, and the official endorsement of particular forms of worship. The Founders might well have been surprised to learn some of the connotations the term has taken on in recent years.
Does the conduct of the City of Birmingham in erecting a manger scene on city property during the Christmas season come impermissibly close to the making of a “law respecting an establishment of religion” within the current meaning of those words? I do not read Lynch v. Donnelly as teaching that it does, but this court has drawn from that case a different lesson. The lesson comes down to this: a city is free to display such a scene at Christmas if it is balanced by symbols which, although they may also be associated with Christmas, are considered secular in origin. If enough such symbols are displayed, the manger scene will pass constitutional muster. It may be convenient to think of this as a “St. Nicholas too” test — a city can get by with displaying a creche if it throws in a sleigh full of toys and a Santa Claus, too.
The application of such a test may prove troublesome in practice. Will a mere Santa Claus suffice, or must there also be a Mrs. Claus? Are reindeer needed? If so, will one do or must there be a full complement of eight? Or is it now nine? Where in the works of Story, Cooley or Tribe are we to find answers to constitutional questions such as these?
The point I am trying to make is a serious one, of course. The holiday we celebrate as Christmas began as a pagan festival millennia before the birth of Christ, and “some people have thought that the Christians invented Christmas to compete against the pagan celebrations of December twenty-fifth.” Earl W. Count, Jf.000 Years of Christinas (1948), pp. 18 & 27. The symbolism of Christmas in the 20th Century A.D. continues to incorporate many pagan elements, and Christmas would hardly be Christmas, for most Americans, without them. But I question whether it is appropriate for the federal courts to tell the towns and villages of America how much paganism they need to put in their Christmas decorations, and I am reluctant to attribute to the Supreme Court an intent to point us in that direction by implication.
I am strengthened in my conclusion that Lynch does not require us to apply a “St. Nicholas too” test by the fact that the Court of Appeals for the Second Circuit (Mansfield, Pierce and Pratt, JJ.,) has specifically rejected the assertion that Lynch adopts such a test. In explaining why that reading of Lynch is “erroneous,” the Second Circuit said:
“The Supreme Court did not decide the Pawtucket case based upon the physical context within which the display of the creche was situated; rather, the Court consistently referred to ‘the creche in the context of the Christmas season,’ id. 104 S.Ct. at 1362 , or the ‘Christmas Holiday season,’ id. After determining that the proper context for analysis was the Christmas season, the Court noted:
To forbid the use of this one passive symbol — the creche — at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and Legislatures open sessions with prayers by paid chaplains would be a stilted overreaction contrary to our history and to our holdings. If the presence of the creche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas; and of our religious heritage, are equally offensive to the Constitution.
Lynch, 104 S.Ct. at 1365 (emphasis added). Thus, the Village’s display-context argument fails.”
McCreary v. Stone, 739 F.2d 716, 729 (2d Cir.1984), aff'd. by an equally divided *1570 court sub nom. Board of Trustees of the Village of Scarsdale v. McCreary, 471 U.S. —, 105 S.Ct. 1859 , 85 L.Ed.2d 63 (1985).
As a practical matter, to be sure, a “St. Nicholas too” approach may not be a bad compromise of the conflict between the view that the Establishment Clause bars all religious symbols on government property 3 and the view — a more traditional view, it is fair to say — that the First and Fourteenth Amendments were intended to do no such thing. The conflict is obviously a sharp one.
Whatever the actual intent of the people who originated Birmingham’s nativity scene more than 30 years ago, and whatever their Christological views may actually have been, the plaintiff in this case views the display as “constituting an official endorsement of the Christian religion and of its principal tenet, the divinity of Jesus.” The evil of such an “endorsement,” she argues in terms taken from Justice O’Con-nor’s concurring opinion in Lynch , is that it sends “a message to non-Christians that they are outsiders and not full members of the Birmingham political community.”
But is this really Birmingham’s message? The record before us is not particularly illuminating, 4 nor should we expect it to be: the question is “in large part a legal question to be answered on the basis of judicial interpretation of social facts.” Lynch v. Donnelly, 465 U.S. at 694 , 104 S.Ct. at 1369 (O’Connor, J., concurring.) I am not persuaded that the social facts of our time justify the conclusion that the City of Birmingham can reasonably be said to have endorsed Christianity or to have sent non-Christians an impermissible message.
