Amicus Curiae Brief — County of Allegheny v. American Civil Liberties Union

Nos. 87-2050, 88-50, 88-96

IN THE

Supreme Court of the United

October Term, 1988

COUNTY OF ALLEGHENY, a political subdivision of the Commonwealth of

Pennsylvania, the CITY OF PITTSBURGH, a political subdivision of the

Commonwealth of Pennsylvania, and CHABAD,

Petitioners.

vs.

AMERICAN CIVIL LIBERTIES UNION GREATER PITTSBURGH

CHAPTER, ELLEN DOYLE, MICHAEL ANTOL, REVEREND WENDY

L. COLBY, HOWARD ELBLING, HILARY SPATZ LEVINE, MAX A.

LEVINE and MALIK TUNADOR,

Respondents.

On Writ Of Certiorari To The United States Court

Of Appeals For The Third Circuit

—oooi_____>—>—>>=—>>—>>>—>{jl_>{_—{qya—_=ae=—_——>>—>—>—>——==an"nae=— 0

BRIEF OF THE AMERICAN JEWISH COMMITTEE, THE NATIONAL

COUNCIL OF THE CHURCHES OF CHRIST IN THE U.S.A., THE

UNION OF AMERICAN HEBREW CONGREGATIONS, THE COUNCIL

ON RELIGIOUS FREEDOM, AND AMERICANS UNITED FOR

SEPARATION OF CHURCH AND STATE AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

eS — a

—

SAMUEL RABINOVE

Ricnarp T. Foutm

Counsel of Record

The American Jewish Committee

165 East 56th Street

New York, New York 10022

(212) 751-4000

- and -

JAMES G. GREILSHEIMER

ALAN M. KLINGER

Davin A. STEIN

LAUREN G. KLEIN Ws.

Srroock & Srroock & LAVAN

7 Hanover Square

New York, New York 10004

(212) 806-5400

Of Counsel: Attorneys for Amici Curiae

Lee BooTusy

Boornusy, Ziprick & YINGST

208 W. Mars Street

Berrien Springs, Michigan 49103

> — Suprenve Court, u.s,

QUESTIONS PRESENTED

1. Whether the display during the December holiday season

of an unadorned creche at a prominent location inside the A\I-

legheny County Courthouse, which houses the County's executive

officers, its commissioner, controller, treasurer and sheriff, in ad-

dition to some of its criminal and civil courts, violates the Estab-

lishment Clause of the First Amendment of the United States

Constitution.

2. Whether the display of an unadorned menorah at a

prominent location on the outside steps of the City-County Build-

ing, which houses the offices and chambers of the Mayor and City

Council, its treasurer, marriage license bureau, register of wills

and county prothonotary (clerk), as well as the principal county

courts, the Supreme and Superior Courts, violates the Establish-

ment Clause of the First Amendment of the United States

Constitution.

STATEMENT OF INTEREST

The American Jewish Committee (“AJC”), the National

Council of the Churches of Christ in the U.S.A. (the “National

Council of Churches”), the Union of American Hebrew Congre-

gations (“UAHC”), the Council on Religious Freedom, and

Americans United for Separation of Church and State, as amici

curiae, respectfully submit this brief in support of respondents,

requesting affirmance of the decision below.

The AJC, a national organization of approximately 50,000

members founded in 1906, is dedicated to the defense of the civil

rights and religious liberties of American Jews. These rights and

liberties, however, can only be secure for Jews when they are

equally secure for Americans of all other faiths. AJC is commit-

ted to the belief that separation of religion and government is the

surest guarantee of religious liberty for all and has proved of

inestimable value to the free exercise of religion in a pluralistic

society.

In the view of the AJC, government display of a creche or

menorah or comparable religious symbols at the seat of govern-

ment represents official endorsement or sponsorship of a relig-

ious message that other sects do not accept and reflects

invidiously on those non-participating sects’ religious beliefs and

on their adherents’ status in the political community. A creche,

which depicts the birth of Jesus as the birth of a divinity, is unmis-

takably and unalterably religious, indeed doctrinal in nature.

Similarly, a menorah is a religious symbol, ceremonially used to

fulfill a religious obligation in observance of a Jewish holiday.

The placement of a creche on the Grand Staircase of the Al-

legheny County Courthouse and of a menorah on the front steps

of the Pittsburgh City-County Building, not as part of some more

secular or commercial display, but for the purpose of promoting

their religious themes, is tantamount to state acceptance of par-

ticular religious doctrines in violation of the Establishment

Clause of the First Amendment of the United States Constitu-

tion.

The National Council of Churches is the cooperative agency

of thirty-one national religious bodies in the United States having

an aggregate membership of more than 40,000,000. The Council

does not presume to speak for all of those adherents but for its

Governing Board, the body of some 280 members appointed by

the several member denominations in proportion to their size and

their support of the Council.

In the view of the National Council of Churches, government

acceptance of a creche on public property not only secularizes

and degrades a sacred symbol of Christianity, but also represents

either a presumptuous identification by government with that re-

ligion and its symbols or an equally presumptuous identification

by Christians of their religious traditions with the institutions of

government.

The UAHC is the central body of 840 Reform synagogues in

the United States and Canada. Its membership combines more

that 1,250,000 Jewish persons. Through its Commission on Social

Action, it represents also the Central Conference of American

Rabbis, which comprises the Reform rabbinate, as well as all af-

filiated bodies of Reform Judaism. From its inception in 1873, the

UAHC has vigorously opposed ail intrusions upon the constitu-

tional principle of separation of church and state.

The Council on Religious Freedom is a nonprofit corpora-

tion which was formed to uphold and promote the principles of

religious liberty. The objectives and purposes of the organization

include taking action to eliminate the unnecessary entanglement

of religion and state and other areas of concern which interfere

with the full experience of religious freedom. Its Board of Direc-

tors is composed of individuals who are active in religious affairs,

some in an official capacity and some on a lay basis, and who rec-

ognize the importance of preserving and promoting the constitu-

tional principle of the free exercise of religion and opposing any

official endorsement of particular religious doctrines in contra-

vention of the Establishment Clause of the First Amendment.

Americans United for Separation of Church and State is a

nonprofit corporation formed to maintain and advance civil and

religious liberties through enforcement of the rights and privi-

leges granted by the First and Fourteenth Amendments to the

United States Constitution. This group has a membership of

some 40,000 members of various religious beliefs and some of no

religious belief in all states of the United States. It is involved in

extensive litigation of First Amendment religious freedom issues

throughout the nation, including such major Free Exercise and

Establishment Clause cases as Lemon v. Kurtzman, 403 U.S. 602

(1971); Committee for Public Education & Religious Liberty v.

Nyquist, 413 U.S. 756 (1973); Meek v. Pittenger, 421 U.S. 349 (1975);

Grand Rapids School District v. Ball, 473 U.S. 373 (1985); and Ed-

wards v. Aguillard, 482 U.S. __, 107 S.Ct. 2573 (1987).

Amici believe that religion has been, is, and must continue to

be, a vital, vigorous and legitimate element in American public

life; but that should be effected, not by state action, but by citizen

action within the private sphere. There are many vvays in which

citizens, individually and in voluntary private groups of their own

choosing, can express their religious views, commitments, sym-

bols and aspirations without employing or seeking to employ the

machinery and passive sponsorship of the state for their free exer-

cise of religion. Government display of unadorned religious sym-

bols at the very seat of government is a departure from that

guiding principle and a violation of the Establishment Clause of

the First Amendment.

I.

iv

TABLE OF CONTENTS

THE COURT OF APPEALS FOR THE THIRD CIR-

CUIT CORRECTLY HELD THAT IN PERMITTING

THE PLACEMENT OF THE CRECHE AND

MENORAH, THE CITY AND COUNTY HAVE IM-

PROPERLY ADVANCED OR ENDORSED RELIG-

ION IN CONTRAVENTION OF THE SECOND

PRONG OF THE LEMON TEST ..................

A. The Court of Appeals Properly Examined the Chal-

lenged Placement of Religious Symbols Under the

MELEE KectReetsauddadencatiiisnsavauy<s

B. The Placement of the Creche and Menorah at Seats of

Government Distinguishes this Case from

PG inchauesscdecenudedeonebebadaddacersc:

C. The Fact that the Creche and Menorah Here Were

Unadorned and Not Part of Some Larger, Secular

Display, Distinguishes this Case from Lynch .....

D. The Court of Appeals Correctly Held That the

Creche and the Menorah Are Associated With Relig-

ious Holidays and Would Be Viewed As Pertaining to

ee ID 5 04-0-05:406%<d40enkecececse

E. The Placement of the Creche and Menorah in this

Case Convey a Message of Endorsement of Religion

Within the Meaning of Justice O’Connor’s Concur-

aiid ceudsdtaderucreraiess oe ce:

10

13

Il. NOTIONS OF “ACCOMMODATION OF RELIG-

ION” ARE NOT PROPERLY IMPLICATED IN THIS

REE 646 wh nen0neddnnaccduneueenbaiedenanadeess es

III. IN LIGHT OF THE DIFFICULTIES INHERENT IN

THE LYNCH ANALYSIS, THAT DECISION

SHOULD BE REEXAMINED AND SET ASIDE ...

EE oe éncdsadaccuncdatbocreusésbenedednes

PAGE

24

31

TABLE OF AUTHORITIES

Cases:

Abington School District v. Schempp,

PED ccenicoveuksenddcecevesssses 22, 29, 30

ACLU v. County of Allegheny, 842 F.2d 655

SP SED fadesuvensndbnessanduessesensscessi passim

ACLU v. City of Birmingham, 791 F.2d 1561 (6th Cir.),

cert. denied, 479 U.S . 939 (1986) ..............4.. 8, 10, 11

ACLU v. City of St. Charles, 794 F.2d 265

CG ME 6 ca hha NbSeh450s608 060060600 12, 14, 18, 28

ACLU vy. Rabun Co. Chamber of Commerce, Inc.,

698 F.2d 1098 (11th Cir. 1983) ................-..00e- 22

American Jewish Congress v. City of Chicago,

ge eee 8, 11

Bowen v. Kendrick, ___ US. ___,

ee eee Kee eer Reena ens 5, 28

Bradfield v. Roberts, 175 U.S. 291 (1899) ............25.. 22

Committee for Public Education & Religious Liberty v.

