Display of Religious Symbols on Public Property
By Richard R. Hammar, J.D., LL.M., CPA
© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m88
Several courts have ruled on the constitutionality of displaying religious symbols on public property. Many courts have concluded that the maintenance of crosses on public property constitutes an impermissible establishment of religion.1 One court has observed:
The employment of publicly owned and publicly maintained property for a highly visible display of the character of the cross in this case necessarily creates an inference of official endorsement of the general religious beliefs which underlie that symbol. Accordingly, persons who do not share those beliefs may feel that their own beliefs are stigmatized or officially deemed less worthy than those awarded the appearance of the city's endorsement . . . . The government has no business placing its power, prestige, or property at the disposal of private persons or groups either to aid or oppose any religion.2
Other courts have approved of the maintenance of crosses on public property.3 In one case, a court emphasized that a cross was maintained “to decorate streets and attract holiday shoppers to downtown, rather than establish or create a religious symbol or to promote or establish a religion.”4
One court ruled that it is constitutionally permissible for public schools to temporarily display children's artwork in school rooms and halls, even though some of the artwork is religious.5 The court reasoned:
Are school children to be forbidden from expressing their natural artistic talents through media including religious themes? Or, are the results of their efforts to be excluded from display and recognition merely because they choose to adopt a religious, rather than a secular subject? The answer should be obvious. To impose such a restriction would more nearly approach a restraint upon the exercise of religion than does the present practice of the school board in permitting such displays.6
The Supreme Court of New Hampshire upheld a state law requiring that all public school classrooms contain a sign stating “In God We Trust.”7 The court observed that such words “appear on all coins and currency, on public buildings, and in our national anthem, and the appearance of these words as a motto on plaques in the public school need not offend the establishment clause . . . .”8
In 1984, the Supreme Court held that a city's practice of including a nativity creche in an annual Christmas display on public property did not violate the establishment clause.9 Besides the creche, the city's display contained several “secular” objects, including a Santa Claus house, a talking Christmas tree, reindeer, candy--striped poles, and lights. The Court, applying the three--part Lemon test10 “in the context of the Christmas season,” concluded that inclusion of the creche in the city's display had the secular purpose of depicting the origin of the Christmas holiday, did not have a primary effect of advancing religion, and did not excessively entangle church and state. Acknowledging that the creche “in a sense” advanced religion, the Court concluded that its previous decisions make it “abundantly clear” that not every law or governmental practice that confers an indirect or incidental benefit upon religion is for that reason alone impermissible. Drawing support from the history and context of the display, the Court noted that
[i]t would be ironic . . . if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged 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 two centuries, would so “taint” the City's exhibit as to render it violative of the establishment clause.11
In a similar case, the Court upheld the practice of permitting a nativity scene in a city park during the Christmas season at virtually no expense to the city.12 Unlike the situation in the Lynch case, the nativity scene was not in the context of a larger display containing numerous “secular” objects. Since the ruling was by an equally divided Court (4--4), it is controlling only in the second federal circuit (New York, Vermont, and Connecticut).
In 1989, the Court again addressed the permissibility of nativity scenes on public property.13 For a number of years, a county government permitted a Roman Catholic group to display a nativity creche on the main staircase of the county courthouse during the Christmas season. The creche included figures of the infant Jesus, Mary, Joseph, farm animals, shepherds, wise men, and an angel bearing a banner proclaiming “Gloria in Excelsis Deo” (glory to God in the highest). The creche bore a plaque stating, “This display donated by the Holy Name Society.” The creche was surrounded by poinsettia plants, but otherwise no other seasonal figures or ornaments were located nearby. A municipal building located a few blocks away presented an annual holiday display each December on a public sidewalk outside the main entrance to the building. The display included a large (45--foot) Christmas tree decorated with lights and ornaments, an 18--foot Chanukah menorah (a candleholder with eight branches) owned by a Jewish group, and a sign reading “during this holiday season the City of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.” The American Civil Liberties Union (ACLU) filed a lawsuit claiming that these displays violated the constitutional ban on any “establishment of religion.” A trial court permitted the displays, but a federal appeals court prohibited them.