Does the federal government send non-Christians an impermissible message when, without benefit of St. Nicholas, it sells individual postage stamps depicting Mary and the infant Jesus, as it did in one recent Christmas season, or depicting Mary alone, as it did at another Christmastime? Does the federal government send a message to non-believers that they are “outsiders” when it hires chaplains for its armed forces, its prisons, and its Congress? Or when it places the motto “In God We Trust” on (of all things) its currency? Or when it passes legislation (as it did after some of us had reached adulthood) adding the words “under God” to the Pledge of Allegiance? Evidently not; yet the Establishment Clause is no less binding on the United States, whose Congress the First Amendment expressly names, than on political subdivisions of individual states.
It is not a persuasive rejoinder, I think, that unlike municipal nativity scenes, some of the federal government’s accommodations of religion — the hiring of chaplains, e.g. — have been with us since the founding of the Republic. One message conveyed by the relatively recent advent of these nativity scenes, as I shall try to show, is that we have become a more diverse and tolerant society than we used to be. That message hardly stamps nativity scenes with the mark of Cain.
There was no State of Michigan when the First Amendment was adopted, but it is *1571 safe to assume that the home states of most of the early settlers in what was to become the State of Michigan had no nativity scenes on public display in December of 1791. This was not because of any sense that the states should refrain from “endorsing” Christianity — states commonly did that — but because of considerations that were themselves religious in origin and that helped shape the aesthetic sensibilities of those whose culture was inherited from the wave of British Protestants who came here in the 17th Century. If it is true today, as I believe it is, that the adherents of most religions (or of no religion) have no particular reason to be offended by the sight of a municipal nativity scene at Christmas, that was certainly not true as far as our Puritan forebears were concerned. “To the Puritans,” as Justice Brennan pointed out in his Lynch v. Donnelly dissent, “the celebration of Christmas represented a ‘Popish’ practice lacking any foundation in Scripture.” 465 U.S. at 721 , 104 S.Ct. at 1384 . The display of a creche would have been considered rank idolatry by the Puritans; but the Puritans’ strong prejudice against Catholicism — a prejudice that did not extend to Judaism, incidently— has largely vanished from the United States of the 1980s. The rise in the popularity of nativity scenes is not unrelated to (and to some extent has been made possible by) the decline of cultural and religious prejudice in this country and by the gradual dilution of the British Puritanism that has been called the “single most influential cultural force at work in the new nation.” A. James Reichley, Religion in American Public Life (1985), p. 53.
Although the Puritans would have been appalled at the public display of a nativity scene — with or without a St. Nicholas— they would hardly have been appalled if they could have heard Justice Brewer declare, as he did approximately a century after adoption of the First Amendment and a quarter of a century after adoption of the Fourteenth, that “this is a Christian nation.” Church of the Holy Trinity v. United States, 143 U.S. 457, 471 , 12 S.Ct. 511, 516 , 36 L.Ed. 226 (1892). Justice Brewer’s words may strike our ears as arrogant (see Lynch v. Donnelly, 465 U.S. at 718 , 104 S.Ct. at 1382 , Brennan, J., dissenting), but Justice Brewer spoke for a unanimous Supreme Court, the evidence marshalled in support of his proposition was extensive (see 143 U.S. at pp. 465-71, 12 S.Ct. at 514-16 ), and at the time they were uttered I have little doubt that Justice Brewer’s words would have been widely accepted — by Christian and non-Christian alike — as an accurate statement of fact. Such was the climate of opinion when Congress first enacted legislation declaring Christmas Day a legal public holiday; but no one has ever successfully challenged the constitutionality of the statute (now codified at 5 U.S.C. § 6103 ) that gives official legal status to the day that many Christians celebrate as the birthday of Christ.
The nation has changed since Justice Brewer’s day — doubtless for the better, in some respects — but if our courts no longer speak of us as a “Christian” nation, I think it is still the common sense of our people that nothing in the Constitution requires the state and religion to “be aliens to each other.” Zorach v. Clauson, 343 U.S. 306, 312 , 72 S.Ct. 679, 683 , 96 L.Ed. 954 (1952), (per Douglas, J., speaking for a divided Court.) If the Constitution’s absolute prohibition against any governmental “establishment” of religion were construed as foreclosing all concert of whatever character between government and religion, the result would be totally at odds with what Justice Douglas took to be “the common sense of the matter:”
“Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; so help me God in our courtroom oaths— these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be *1572 flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: God save the United States and this Honorable Court.” 343 U.S. at 312-13 , 72 S.Ct. at 683 .
It would not worry me unduly if a “fastidious atheist or agnostic” found the City of Birmingham’s nativity scene offensive on aesthetic or philosophical grounds, or if a modern day Puritan objected to it on religious grounds. I might be able to sympathize with such a point of view, but I would consider it largely irrelevant from a legal standpoint; not everything that gives offense in this world is unconstitutional.