Re CE env cccnneccessenccascesse 20

Edwards v. Aguillard, 482 U.S. __,

ed cis a caueckensssensns 2, 5, 24, 29

Engel v. Vitale, 370 U.S. 421 (1962) .............0.000 ee 30

Gilfillan v. City of Philadelphia, 637 F.2d 924

(3d Cir. 1980), cert. denied, 451 U.S. 987 (1981) ........ 22

Hague v. CIO, 307 U.S. 496 (1939) .... 02. eee eee eee 8

Heffron v. Internat’l Soc. for Krishna Consciousness,

Cee ee ues eed eee eheneene es 8

vii

PaGi

Hobbie v. Unemployment Appeals Comm'n of Florida

and Lawton & Co., 480 U.S. 136 (1987) .............. 21

Illinois ex rel. McCollum v. Board of Education,

cia a dadal cue dnwnnsedsensee’ passim

Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982) ....... 22

Larson v. Valente, 456 U.S 228 (1982) .................. 4

Lemon v. Kurtzman, 403 U.S. 602 (1971) ................. 2,4

Lynch v. Donnelly, 465 U.S. 668 (1984) ............... passim

Marsh v. Chambers, 463 U.S. 783 (1983) ............ 19, 23, 24

McCreary v. Store, 739 F.2d 716 (2d Cir. 1984), aff'd by

an equally divided Court sub nom., Bd. of Trustees of

Village of Scarsdale v. McCreary, 471 U.S. 83 (1985) .... 9, 22

McGowan v. Maryland, 366 U.S. 420 (1961) ............. 23

Quick Bear v. Leupp, 210 U.S. 50 (1908) ................ 21

Sherbert v. Verner, 374 U.S. 398 (1963) .................. 21

Stone v. Graham, 449 U.S. 39 (1980) ..........2..2..4.. 24

Tilton v. Richardson, 403 U.S. 672 (1971) .............. 22, 23

Wallace v. Jaffree, 472 U.S. 38 (1985) ............. 5, 22, 29, 30

Walz v. Tax Comm'n, 397 U.S. 664 (1970) ..........0.... 23

Widmar v. Vincent, 454 U.S. 263 (1981) .................. 8, 9

Zorach v. Clauson, 343 U.S. 306 (1952) ..... 3, 7, 20, 21, 23, 28

Constitution:

SLE § kneuoeccedduséebesbeduseess passim

vill

Other Authorities:

M. Kaplan, Meaning of God in Modern Jewish Religion

DEE cuvbdipdidhdmeddiesteks teesdegbbconeecos crs 15

Kelley, Beyond Separation of Church and State,

5 J. Church & State 181 (1963) ...................4. 19

Keller, Letter to the Editor, Jewish Observer,

SP a ci incgeauesbdien esses nbesseeesensee 16

A Maimonides Reader (Twersky, ed. 1972) .............. 15

Rabinove, Religious Symbols and Gov't: What's All the

Fuss?, Long Island Jewish World (Dec. 2-8, 1983) ..... 22

Rabinove, The Constitution and the Creche,

Reform Judaism, Winter 1984-1985 .................. 24

Nos. 87-2050, 88-90, 88-96

IN THE

Supreme Court of the United States

October Term, 1988

COUNTY OF ALLEGHENY, et al.,

Petitioners,

VS.

AMERICAN CIVIL LIBERTIES UNION

GREATER PITTSBURGH CHAPTER, et al.,

Respondents.

ON WP!T OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF THE AMERICAN JEWISH COMMITTEE,

THE NATIONAL COUNCIL OF THE CHURCHES OF

CHRIST IN THE U.S.A., THE UNION OF AMERICAN

HEBREW CONGREGATIONS, THE COUNCIL ON

RELIGIOUS FREEDOM, AND AMERICANS UNITED

FOR SEPARATION OF CHURCH AND STATE AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

This brief is submitted with the consent of the parties.

Statement of the Case

Amici xdopt and incorporate by reference the Counter-

Statement of the Case set forth in respondents’ Brief in Opposi-

tion to petitioners’ Petition for a Writ of Certiorari. The opinion

of the court of appeals is reported at 842 F.2d 655. The rulings of

the district court are unreported.

Summary of Argument

This Court has frequently acknowledged that our Establish-

ment Clause jurisprudence is comprised of a melange of compii-

ttFf!07aTaTT

cated holdings that, at times, perplex governmental officials

seeking guidance in the performance of their duties. Two justices

have even suggested that this jurisprudence is “embarrassing.”

See, e.g., Edwards v. Aguillard, 482 U.S.__, 107 S.Ct. 2573, 2607

(1987) (Scalia, J., dissenting, joined by Rehnquist, CJ.). Although

many decisions have been fractured, with slim majorities them-

selves affected by concurrences, one basic proposition that uni-

fies the Court is that “no fixed, per se rule can be framed for every

Establishment Clause case.” Lynch v. Donnelly, 465 U.S. 668, 678

(1984); see also Lynch, 465 U.S. at 694 (O’Connor, J., concurring)

(“Every government practice must be judged in its unique cir-

cumstances to determine whether it constitutes an endorsement

or disapproval of religion”); Lynch, 465 U.S. at 696 n.2 (Brennan.

J., dissenting, joined by Marshall, Blackmun and Stevens, JJ.)

(agreeing that “no single formula can ever fully capture the analvy-

sis that may be necessary to resolve difficult Establishment

Clause problems”).

The case at bar presents still another twist on the “creche di-

lemma” that was before this Court several years ago, and that has.

to this day, continued to plague officials and jurists throughout

the country. In this matter, the religious symbols displayed —a

creche and a menorah—were located, not in a private park open

to *4e public (as in Pawtucket), but at the very seat of Government

(County Courthouse and Municipal Building). The Third Circuit

Court of Appeals thus acted well within its jurisdiction in apply-

ing the analysis of Lernon v. Kurtzman, 403 U.S. 602 (1971), as am-

plified through Lynch, to find that the rejigious displays erected

by the County of Allegheny (the “County”) and the City of Pitts-

burgh (the “City”) conflict with the Establishment Clause of the

First Amendment to the United States Constitution. In reaching

its conclusion that the City and County impermissibly acted to

advance religion (in violation of the second prong of the Lemon

test), the court of appeals appropriately examined the salient fac-

tual differences between this case and Lynch, fulfilling the direc-

tive of this Court that each case be viewed in its own setting.

First, unlike the display in Lynch, “[eJach display [here] was

located at or in a public building devoted to core functions of gov-

ernment and each was placed at a prominent site at the public

building where visitors would see it.” 842 F.2d at 662. Further,

both government buildings at issue herein house courtrooms,

compelling attendance at the displays by many people who might

otherwise choose to avoid them.

Second, the creche and menorah at issue here were not sub-

sumed by a larger display of secular items. Thus, unlike the dis-

play in Lynch, the religious significance of those sectarian

symbols is not negated by their context and the message the City

and County necessarily communicate is, at least, one of implicit

endorsement of Christianity and Judaism. Irrespective of the gov-

ernment’s actual purpose, such public perception of government

endorsement of particular sects requires the invalidation of that

government practice. Lynch, 465 U.S. at 691-92 (O’Connor, J.,

concurring).

Equal access for the symbols of other faiths is not a solution

to that dilemma. “Separation [of church and state] is a require-

ment to abstain from fusing functions of Government and of re-

ligious sects, not merely to treat them all equally.” J/linois ex rel.

McCollum v. Board of Education, 333 U.S. 203, 227 (1948) (opin-

ion of Frankfurter, J.). Notions of accommodation of religion are

not properly implicated where, as here, neither inclusion of a

creche by the County in its holiday display nor inclusion of a

menorah in the City’s display is necessary to accommodate relig-

ious expression. There is simply no religious need to display relig-

ious symbols of any faith in government buildings.

Finally, as an alternative to the “line-drawing” analysis argu-

ably necessitated by Lynch, amici respectfully suggest that the ra-

tionale of that decision be reexamined. Prior Establishment

Clause cases, while recognizing the role that religion plays in

American life, and approving references to, and accommodation

of, religion, nonetheless did so in a “non-denominational” man-

ner. In allowing students to be released from public school for

religious training, neither government nor this Court was asked to

ordain that a particular religion be accorded special treatment.

Zorach v. Clauson, 343 U.S. 306 (1952).

In Lynch, however, the Court broke with established prece-

dent by allowing state sanction of a particular religion’s sacred

symbol, the creche. Here, this Court is being asked to overturn

the decision below and now sanction the placement of two groups’

religious symbols—Christianity’s creche and Judaism's

menorah—at the heart of the City and County government center.

If any one precept emerges from the welter of decisions before us,

it is that “[t}he clearest command of the Establishment Clause is

that one religious denomination cannot be officially preferred

over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). Be-

cause the effect of Lynch is to produce just that result, the deci-

sion should be overruled.

ARGUMENT

THE COURT OF APPEALS FOR THE THIRD CIRCUIT

CORRECTLY HELD THAT IN PERMITTING THE

PLACEMENT OF THE CRECHE AND MENORAH, THE

CITY AND COUNTY HAVE IMPROPERLY ADVANCED OR

ENDORSED RELIGION IN CONTRAVENTION OF THE

SECOND PRONG OF THE LEMON TEST

A. The Court of Appeals Properly Examined the Challenged

Placement of Religious Symbols Under the Lemon Test

There can be no question, and the Third Circuit Court of

Appeals did not dispute, that “the starting point of our analysis

should be Lynch v. Donnelly.” 842 F.2d at 659. However, as recog-

nized by the court of appeals, that decision was rendered by a

“sharply divided” Court, id., and “has by no means put to rest is-

sues involving use of religious decorations at the Christmas sea-

son nor has it foreshadowed any abandonment of the Lemon test

which the Supreme Court continues to employ.” Jd. at 660 (cita-

tions omitted).' Accordingly, the court of appeals carefully exam-

ined the creche and menorah at issue here and applied the

three-pronged test of Lemon v. Kurtzman, 403 U.S. 602 (1971), the

same test used by this Court in Lynch.

In applying that test, it first found that the second prong of

the Lemon test is the one most readily violated, “as a public entity

usually is able to articulate some secular purpose for a display

' The court of appeals also noted that “probably because the opinion (in Lynch]

was tied so closely to the facts involved and because of the nature of the issues,

there has been considerable post-Lynch litigation with the judges as well as the

litigants at odds.” 842 F.2d. at 660.

(first prong) and the mere placement and storage of a display will

involve little entanglement (third prong) of government and relig-

ion.” 842 F.2d at 661-62. Since “the impact of the display must be

judged objectively,” however, “the use of a religious symbol in a

display on public property or by a public entity may well be

deemed an endorsement of religion regardless of an entity's

stated reasons for its placement. .. .” 842 F.2d at 662.

With respect to the second prong, the court held that six vari-

ables should be considered in deciding whether a display has the

effect of advancing or endorsing religion:

(1) the location of the display; (2) whether the display is part

of a larger configuration including nonreligious items; (3) the

religious intensity of the display; (4) whether the display is

shown in connection with a general secular holiday; (5) the

degree of public participation in the ownership and mainte-

nance of the display; and (6) the existence of disclaimers of

public sponsorship of the display.

Id. Having considered these criteria, the court of appeals con-

cluded that “by permitting the creche and the menorah to be

placed at the buildings the city and county have tacitly endorsed

Christianity and Judaism and have therefore acted to advance re-

ligion.” Id.

Appellants, as well as the dissenting judge in the court of ap-

peals, take issue with the majority's (and various other circuit

courts’) post-Lynch examination of seasonal creche displays un-

der the Lemon test. See, e.g., Brief of Petitioner, County of Al-

legheny (“County Br.”) at 12-13; Brief for the United States as

Amici Curiae Supporting Petitioner (“U.S. Br.”) at 5; see also

ACLU v. County of Allegheny, 842 F.2d at 669 (Weis, J., dissent-

ing). However, notwithstanding this Court’s admonition in Lynch

that “[w]je have repeatedly emphasized our unwillingness to be

confined to any single test or criterion in this sensitive area,” 465

U.S. at 679, it was the Lemon test that this Court applied in Lynch.

See Lynch, 465 U.S. at 679-85. Moreover, this Court has contin-

ued to endorse the use of that test, whatever its limitations. See

Bowen v. Kendrick, __ U.S. __, 108 S.Ct. 2562 (1988); Edwards v.

Aguillard, 482 U.S. __, 107 $.Ct. 2573, 2576-78 (1987); Wallace v.

Jaffree, 472 U.S. 38, 55-61 (1985).

Further, this Court never explicitly held that its decision in

Lynch was intended to end for all time questions concerning the

constitutionality of creche displays during the Christmas season.

In fact, much of the language of the opinion, as well as the fact-

specific nature of these cases, suggest the opposite.2 Hence, there

is nO merit in the suggestion by appellants or the Solicitor General

that the court of appeals should not have “proceeded to make its

own application of the three-prong test of Lemon v. Kurtzman to

the facts of this case.” (U.S. Br. at 5.)

B. The Placement of the Creche and Menorah at Seats of

Government Distinguishes this Case from Lynch

In reaching its conclusion that the City and County acted to

advance religion, the court of appeals distinguished Lynch in a

number of respects. First, it noted that here, unlike the display in

Lynch, “[ejach display was located at or in a public building de-

voted to core functions of government and each was placed at a

prominent site at the public building where visitors would see it.”

842 F.2d at 662. In fact, the County Courthouse in which the

creche was displayed houses the County’s executive officers, its

commissioner, controller, treasurer and sheriff, as well as some of

its criminal and civil courts. The City-County Building, on the

front steps of which the menorah was placed, houses the offices

and chambers of the Mayor and City Council, the office of the

City Treasurer, the County Prothonotary (Clerk), the marriage li-

cense bureau and the Register of Wills, as well as the principal

county civil trial courts, the Supreme and Superior Courts.

While appellants argue that Lynch was not intended to be

given a narrow application dependent on the physical location of

a display (Brief of Petitioner, City of Pittsburgh (“City Br.”) at 17;

County Br. at 21-23; see also U .S. Br. at 8, 14), there is ample

authority in the opinion itself for the opposite conclusion. See,

e.g., 45 U.S. at 671; 465 U.S at 692-93 (O'Connor, J., concurring)

* See, e.g, Lynch, 465 U.S. at 678 (“in each case, the inquiry calls for line drawing;

no fixed, per se rule can be framed”); 465 U.S. at 686 (“{t)}he presence of the

creche in this display [does not] violate{ | the Establishment Clause . . .”); 465

US. at 692, 694 (O'Connor, J., concurring) (referring to the “government's dis-

play of the creche in this particular physical setting” and stating that “[e]very gov-

ernment practice must be judged in its unique circumstances to determine

whether it constitutes an endorsement or disapproval of religion”) (emphasis

added).

(“These features combine to make the government’s display of

the creche in this particular physical setting no more an endorse-

ment of religion than [other] governmental ‘acknowledgments’ of

religion [upheld by the Court]”) (emphasis added). See also 465

U.S. at 695 (Brennan, J., dissenting) (“[t}he Court reaches an es-

sentially narrow result which turns largely upon the particular

holiday context in which the City of Pawtucket’s nativity scene ap-

peared”).

Moreover, the distinction among religious symbols, as to

their acceptability, dependent upon whether they are located on

private property, public parks or government buildings, is clearly

supported by earlier Supreme Court precedent. In Illinois ex rel.

McCollum v. Board of Education, 333 U.S. 203 (1948), this Court

held that religious teachers employed by private religious groups

could not, consistent with the Establishment Clause, come into

public school buildings during school hours to provide religious

instruction. This Court stated:

Here not only are the state’s tax-supported public school

buildings used for the dissemination of religious doctrines.

The State also affords sectarian groups an invaluable aid in

that it helps to provide pupils for their religious classes

through use of the state’s compulsory public school machin-

ery. This is not separation of Church and State.

333 US. at 212.

In contrast, this Court upheld in Zorach v. Clauson, 343 U.S.

306 (1952), the release of school children from the public schools

in order to obtain religious instruction provided on private prop-

erty. This Court stated:

This “released time” program involves neither religious in-

struction in public school classrooms nor the expenditure of

public funds.... The case is therefore unlike McCollum v.

Board of Education {citation omitted] which involved a “re-

leased time” program from Illinois. In that case the class-

rooms were turned over to religious instructors. We

accordingly held that the program violated the First Amend-

ment... .

Id. at 308-09 (emphasis added); see also 343 U.S. at 316 (Black, J.,

dissenting) (“I see no significant difference between the invalid

Illinois system and that of New York here sustained{ ] [e]xcept for

the use of the school buildings in Illinois . . .” (emphasis added).

Obviously, then, the public/private land distinction ad-

vanced here and adopted by the court of appeals herein (as well as

by the Sixth Circuit in ACLU v. City of Birmingham, 791 F.2d 1561

(6th Cir.), cert. denied, 479 U.S. 939 (1986); and by the Seventh Cir-

cuit in American Jewish Congress v. City of Chicago; 827 F.2d 120

(7th Cir. 1987)) does not, as suggested by the County, “require this

Court to give special significance to a factor treated as essentially

irrelevant in prior cases.” (County Br. at 26).

Nor is there any merit to the argument of the Solicitor Gen-

eral that the “effect of the display . . . [is] the same regardless of

location” (U.S. Br. at 8, 15). Indeed, placement of reiigious sym-

bols such as the creche and menorah at the seat of government,

rather than on private or even mere public park land,? results all

the more markedly in the government's “imprimatur of approval”

being placed on the particular religious beliefs exemplified by the

symbols. Cf. Lynch, 465 U.S. at 702 (Brennan, J., dissenting). As

stated by the Court of Appeals for the Seventh Circuit in Ameri-

can Jewish Congress v. City of Chicago, 827 F.2d at 128:

The presence of the government in Chicago's City Hall is un-

avoidable. The building is devoted to government functions:

for example, both city and county government offices are lo-

cated there, and the City Council holds its meetings there.

Because City Hall is so plainly under government ownership

and control, every display and activity in the building is im-

plicitly marked with the stamp of government approval. The

presence of a nativity scene in the lobby, therefore, inevitably

® After all, public park land or “commons” have been used for religious meet-

ings and observance since time immemonal, subject only to reasonable regu-

lation as to time, place and manner. See, e.g, Hague v. CIO, 307 U.S. 496, 515

(1939), Heffron v. Internat’! Soc. for Krishna Consciousness, 452 U S. 640198 1).

The crucial distinction between a traditional public forum, like a park, and

the seat of government is suggested by Widmar v. Vincent, 454 U.S. 263 (1981),

a case central to Chabad’s ment for inclusion of a menorah in the City’s

holiday display. See Brief for Petiti Chabad (“Chabad Br.”) at 24, 30-31.

In Widmar, this Court held that a state university, which makes its facilities

generally available for the activities of registered student groups, may not

close its facilities to a registered student group desiring to use the facilities for

religious

(foomote continued on next page)

creates a clear and strong impression that the local govern-

ment tacitly endorses Christianity.