The situation of Birmingham’s Jewish citizens, however, calls for special comment; if anyone has a legitimate basis for objecting to the nativity scene, it is they. (It may be appropriate to note, at this point, that there is no Jewish plaintiff in this case.) It was all very well, perhaps, for Benjamin Disraeli to observe, as he did through a character in one of his novels, that “half of Christendom worships a Jew and the other half worships His mother,” but the fact remains that for much of the last two millennia the behavior of the Christian church, the Christian state, and many individual Christians toward the people and the religion from which Christianity sprang has ill comported with what many of us understand to be the teachings of Jesus. Our record in this country is better than the record elsewhere, in my submission, and our record has been improving, but there may well be Jews in Birmingham who nonetheless find it discomfiting that their municipal government should make as much as it does of a holiday as closely associated with Christianity as Christmas. I understand that concern, and am less certain of the correctness of my position in this case because of it.
When I examine the “social facts” as dispassionately as I can, however, and try to apply the law I am sworn to uphold as I am given to understand it, I cannot find any constitutional infirmity in what the city has done. I see no anti-Jewish animus in Birmingham’s observance of Christmas, and I know of no basis for any claim that the federal courts are empowered, under the First and Fourteenth Amendments, to prohibit Birmingham from observing Christmas in any manner reasonably appropriate to the season. The Fourteenth Amendment, which brought our states and cities under the First Amendment, did not empower the judiciary to enact appropriate enforcing legislation, it empowered the Congress to do so. Congress itself has made Christmas Day a legal public holiday, and has not seen fit to prohibit the display of municipal nativity scenes during the holiday season. It may or may not be wise for Birmingham to erect a Christmas creche— “unadorned” or otherwise — but that strikes me as a question more appropriately answered by the people, through their elected representatives, than by courts of law.
On balance, I think the result reached here runs counter to what Justice Douglas called “the common sense of the matter.” It attributes to the City of Birmingham a message I am confident the city never intended to convey, and it attributes more to the words of the Establishment Clause than their history, at least, suggests they can bear. Our decision requires the people of Birmingham either to abandon or reshape one of their civic traditions, and in a small but measurable degree the decision diminishes the people’s control over their own lives. I do not believe the Constitution compels this result, on the facts before us. I agree with the holding of the Court of Appeals for the Second Circuit in McCreary v. Stone, 739 F.2d 716 , supra, and I would reverse the judgment of the trial court here.
. The only sections of the Fourteenth Amendment that could be considered relevant are sections 1 and 5. Section 1 provides:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Section 5 provides:
"The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
. Cf. this passage from the description, in the Annals of Congress, of the discussion in the House of Representatives of the Report of the Select Committee that considered the proposed Bill of Rights presented by James Madison:
“Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.” (Quoted in Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (1986), p. 200.)
"In actuality,” a modern scholar tells us, "the founders generally regarded establishment as a direct support of religion by government — the kind many of them had experienced in the colonial past and still had before them in several of the states.” A. James Reichley, Religion in American Public Life (1985), p. 158.
As a matter of law, the First Amendment has been construed to be "more than a pledge that no single religion will be designated as a state religion,” and “more than a mere injunction that governmental programs discriminating among religions are unconstitutional.” Grand Rapids School District v. Ball, 473 U.S. —, —, 105 S.Ct. 3216, 3221 , 87 L.Ed.2d 267, 275 (1985). As a matter of history, however, "[t]he evil to be aimed at ... appears to have been the establishment of a national church, and perhaps the preference of one religious sect over another-" Wallace v. Jaffree, 472 U.S. —, —, 105 S.Ct. 2479, 2513 , 86 L.Ed.2d 29, 71 (1985) (Rehnquist, J., dissenting.)
. The individual plaintiff in this case testified, in effect, that she thought a “strict” interpretation of the First Amendment would require the removal of every cross from Arlington National Cemetery.
. The record does show that the plaintiff is incorrect in her suggestion that the Birmingham creche is "unadorned” by any other Christmas symbolism. Immediately behind the nativity scene grows an evergreen tree — a typical Christmas tree — which the city decorates, during the holiday season, with colored lights. The city hall property as a whole has perhaps twelve trees, each of which is decorated at Christmastime with five or six strings of lights. Going outside the city hall property, there is testimony that the city decorates the trees of its central business district with over 1,000 strings of Christmas lights. Could the presence of such Christmas lights on the city’s trees redeem the nativity scene under a "St. Nicholas too” test? This court evidently thinks not, and I obviously have no basis for quarrelling with that judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474909. Public record. Not legal advice.