The message of endorsement is equally powerful on the sym-

bolic level. Like the nativity scene itself, City Hall is a sym-

bol—a symbol of government power. The very phrase “City

Hall” is commonly used as a metaphor for government. A

creche in City Hall thus brings together Church and State in

a manner that unmistakably suggests their alliance. The dis-

play at issue in this case advanced religion by sending a mes-

sage to the people of Chicago that the city approved of

Christianity.

Additionally, since both government buildings at issue

herein contain courtrooms and offices for essential city and

(footnote continued from previous page)

worship and discussion. The Court, in applying the second prong of the

Lemon test, stated:

First, an open forum in a public university does not confer any imprimatur

of state approval on religious sects or practices. . . . Second, the forum is

available to a broad class of nonreligious as well as religious speakers. . . .

The provision of benefits to so broad a spectrum of groups is an important

index of secular effect.

454 U.S. at 274; 454 U.S. at 280-281 (Stevens, J., concurring in judgment) (“the

record discloses no danger that the University will appear to sponsor any par-

ticular religion”)

In contrast, and unlike the public park at issue in McCreary v. Stone, 739 F.2d

716 (2d Cir. 1984), aff'd by equally divided court sub nom., Bd. of Trustees of

Village of Scarsdale v. McCreary, 471 U.S. 83 (1985), the Allegheny County

Courthouse, and the Grand Staircase in particular, is not an open public fo-

rum or traditional marketplace of ideas. See Widmar, 454 U.S. at 271 n.10 (“It

is the avowed purpose of [the university] to provide a forum in which students

can exchange ideas.”) In addition, the duration of the display, its size, and

permanence all serve to distinguish the creche and menorah from an instance

of transitory speech tolerated by the state, as in Widmar, and make it more

akin to the imposition of official doctrine endorsed by the state. Notably, al-

though some art and culture displays are exhibited in the County Courthouse

during the year, according to the Director of the Bureau of Cultural Pro-

grams, no displays other than the creche had appeared on the Grand Stair-

case—the most beautiful and focal point of the building’s interior—during

her tenure. Joint Appendix (“J.A.”) 201-04.

Where religious groups dominate even an open forum, the advancement of

religion becomes the forum's unconstitutional primary effect. Widmar, 454

US. at 275. Where the forum is a building devoted exclusively to the admini-

stration of the law and government, as here, the impermissible effect of the

religious display is that much greater.

Uy

10

county services, bringing a good many people into contact with

the City’s and County’s displays who might otherwise choose to

avoid them (see J.A. 110-12, 124-25), there is the same element of

compulsion here as was found to invalidate the “released time”

program in McCollum, 333 U.S. at 212.4 Accordingly, the court of

appeais correcily held that the placement of the creche and

menorah at prominent sites at “public building{s] devoted to core

functions of government” was a significant factor distinguishing

this case from Lynch v. Donnelly, 842 F.2d at 662.

C. The Fact that the Creche and Menorah Here Were

Unadorned and Not Part of Some Larger, Secular Display,

Distinguishes this Case from Lynch

The court of appeals also distinguished Lynch on the ground

that the creche and menorah at issue here could not “reasonably

be deemed to have been subsumed by a larger display of non-re-

ligious items,” 842 F.2d at 662, while the Pawtucket creche was

part of a Christmas display including, inter alia, a Santa Claus

house, reindeer pulling Santa's sleigh, a cut-out clown, a Christ-

mas tree, and a talking wishing well (Lynch, 465 U.S. at 671). See

also ACLU v. City.of Birmingham, 791 F.2d at 1566 (prohibiting

display of “unadorned creche” not “surrounded by a multitude of

secular symbols of Christmas”).

This is a legitimate basis for distinction, insofar as the mes-

sage of “endorsement” of the clear religious significance of the

creche —acknowledged by this Court in Lynch 5—is not so easily

“negated” (465 U.S. at 692 (O’Connor, J., concurring)) when the

“overall holiday setting” (id.), as at the County Courthouse, in-

* This Court stated in McCollum that “{t}he public school is at once the sym-

bol of our democracy and the most pervasive means for promoting our com-

mon destiny.” 333 U.S. at 231 (opinion of Frankfurter, J.). The same can

certainly be said for City Hall and the courts in our country.

* See, e.g, Lynch, 465 U.S. at 680-81, 685-88; see also 465 U.S. at 692 (O’Con-

nor, J., concurring) (“the religious and indeed sectarian significance of the

creche .. . is not neutralized by the setting... ); 465 U.S at 711 (Brennan, J.,

dissenting) (“The essence of the creche’s symbolic purpose and effect is to

prompt the observer to experience a sense of simple awe and wonder appro-

priate to the contemplation of one of the central elements of Christian

dogma—that God sent His Son into the world to be a Messiah”); 465 U.S. at

727 (Blackmun, J., dissenting) (referring to the creche as a “sacred symbol”).

Eee MEA OPA DP wat ee Bl

11

cludes only the creche itself.6 Since the menorah placed on the

steps of the City-County Building was similarly “unadorned” by

non-religious items which might have combined to “negate” the

message that the City of Pittsburgh endorses Judaism or the

Judeo-Christian religions,” the court of appeals’ conclusion that

the menorah was distinguishable from the display upheld in

Lynch was also proper.

Appellants and the United States all argue vigorously that a

rule of law that depends on “marginal differences in holiday dis-

plays” (U.S. Br. at 17) like the existence of a “cut-out clown, rein-

deer, or talking wishing well” (id.), is ill-advised. Similarly, the

dissenting judges in American Jewish Congress v. Chicago, 827

F.2d at 130 (Easterbrook, J., dissenting), and ACLU v. City of Bir-

mingham, 791 F.2d at 1569 (Nelson, J., dissenting), argue that it is

“appalling” for the courts to mandate “how much paganism” is

required in holiday displays in order for them to pass constitu-

tional muster. While admiring the eloquence of these statements,

we are unsympathetic to the position embodied in them.

First, distinctions based on such differences in displays only

become significant when they are not “marginal.” Thus, questions

concerning whether a display contains two reindeer or three, or a

candy cane, a reindeer and a Santa Claus, will not, as feared by

the County, “artificially elevate[ | trifling details about the par-

ticulars of a municipal display into matters of high and vital con-

® The Solicitor General's attempt to persuade this Court that the red and

white poinsettia plants which surround the creche here at issue are in some

way equivalent to the secular objects adorning the Pawtucket creche, is

wholly without merit. Indeed, an examination of the photographs of the

creche (Joint Exhibit Volume (“J.E.”) 6-8) reveals that, if those plants have

any impact on the display at all, it is to draw one’s attention all the more to

the nativity scene. Such floral settings, moreover, are commonly used in

Catholic church creche displays. (J.A.78). Thus, the poinsettias certainly

cannot be equated, in terms of “chang{ing] what viewers may fairly under-

stand to be the purpose of the display” (Lynch, 465 U.S. at 692 (O'Connor,

J., concurring)), with a typical museum setting.

’ The placement of the menorah next to the Christmas tree does not accom-

plish this “negation.” The Christmas tree is, for present purposes, consid-

ered a secular symbol of Christmas. Its placement next to the menorah—in

our view a religious symbol of Chanukah (see discussion, infra, at subsection

D)—if anything, emphasizes the independent significance of each as repre-

senting separate and distinct holidays, and cannot be said to negate the en-

dorsement inherent in the display of the menorah.

12

stitutional importance” (County Br. at 18). Rather, only

questions concerning whether a display contains a religious sym-

bol as the most prominent or only item, as would the display of a

creche or menorah standing alone, or whether, conversely, it con-

tains both religious and non-religious symbols, need be passed

upon.

Second, the importance of distinctions based on content is

suggested by this Court’s analysis in Lynch. This Court not only

described the secular contents of the display, 465 U.S. at 671, but

went further and described the impact of the display on the com-

munity. This Court stated, “the display brings people into the

central city, and serves commercial interests and benefits mer-

chants and their employees. . . .” 465 U.S. at 685. While the

Court’s point, in the cited statement, was that the religious char-

acter of the display was not thereby undermined, it is still si gnifi-

cant that none of the same commercial interests is served here.

Moreover, even if the particular content of the Pawtucket

display, i.e., the fact that it contained non religious symbols, was

not intended by the majority of this Court to form the basis for the

Lynch holding, such a limitation is necessary in order to preserve

the integrity of that decision’s reasoning. As expressed by the

Seventh Circuit Court of Appeals in ACLU v. City of St. Charles,

794 F.2d 265 (7th Cir.), cert. denied, 479 U.S. 961 (1986), which

considered the nativity scene a “mixed case:”

The Nativity scene is an unmistakable reminder of the holi-

day’s religious origins. Yet it does not follow that its inclu-

sion in a Christmas display lacks secular purpose, or that its

predominant effect is to promote Christianity. See Lynch v.

Donnelly, supra, 465 U.S. at 680-82. As Justice O’Connor ex-

plained in her concurring opinion in Lynch, once it is con-

ceded that the government can celebrate Christmas as a

public holiday,despite its religious origins and continued re-

ligious significance to believing Christians, the inclusion of

the Nativity scene in the celebration is seen to serve a secular

purpose—“celebration of a public holiday with traditional

symbols,” id. 465 U.S. at 693, 104 S.Ct. at 1369—and there-

fore “cannot fairly be understood to convey a message of

government endorsement of religion.” Jd. One may question

whether the second proposition follows from the first: the

oe et ent cath ta ee le haa mes

13

purpose could be secular, but the dominant effect to pro-

mote Christianity. Yet maybe not, where as in the Lynch case

the Nativity scene is mixed in with the other traditional symbols

of Christmas, most of which either never had or have lost their

Christian connotations.

794 F.2d at 272 (emphasis added). In that court’s view, with which

we concur, the foundation of the Lynch decision—that the cele-

bration of a public holiday (even one with religious origins) with

traditional symbols will not be understood as conveying a mes-

sage of endorsement—fails when the only “traditional symbol”

displayed is one with such a strong Christian connotation. Fi-

nally, to the extent that an examination of displays on a case-by-

case basis is required, such a result is mandated by the Lynch

decision itself. Lynch did not determine for all time that all nativ-

ity scenes are permissible when displayed in the month of Decem-

ber, much less that all Christmas or all religious symbols are so

permissible. Then Chief Justice Burger, writing for the majority,

stated: “In each case, the inquiry ca!’ for line-drawing; no fixed,

per se rule can be framed. The Establishment Clause... erects a

‘blurred, indistinct, and variable barrier depending on all the cir-

cumstances of a particular relationship.” 465 U.S. at 679. Chief

Justice Burger also framed the issue before the Court as whether

“the presence of the creche in this display violates the Establish-

ment Clause... .” Jd. at 686 (emphasis added).

Thus, the Court took on the responsibility for determining,

on an individual basis, whether the effect of the symbol or display

at issue is to promote the religion it represents. The instant case,

in which the County of Allegheny argues that its creche and the

City of Pittsburgh argues that its menorah—both of which appear

in radically different contexts than the creche upheld in Lynch —

do not have such an effect, is a perfect example. Accordingly, the

criticism advanced by appellants, that the need for a case-by-case

analysis negates a distinction based on content, is misplaced.

D. The Court of Appeals Correctly Held That the Creche and

the Menorah Are Associated With Religious Holidays and

Would Be Viewed As Pertaining to a Particular Religion

In reaching its conclusion that by permitting the display of

the creche and menorah, the City and County had tacitly en-

14

dorsed Christianity and Judaism, the court of appeals found that

“both the creche and the menorah are associated with religious

holidays and would be viewed as pertaining to a particular relig-

ion.” 842 F.2d at 662. With respect to the creche, there can be

little doubt about its religious significance. As recognized by this

Court in Lynch, the creche, even when surrounded by other, secu-

lar symbols of Christmas, remains a religious symbol. Indeed, it

is difficult to imagine a symbol which more quintessentially em-

bodies the doct~ine underlying the Christian faith itself than the

creche—which celebrates, in adorational terms—the birth of Je-

sus as the Son of God.

With respect to the menorah, however, Chabad, which repre-

sents a small segment of the Jewish community known as the

Lubavitch (see J.A. 247, 250-53), takes a different view. Presum-

ably in an attempt to have the placement of the menorah deemed

constitutional even in the event that this Court adopts the posi-

tion advanced here—that a creche, standing alone, as opposed to

one surrounded by secular symbols, will not pass constitutional!

muster because of its clear, “unnegated” religious significance —

and perhaps even in the event that this Court reconsiaers its deci-

sion in Lynch and holds that a municipality may not display a

creche of any kind (see Point III, infra), Chabad argues that the

menorah is not a religious symbol. Specifically, it argues that the

menorah “symbolizes not only a particular religious observance

* We presume that this is Chabad’s motive because, simply stated, we can

imagine no other reason why a fundamentalist group like Chabad would re-

sort to taking a position so contrary to its own basic tenets, and so offensive to

other Jews. Since Chabad has not contested the viability of the Lynch deci-

sion, as we do (see Point III), and since that decision would presumably pro-

tect a municipality's display of any similarity adorned holiday display, at least

as long, one supposes, as the symbol were not more religious than a creche

(cf ACLU v. City of St. Charles, 794 F.2d 265), then we can understand

Chabad’s desire to publicize that the menorah is not as religious a symbol as

the creche. But the only conceivable explanation for their going further, and

claiming that the menorah has no religious significance at all, is that they are

attempting to remove that symbol completely from the Lynch domain, and

equate it instead with a symbol which appears not to need judicial approval,

ie., the Christmas tree. We respectfully Ss" ggest that Chabad’s position, how-

ever creative, is disingenuous, at best.

(footnote continued on next page)

15

unique to Judaism, but also cultural and nationa! aspirations, as

well as universal human values.”® We strongly disagree.

First, notwithstanding Chabad’s attempt to equate a

menorah with a Christmas tree (J.A. 44), the menorah is not and

never has been a “holiday decoration” which must have its place

with the others of the season. The menorah is associated with

Chanukah, a religious holiday commemorating the rededication

in 165 B.C. of the second Holy Temple, after recapturing it from

the Syrian Greeks..°° The word “Char -..ah,” in fact, means

“rededication.” This holiday, while perhaps not the most impor-

tant on the Jewish calendar, is still significant enough that, during

its observance, pursuant to religious law, adherence to certain re-

ligious customs and commandments reflecting sadness —such as

delivering public euiogies—ceases and the Hallel, a prayer mark-

ing Jewish festivals, is recited. A Maimonides Reader, 118- 19

(Twersky, ed. 1972).

(footmote continued from previous page)

in this regard, we also note the flaw in the City of Pittsburgh's criticism of the

court of appeals’ position on the menorah. The City states: “If a creche which

depicts a central religious event of this country’s dominant religion does not

advance religion and violate the Establishment Clause, a Chanukah menorah,

which is both a religious and cultural symbol of a minority religion's feast com-

memorating a battle, cannot advance religion and violate the Establishment

Clause” (City Br. at 15). However, the court of appeals did not hold, and neither

we nor respondents argue herein, that the creche is constitutional while the

menorah is not; on the contrary, we are in agreement with the court of appeals

that neither is permitted under the Establishment Clause. Conversely, in those

contexts where, under Lynch, a creche would be permissible (however un-

wisely), a menorah woulc be permissible as well.

® Chabad even accepts —indced, advances —the finding of the district court that

the menorah “has no particular religious significance when placed in a public

location beyond signifying a ‘Light to the World’ somewhat like the Christmas

message ‘Peace on Earth, Goodwill to Men” (Chabad Br. at 30.)

‘© Rabbi Mordecai M. Kaplan, one of the preeminent Jewish scholars of the 20th

century and founder of the Reconstructionist branch of Judaism has noted that:

The striking feature of the celebration of Hanukkah is the fact that, although

the occasion which it commemorates was incidental to a successful war of

independence fought against an oppressive foreign ruler, that occasion itself

was neither a victory on the field of battle nor a political transaction that gave

official recognition to the hard-won independence of Judaea. Hanukkah

commemorates the rededication of the Temple at Jerusalem to the God of

Israel after it had been deliberately defiled by the Grecian rulers.

M. Kaplan, The Meaning of God in Modem Jewish Religion (1937) at 330.

16

The menorah itself is, as explained by Rabbi Chaim Dov

Keller recently in the November 1988 issue of the Agudath Israel's

publication The Jewish Observer.

a cheftza shel mitzva—an article used for a mitzva [good deed

ordained by religious law]. When we perform the mitzva as

the halacha [religious law] requires, then we have brought

about a pirsumei nisa—a proclamation of a Divine miracle.

This is the will of the Almighty —that we perform the mitzva

as our Sages prescribed.

Keller, Letter to the Editor, Jewish Observer, Nov. 1988 at 39. In

accordance with this religious purpose, as the record below re-

flects, during Chanukah, Jews are obligated to light a menorah

nightly, accompanied by the recitation of prayers. The English

translation of the traditional Hebrew Chanukah blessing recited

at the City-County menorah lighting was: “We are blessing God

who has sanctified us and commanded us with mitzvot and has

told us to light the candles of Hanukkah.” J.A. 306.

Chabad’s own witness admitted on cross-examination that

displaying and lighting the Chanukah menorah outside the ome

is in fulfillment of the command of the Shulchan Aruch, the Code

of Jewish Law, “pirsumnay nissah” —“mak{e] public the miracle.”

(J.A. 266-71).'' Thus, notwithstanding Chabad’s attempt to per-

suade the Court that this lighting “does not constitute a ‘religious’

act,” see Declaration of Rabbi Yisroel Rosenfield (J.A. 43), it is

clear that the lighting of the menorah is an integral part of the ob-

servance of Chanukah and the effect of such lighting, and of the

menorah itself, is to “send a message . . . to adherents [of the Jew-

ish faith] that they are insiders, favored members of the politica!

community.” Lynch, 465 U.S. at 688 (O'Connor, J., concurring).

In sum, a menorah may not be a “sacred object” in the same

sense as a Torah Scroll, but Chabad simply goes too far in insist-

ing that the menorah “is not an inherently religious object” and

that it has “no religious significance whatever” (Chabad Br. at

'' The Shulchan Aruch was compiled by Yosef Caro, a Talmudic scholar, in the

mid-sixteenth century and is considered an authoritative text. See J.A. 256. See

also Babylonian Talmud, Tractate “Sabbath” 21b-22a (Rashi, the preeminant

commentator on the Talmud, the authoritative work of halachic Jewish tradi-

tion, points out that the menorah, at Chanukah, is to be openly displayed, to

enhance public recognition of the miracle that was wrought).

=< Sree Se

17

25). While a menorah may, as Chabad claims, not be analogous to

a creche —which symbolizes the central underpinnings of Christi-

anity itself—it is the central religious symbol of Chanukah. As

correctly held by the court of appeals, “the general public would

[not] be aware of the religious fine point made by Chabad and

thus [would not] view the display of the menorah as a lesser en-

dorsement of religion than that of a Torah Scroll or other object

regarded as sacred.” 842 F.2d at 662.

At a minimum we would uvge this Court to affirm the court

of appeals’ holding that “regardless of the lack of religious signifi-

cance of a menorah its sectarian character is clear and thus even

though it may not be regarded as a sacred object its placement

was an endorsement of religion.” Jd.

E. The Placement of the Creche and Menorah in this Case

Convey A Message of Endorsement of Religion Within the

Meaning of Justice O’Connor’s Concurrence In Lynch

Distinguishing the creche and menorah at issue here from

the Pawtucket holiday display upheld in Lynch is consistent with

Justice O’Connor’s concurring opinion in that case. In that opin-

ion, Justice O'Connor suggested an approach which examined

whether government conduct “endorsed” or “disapproved” of re-

ligion:

What is crucial is that a government practice not have the

effect of communicating a message of government endorse-

ment or disapproval of religion. It is only practices having

that effect, whether intentionally or unintentionally, that

make religion relevant, in reality or public perception, to

status in the political community.

465 U.S. at 692.

Endorsement sends a message to nonadherents that they are

outsiders, not full members of the political community, and

an accompanying message to adherents that they are insid-

ers, favored members of the political community. Disap-

proval sends the opposite message.

Id. at 688.

With respect to the creche at issue in Lynch, Justice O’Con-

nor determined that “although the religious and indeed, sectarian

18

significance of the creche .. . is not neutralized by the setting, the

overall holiday setting changes what viewers may fairly under-

stand to be the purpose of the display—as a typical museum set-

ting, though not neutralizing the religious content of a religious

painting, negates any message of endorsement of that content.”

Id. at 692.

The differences between the displays at issue here and the

one involved in Lynch, however, are differences which signifi-

cantly influence the “effect” of such displays on the average ob-

server who is not an adherent of the represented faiths. Both the

lack of secular symbols adorning the displays at issue here and

their placement on government headquarters differentiate this

case from Lynch, insofar as they severely undermine the extent to

which the religious significance of the displays is “negated.”

As stated by the Seventh Circuit Court of Appeals in ACLU

v. City of St. Charles, 794 F.2d at 271, “the more sectarian the dis-

play, the closer it is to the original targets of the [Establishment]

clause, so the more strictly is the clause applied.” Where, as here,

the displays are unadorned by non-religious objects which could,

if present, combine to “change{ | what viewers may fairly under-

stand to be the purpose of the display,” Lynch, 465 U. S. at 692,

and where, as here, they are placed at the very seat of govern-

ment—indeed, at extremely prominent, even prime, locations at

those government buildings'?—there is simply no barrier of the

kind found in Lynch to the government’s communication of a

message of endorsement of religion. The result, inescapably, is

that adherents of the faiths represented by the creche and

menorah—Christians and Jews—will receive a message that

“they are insiders, favored members of the political community,”

and that non-adherents will receive “the opposite message.” /d.

at 688.'9

'*J.A. 176, 185-86, 206-07.

'? The record in this case clearly supports this conclusion. Howard Elbling, a law-

yer and clerk to a Common Pleas Judge, regularly was required to appear at the

Allegheny County Courthouse in order to perform duties of his clerkship and

(footnote continued on next page)

19

Equal access for the symbols of other faiths is not an escape

from this fundamental concern. “Separation [of church and

state] is a requirement to abstain from fusing functions of Gov-

ernment and of religious sects, not merely to treat them all

equally.” McCollum, 333 U.S. at 227 (opinion of Frankfurter, J.).

First, while the City and the County may open their innermost

precincts to the displays of all sects, not all may be willing or able

to provide such displays. The record is clear that Moslems do not

depict their concept of God through representational paintings,

sculpture or similar displays. J.A. 110-11. Atheists, certainly,

would be hard pressed to propose a symbol comparable to the

creche or the menorah. Other sects, fearing the trivialization of

their symbols, may decline to participate.'* Persons belonging to

those non-participating sects will be made to feel “outsiders, not

full members of the political community,” Lynch, 465 U.S. at 688

(O'Connor, J., concurring). Irrespective of the government's ac-

tual purpose, such public perception of government endorsement

of particular sects requires the invalidation of that government

(footnote continued from previous page)

practice. Mr. Elbling, a Jew, testified that he had passed the creche four to six

times a day, perhaps thirty to thirty-five times in all (J.A. 124), that he could

not get to work by his normal route without passing it, and that each time he

felt more offended (J.A. 125) The creche:

just evoked from me a memory of middle ages time when my people were

persecuted and forced to live in guettos [sic]. You know, as a, as an Ameri-

can, as a tax paying citizen, I don’t think that I have to be reminded of that

as I walk into a public building.

J.A. 125; see also J.A. 128.

'« This concern has been eloquently stated by a leading Methodist clergy man:

[Some propose] to reassert religious values by posting the Ten Com-

mandments on every school-house wall, by erecting cardboard nativity

shrines on every corner, by writing God's name on our money, and by us-

ing His Holy Name in political oratory. Is this not the ultimate in profan-

ity.

What is the result of all this disp!»y of holy things in public places? Does it

make the market-place more holy? Does it improve people? Does it

change their character or motives? On the contrary, the sacred symbols

are thereby cheapened and degraded. The effect is often that of a televi-

sion commercial on a captive audience —boredom and resentment.

Kelley, Beyond Separation of Church and State, 5 J. Church & State, 181,

190-91 (1963). See also Marsh v. Chambers, 463 U.S. 783, 804 & n.16 (1983)

(Brennan, J., dissenting).

20

practice. Lynch, 465 U.S. at 692 (O'Connor, J., concurring)

(“What is crucial is that a government practice not have the effect

of communicating a message of government endorsement or dis-

approval of religion.”).

Second, the proffered “solution” of equal access for all relig-

ions to the seat of government for the display of their symbols will

inevitably lead to a heightened and impermissible entanglement

between religion and state. Government efforts to accommodate

the demands of religious groups for inclusion of their symbols will

result in tensions between religious and civil authorities and

among religious groups as the issues of placement, propriety and

size of display are addressed, particularly where the display space

available at the house of government, as here, is not unlimited.

Competing efforts for this limited resource may “occasio[n] con-

siderable civil strife .”. Committee for Public Education & Relig-

ious Liberty v. Nyquist, 413 U.S. at 796. In addressing these

administrative concerns, the government will also necessarily

have to decide what constitutes a “religion,” “[t}hus [creating] a

governmental! power to hinder certain religious beliefs by denying

their character as such.” Zorach, 343 U.S. at 318 n.4 (Black, J.,

dissenting).

Chabad argues for inclusion of the menorah as a symbol of

“freedom of conscience and good will to all people” (Chabad Br.

at 25), freed from religious connotations by its display in the con-

text of the overall holiday setting . Yet, the religious nature of the

menorah aside, to include the menorah based on the reasoning

that the celebration of Chanukah each year coincides with the

“Christmas holiday season” (see U.S. Br. at 19) is necessarily to

exclude the symbols of other sects that do not celebrate year-end

religious observances.

Hence the County and the City cannot physically or constitu-

tionally “accommodate” all religions, nor are they permitted to

embrace the symbols of some where the free expression of those

sects’ traditions and principles may find other, non-government

assisted, outlets. 's

'® Moreover, the very notion of placing religious symbcls at the seat of local gov-

ernment as an “accommodation” of religion is, as Point II, infra, will show, a

misapplication of notions of “accommodation” which are associated with free

exercise doctrine.

eee ad & he id tee ome

21

NOTIONS OF “ACCOMMODATION OF RELIGION” ARE

NOT PROPERLY IMPLICATED IN THIS CASE

In a long line of cases, this Court has held that “accommoda-

tion” of government is necessary to protect an individual's right to

“freely exercise” his religious beliefs consistent with the First

Amendment. E.g., Sherbert v. Verner, 374 U.S. 398 (1963). As

stated by the Court in Zorach, however, “[i}t takes obtuse reason-

ing to inject any issue of the ‘free exercise’ of religion into the pre-

sent case.” 343 US. at 311.

From a constitutional perspective, of course, the notion of

“accommodation” is properly associated with those cases where

the carrying out of a religious belief would be subject to govern-

mental penalty, or at least to deprivation of a public benefit, if

there were not some adjustment in a generally applicable rule. In

such cases, government must demonstrate that the purposes

served by the challenged regulation are of compelling interest and

can be served by no less restrictive means before it will be allowed

to refuse some such adjustment. E.g., Hobbie v. Unemployment

Appeal Comm'n of Florida and Lawton & Co., 480 U.S. 136 (1987).

Neither inclusion of a creche by the County in its holiday dis-

play nor inclusion of a menorah in the City’s display is necessary

to accommodate individual religious expression." Lynch, 465

US. at 717 (Brennan, J., dissenting). There are ample private fo-

rums away from the seat of government for the public display of

religious symbols in recognition or celebration of the holidays

with which they are associated. At those sites, the imprimatur of

'* The “free exercise” argument advanced by amicus curiae Concerned Women

for America in support of petitioners is thus misplaced and the authority they

cite is distinguishable from the instant case. See Concerned Women for

America’s Brief at 6-9.

In Quick Bear v. Leupp, 210 U.S. 50 (1908), this Court affirmed the constitu-

tionality of federal payments made, pursuant to treaty, to a Native American

tribe planning to use the funds for a Catholic school because to have denied

them this chosen use of their own funds would have been to deny the tribe

their sole opportunity to provide themselves a religious education. Here, gov-

ernment's refusal to display the creche or menorah would not similarly pre-

clude the free exercise of religion.

(footnote continued on next page)

22

government is absent and the coercive effect of the display of such

sectarian symbols at the seat of government is avoided.”

Further, even if we accept the City’s and County’s stated

“secular” purpose, this Court has frequently held that govern-

ment may not “employ religious means to reach a secular goal un-

less secular means are wholly unavailing.” School Dist. of

Abington v. Schempp, 374 U.S. 203, 294 (1963). See also Wallace v.

Jaffree, 472 U.S. at 59; Larkin v. Grendel's Den, Inc., 459 U.S. 116,

122-23; ACLU v. Rabun Co. Chamber of Commerce, Inc., 698 F.2d

1098, 1111 (11th Cir. 1983); Gilfillan v. City of Philadelphia, 637

F.2d 924, 930 (3d Cir. 1980), cert. denied, 451 U.S. 987 (1981).

Here, the City’s and County's stated purpose of marking the

Christmas holiday and promoting good will could be adequately

served without including a menorah or creche in their respective

displays."*

(footnote continued from previous page)

Bradfield v. Roberts, 175 U.S. 291 (1899), is also inapposite. There, as in Til-

ton v.Richardson, 403 U.S. 672 (1971), the question presented was the extent

to which the government might rely upon sectanan institutions in providing

clearly secular services. Here, the issue is the use of government facilities

which advance religion, albeit for ostensibly secular purposes. Notably, the

sectanan symbols which might be expected to adorn the government funded

hospital additions in Bradfield (or the college buildings in Tilton) were far

removed from the seat of government.

'? The availability and importance of alternative private sites for the display of

sectanan symbols 1s illustrated by community practice in Larchmont, New

York. After more than 20 years of being displayed in front of the Village

Hall, the Larchmont village creche was rotated among area churches. Local

Chnstian clergy acknowledged that many Christians as well as non-Chns-

uans felt it was “inappropnate”™ to exhibit a symbol of the incarnation on

public property.

The clergy deciared that the manger “goes to the center of the Chnstian

orthodoxy: that the mystery of the divine reality becomes uniquely incar-

nate in a human life.” For this reason, they said, “the clergy hold that the

creche 1s not a universal but a sectanan, particulanstic symbol, and that its

appropnate place is not on tax-supported property, but in churches or on

their properties and in our homes.”

Rabinove, Religious Symbols and Gov't What's All the Fuss?, Long Island

Jewish World, December 2-8, 1983. Nevertheless, in the wake of Lynch, the

local government voted to reinstate the creche display on the Village Hall

lawn. Cf McCreary v. Stone, 739 F. 2d at 720 (Village of Scarsdale, prior to

Lynch, voted to deny requests to display creche on public property).

’® In contrast, the furtherance of public appreciation of art and literature ne-

cessitates the display of religious objects in museums and the study of relig-

(footmote conhnued on next page)

1 LN A Ci A a AP eg toi

;

:

?

-

7

4

-

4

Zz

3

°

:

4

'

-

:

23

While certain government action, prompted by a secular

purpose, may advance religion, such is the inevitable conse-

quence of the broad reach of both government and religion in our

society. To pass constitutional muster, however, that action must

be scrupulously neutral, promoting religion generally and inci-

dentally, rather than as a “primary effect” of the action in ques-

tion which, of course, would implicate the second prong of the

Lemon test. See Zorach v. Clauson, 343 U.S. 306 (mandatory re-

lease time from school for off-campus religious instruction). See

also Walz v. Tax Comm'n, 397 U.S. 664 (1970) (property tax ex-

emption for religious institutions); Tilton v. Richardson, 403 U.S.

672 (construction grants for college buildings of church-spon-

sored institutions of higher learning combining secular and relig-

ious education).

Where permissible government practice coincides with a

particular religious belief, the advancement, or in less precise par-

lance, “accommodation”, of that belief is indirect and, as a practi-

cal matter, the result of government’s taking into account

common practice to further its secular goal. See McGowan v.

Maryland, 366 U.S. 420 (1961) (upholding Sunday closing laws).

Indeed, government recognition of Christmas Day as a public

holiday does no more than reconcile the functioning of govern-

ment institutions to a de facto common day of family gatherings

and rest. Lynch, 465 U.S. at 710, 714-15, (Brennan, J., dissenting).

Marsh v. Chambers, repeatedly invoked by Chief Justice Burger in

Lynch, is not to the contrary.'* The Court specifically found in

Marsh “no indication that the prayer opportunity ha[d] been ex-

(footnote continued from previous page)

1ously inspired texts in schools. Cf Lynch, 465 U.S. at 676-77. “Music with-

Out sacred music, architecture minus the cathedral, or painting without the

scriptural themes would be eccentric and incomplete, even from a secular

point of view.” McCollum, 333 U.S. at 236 (Jackson, J., concurring). That a

creche or menorah may constitutionally be displayed in a government sup-

ported art gallery, however, does not compel the conclusion that an ostensi-

bly secular purpose may justify their display in another mode, in another

place.

'*Significantly, in his opinion for the Court in Marsh, Chief Justice Burger relied

upon the “unique history” of the appointment of paid legislative chaplains in

upholding the constitutionality of that practice. Marsh, 463 U.S. at 786-92.

24

ploited [by the legislative chaplain] to proselytize or advance any

one, or disparage any other, faith or belief.” 463 U.S. at 794-95.2°

In contrast, by providing a menorah to the City, Chabad, a

fundamentalist Jewish group, seeks to further its “war against the

forces of assimilation, helping Jews around the world rediscover

the eternal truths of Torah Judaism.” J.E. 20. Similarly, the or-

ganizational purpose of the Holy Name Society, “to promote ven-

eration for the name of Jesus,” (J.A. 73), clearly bespeaks its goal

in providing a creche—a holy symbol of the Catholic faith 2'— to

the County for government display. By involving themselves in the

display of the menorah and the creche, respectively, at the very

seat of government, the City and the County have undertaken to

endorse, at least implicitly, those sectarian messages.*? See Stone

v. Graham, 449 U.S. 39, 41 (1980) (“avowed secular purpose is not

[always] sufficient to avoid conflict with the First Amendment’);

Edwards v. Aguillard, 107 S.Ct. at 2579 (1987) (“it is required that

the [State’s] statement of [secular] purpose be siqgere and not a

sham”). Their conduct in erecting those holiday displays does

more than coincidentally harmonize with some religions; it im-

permissibly “aids religious groups to spread their faith.” McCol-

lum, 333 U.S. at 210. “The state should not be allowed to do for

citizens what, in their rightful free exercise of religion, they are

perfectly capable of doing for themselves.” Rabinove, The Consti-

tution and the Creche, Reform Judaism, Winter 1984-85 at 3.

IN LIGHT OF THE DIFFICULTIES INHERENT IN THE

LYNCH ANALYSIS, THAT DECISION SHOULD BE

REEXAMINED AND SET ASIDE

As demonstrated above, an affirmance of the decision of the

Third Circuit Court of Appeals would be consistent with the deci-

2° Notably, Robert E. Palmer, the Nebraska Legislature’s chaplain, did not, after

1980, offer prayers which were explicitly Christian; he charactenzed his prayers

as “nonsectarian.” Marsh, 463 U.S. at 793 n.14.

2’ Before the district court, Father Gregory Swiderski, a Catholic priest, testified

that a nativity scene is “a Catholic sacramental, in that it is a representation of

something holy,” J.A. 72; it does not have any secular significance. J.A. 78, 134.

22The menorah at the City-County Building was lit nightly at which time a prayer

invoking the name of God was recited by a rabbi. J.A. 280-81.

4

-

:

|

;

’

:

*

4

25

sion in Lynch v. Donnelly. However, there are some difficulties

inherent in that decision which bear reflection. One of those diffi-

culties is that its premise—that a clearly sectarian municipal cele-

bration of the Christmas holiday is, when viewed in the context of

the season, permissible because Christmas is a national holiday

(.e., a holiday with “secular aspects”)—gives rise to arguments

like that of the Solicitor General herein that a menorah is permis-

sible because it “is part of the Jewish celebration of Chanukah,

which falls each year within the Christmas holiday season.” U.S.

Br. at 9, 19. The Solicitor General cites the fact that private and

governmental entities are

accommodating and recognizing celebrations of Christmas

and Chanukah together as part of a general holiday season.

An objective observer would thus view Pittsburgh's decision

to erect a menorah next to the Christmas tree on the steps of

the City-County Building not as endorsing Judaism, but

merely as recognizing another dimension of the holiday sea-

son.

Id. As the testimony of Howard Elbling makes clear, many peo-

ple are offended “by the fact that people are trying to equate

Christmas and Chanukah. The holidays have nothing to do with

each other . . .” (J.A. 128).

Moreover, it is difficult to imagine that a rule of law deter-

mining the kinds of municipally displayed religious symbols

which are permissible under the United States Constitution

should turn on the happenstance that the holiday associated with

the symbol falls within the month of December. Indeed, such a

test would necessitate a decision that no other religion’s symbols

could permissibly be displayed, since, as far as we know, no other

religious holidays fall in that month.2

Indeed, the premise of Lynch, that the status of Christmas as

a national holiday sanctions governmental displays of its overtly

religious symbols, is itself fraught with difficulties. In Lynch, this

7°Cf, Chabad Br. at 29 (arguing that no excessive entanglement with religion is

required by a decision permitting the display of a menorah as long as the sym-

bols of other non-Christian faiths are also permitted).

26

Court stated that the City of Pawtucket, in displaying the creche,

had simply:

taken note of a significant historical religious event long cele-

brated in the Western World. The creche in the display de-

picts the historical origins of this traditional event long

recognized as a National Holiday.

465 U.S. at 680.

Elsewhere, this Court referred to the creche as a symbol of a

particular historic religious event, [ ] part of a celebration ac-

knowledged in the Western World for 20 centuries, and in

this country by the people, by the Executive Branch, by the

Congress, and the courts for 2 centuries. . . .24

Id. at 686.

To millions of American non-Christians, however, a creche

does not represent a “historical religious event,” the celebration

of which is a part of all of our religious or national heritage. On

the contrary, it represents an event which Christians believe to be

historical, but which non-adherents to that faith simply do not ac-

cept—i.e., the birth of Jesus as the Son of God. Deeming a rep-

resentation of such event as historical is akin to making such a

claim about a depiction of the parting of the Red Sea. Jews, as

well as Christians, may believe that such an event took place, but

others almost certainly do not.

Moreover, as Justice Brennan pointed out in his dissent in

Lynch (joined by Justices Marshall, Blackmun and Stevens):

When government decides to recognize Christmas Day as a

dublic holiday, it does no more than accommodate the calen-

dar of public activities to the plain fact that many Americans

will expect on that day to spend time visiting with their fami-

lies, attending religious services, and perhaps enjoying some

respite from preholiday activities.

465 US. at 710.

2 See also 465 U.S. at 686. (referring to a “host of other forms of taking official

note of Christmas, and of our religious heritage”).

28 We agree with the sentiment expressed by Justice Brennan that “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 stanc’’ as a dramatic re-

minder of their differences with Christian faith.” Lync’., 465 U.S. at 708

(Brennan, J., dissenting).

27

Not all Americans celebrate Christmas, however. Yet, each

December, millions of Americans are made unwilling partici-

pants in that event. In public schools around the country, for ex-

ample, non-Christian children find they often must take part in

plays, songs and games that celebrate religious beliefs alien to

their own faith, or separate themselves from their classmates and

their teachers by refusing to share in the festivities. “To be so ex-

cluded on religious grounds by one’s elected government is an in-

sult and an injury that [should] not be countenanced by the

Establishment Clause.” 465 U.S. at 709 (Brennan, J., dissenting).

This dilemma causes the Court today to find itself in the unusual

position of having to consider arguments by varying factions of

religious groups concerning the religious significance of the sym-

bol of one of their holidays.2¢

The solution to this problem, and to the criticism of the view

taken by the four circuit courts of appeal to have considered these

issues since Lynch, and advanced by the respondents and amici

herein—that this Court must consider each case individually and,

with respect to the instant one, distinguish it from Lynch—is, we

respectfully submit, that the Court reexamine the Lynch decision

in light of these difficulties and set it aside. For , as stated by Jus-

tice Jackson concurring in McCollum v. Board of Education, 333

U.S. at 238, “[i]f with no surer legal guidance [than its own presup-

positions the Court is] to take up and decide every variation of

this controversy .. . [the Court] is likely to have much business of

the sort.”

If, however, amici (and the substantial majority of the courts

of appeal that have been called upon to interpret Lynch) have mis-

interpreted this Court’s message therein, and if, rather than a

case-specific analysis, a far broader permission for state utiliza-

* Many Christians, for example, strongly object to denuding Christmas —one of

the holiest days of the Christian calendar —of its religious significance. Christ-

mas, after all, celebrates the birth of Jesus, whom Christians regard as the Son

of God, and the holiday is to be regarded as far more than simply the basis for

the busiest retail season of the year.

Similarly, many Jews would strongly object to the secularization of the

menorah, a religious symbol, which is Chabad’s position in this case. That posi-

tion, however, was entirely compelled by this Court's decision in Lynch, i.e.,

Chabad apparently felt no alternative, given that decision, other than to at-

tempt to “secularize” its own holiday and that holiday's religious symbol.

28

tion of religious symbols and themes was intended, amici respect-

fully submit that Lynch is fraught with danger.

As discussed above, Lynch may, to our mind, be confined,

first, to the Christmas season, and, second, to the specific context

in which any religious symbols used are found within a holiday

display. See, supra, at 8-14. Read broadly, though, Lynch could

be said to justify the government’s display and use of any religious

symbol (perhaps even a crucifix, at least if adorned by secular

trappings) so long as that use falls within the context of a particu-

lar holiday season, Easter for example, where the crucifix could be

accompanied by Easter bunnies, egg hunts, parades and the

like.2? Such a view of Lynch, we submit, would clearly be at vari-

ance with this Court’s Establishment Clause jurisprudence —but

also illustrates the difficulties presented by Lynch.

Prior to Lynch, this Court had, time and time again, recog-

nized that religion plays an important role in American history, as

well as in current society, and acknowledge that the principle of

separation of church and state cannot mean that there is no rela-

tion between the institutions of each. See Bowen v. Kendrick, __

U.S.___, 108 S.Ct. 2562 (1988) (allowing religious organizations to

participate in state-funded counselling programs); Zorach v.

Clauson, 343 U.S. 306 (allowing public school students to be re-

leased from school for religious instruction). However, until

Lynch, the mixture of public and religious functioning was, in es-

sence, non-denominational. Nor, in Zorach, did this Court say

that students of only one particular religion could be released

from school for special instruction; rather, the decision was “re-

27In ACLU v. City of St. Charies, the Seventh Circuit Court of Appeals, in post-

Lynch decision, while enjoining the display of a Latin cross on a government

building during the Christmas season, did so because the cross was not a tradi-

tional part of Christmas symbology. 794 F.2d at 271-72. The cross and, more

specifically, the crucifix are, however, intimately associated with Easter obser-

vances.

29

ligion-neutral.”28 See generally Abington v. Schempp, 374 U.S. at

303-04 (Brennan, J., concurring) (references to some “generic”

God may be acceptable because, over time, they have lost their

religious significance). In Lynch, however, this Court sanctioned

government use of a distinctly sectarian symbol, the creche. This

use of a sacred symbol, with, at the very least, government

authorization, if not whole-hearted endorsement, strikes a blow at

the heart of First Amendment protections. That some may be-

lieve that a member of one religion (particularly a minority one),

or, for that matter, an atheist,2° may feel only slightly diminished

by government sanction of the use of another religion’s symbols

(particularly that of a majority one) is no justification for that re-

sult. This Court has never deviated from the principle that:

it is no defense to urge that the religious practices here may

be relatively minor encroachments on the First Amendment.

The breach of neutrality that is today a trickling stream may

all to soon become a raging torrent and, in the words of

Madison, ‘it is proper to take alarm at the first experiment on

2*Similarly, that particular religious events and themes surface in public schoo!

history and literature classes is by no means inappropriate, so long as they are

discussed in a secular context. See Edwards v. Aguillard, 482 U.S. at ___, 107S. Ct.

at 2590 (Powell, J., concurring) (“In fact, since religion permeates our history, a

familanty with the nature of religious beliefs is necessary to understand many

historical as well as contemporary events. ... The Establishment Clause is prop-

erly understood to prohibit the use of the Bible and other religious documents

in public school education only when the purpose of the use is to advance a par-

ucular religious belief.”)

7° Although at times forgotten, this Court recently reaffirmed the principle that

government should not only not prefer one religious sect over another, but that

it should not foster belief in religion over non-belief:

Just as the right to speak and the nght to refrain from speaking are comple-

mentary components of a broader concept of individual freedom of mind, so

also the individual's freedom to choose his own creed is the counterpart of

his night to refrain from accepting the creed established by the majority. At

one time it was thought that this mght merely proscribed the preference of

one Christian sect over another, but would not require equal respect for the

conscience of the infidel, the atheist, or the adherent of a non-Christian faith

such as Islam or Judaism. But when the underlying principle has been exam-

ined in the cubicle of litigation, the Court has unambiguously concluded that

the individual freedom of conscience protected by the First Amendment

embraces the nght to select any religious faith or none at all.

Wallace v. Jaffree, 472 U.S. at 52-53 (footnotes omitted).

30

our liberties.’ Memorial and Remonstrance Against Relig-

ious Assessments, quoted in Everson, supra, 330 U.S., at

65,67 S.Ct., at 536, 91 L. Ed. 711.

Abington v. Schempp, 374 U.S. at 225. Cf. Wallace v. Jaffree, 472

U.S. at 60-61 (“The importance of that principle [no official pref-

erence for any religious denomination] does not permit us to treat

this as an inconsequential case involving nothing more than a few

words of symbolic speech on behalf of the political majority. For

whenever the State itself speaks on a religious subject, one of the

questions that we must ask is whether the government intends to

convey a message of endorsement or disapproval of religion”).

Nor is it significant that the symbols used or contemplated

herein—the Christmas creche and, quite possibly, the Easter cru-

cifix—are “passive.” (See argument of City, City Br. at 21). This

Court has never indicated that, to find an Establishment Clause

violation, some showing of direct governmental compulsion, or

the requiring of some affirmative act, is necessary. In fact, in Wai-

lace v. Jaffree, supra, a post-Lynch decision, this Court acknowl-

edged with approval its prior sentiment that “ ‘{w}hen the power,

prestige and financial support of government is placed behind a

particular religious belief, the indirect coercive pressure upon re-

ligious minorities to conform to the prevailing officially approved

religion is plain.’ 472 U.S. at 60 n.51, citing with approval, Engel

v. Vitale, 370 U.S. 421, 431 (1962). Particularly where, as here, the

two religions sought to be represented by the state—Christianity

and Judaism—are the more “established” ones in the Pittsburgh

community, this Court should be vigilant in protecting the sensi-

bilities and sensitivities of non-believers in the Judeo-Christian

tradition or, for that matter, of any religious creed.*°

»® As previously recognized by the Court, “[t}here are persons in every commu-

nity—often deeply devout—to whom any version of the Judaeo-Chnstian Bi-

bie is offensive.” Abington v. Schempp, 374 U.S. at 283 (Brennan, J., concur-

ning)

31

CONCLUSION

For all the foregoing reasons, the judgment of the court of

appeals should be affirmed.

Respectfully submitted,

SAMUEL RABINOVE

RICHARD T. FOLTIN

Counsel of Record

The American Jewish Committee

165 East 56th Street

New York, New York 10022

(212) 751-4000

- and -

JAMES G. GREILSHEIMER

ALAN M. KLINGER

DAVID A. STEIN

LAUREN G. KLEIN

STROOCK & STROOCK & LAVAN

7 Hanover Square

New York, New York 10004

(212) 806-5400

Attorneys for Amici Curiae

Of Counsel:

LEE BOOTHBY

BOOTHBY, ZIPRICK & YINGST

208 W. Mars Street

Berrien Springs, Michigan 49103

December 1988