The Supreme Court agreed to hear the case, and ruled that the nativity creche had to be removed but that the Chanukah menorah was permissible. The Court observed that among other things, the constitutional prohibition of any establishment of religion prevented any governmental “endorsement” of religion. The constitution, noted the Court, “precludes government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.” Whether or not a particular display violates the constitution depends upon its context. The Court affirmed its earlier decision in Lynch upholding the validity of a Christmas creche that was part of a larger seasonal display that included a Santa Claus, reindeer, a talking wishing well, trees, and lights. Here, however, “the creche stands alone—it is the single element of the display.” This, combined with the fact that the creche was located inside the main entrance of the “seat of county government,” sent an “unmistakable message that [the county] supports and promotes the Christian praise to God that is the creche's religious message.” The Court concluded: “The government may acknowledge Christmas as a cultural phenomenon, but under the first amendment it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus. . . . [G]overnment may celebrate Christmas in some manner and form, but not in a way that endorses Christian doctrine.”
On the other hand, the Court upheld the validity of the Chanukah menorah, since (1) the menorah, being a mere candleholder, was not an “exclusively religious” symbol but rather “has both religious and secular dimensions”; and (2) the menorah stood next to a Christmas tree and a sign saluting liberty and accordingly was part of a “larger display” that detracted from the menorah's religious message. Justice Kennedy, in dissent, criticized the Court's majority for harboring a “latent hostility” and “callous indifference” toward religion. The Court's majority found such a view “as offensive as it is absurd,” adding that “there may be some would--be theocrats who wish that their religion were an established creed . . . but this claim gets no relief, for it contradicts the fundamental premise of the establishment clause itself.”
These decisions indicate that nativity displays will be permissible so long as they are incorporated into a larger “seasonal” display containing secular objects. Nativity displays standing alone on public property violate the Court's present interpretation of the establishment clause. A number of lower courts have attempted to apply this distinction. To illustrate, a federal appeals court ruled (by a 2--1 vote) that the annual display of a nativity scene in Chicago's city hall violated the first amendment's nonestablishment of religion clause.14 For 30 years the city of Chicago had displayed the scene, which consisted of 12--inch figures, in the lobby of city hall. The display had been donated to the city, and no public funds were expended in maintaining or installing it. The display contained 6 disclaimer notices which recited that the display had been donated and that it was in no way sponsored or endorsed by the city government. The American Jewish Congress challenged the display on the ground that it constituted the establishment of religion. In agreeing that the display violated the nonestablishment of religion clause, the court distinguished the Supreme Court's Lynch decision. Unlike the Chicago display, the display in Lynch was “only one element in a larger display that consisted in large part of secularized symbols and decorations” (e.g., a Santa Claus, reindeer, Christmas trees, lights). The Chicago display was not a part of a larger, secularized display. Further, the display in Lynch, while sponsored by the city government, was situated in a park owned by a private nonprofit organization. The Chicago display was situated in “the official headquarters building of the municipal government.” Under these circumstances, the Chicago nativity scene impermissibly “advanced religion by sending a message to the people of Chicago that the city approved of Christianity.”
A federal district court in Illinois ruled that a nativity scene on city hall property violated the first amendment's nonestablishment of religion clause despite the fact that the display was part of a larger display that contained several traditional (and secular) symbols of Christmas and was accompanied by a written notice in which the city disclaimed any endorsement of Christianity or any other religion.15 The court attempted to distinguish Lynch on the ground that the Supreme Court had been addressing the permissibility of a nativity scene located in a private park rather than at the official headquarters of a city government.
A federal appeals court approved the maintenance of a granite monolith bearing the Ten Commandments on public property.16 The court reasoned that in applying the three--part establishment clause test
we must strike a balance between that which is primarily religious and that which is primarily secular albeit embodying some religious impact. A tempered approach obviates the absurdity of striking down insubstantial and widely accepted references to the Deity in circumstances such as courtroom ceremonies, oaths of public office, and on national currency and coin . . . . Overzealous rigidity may diminish or ultimately destroy the bulwark we have erected against governmental interferences in matters of religion.17
The court concluded:
It does not seem reasonable to require removal of a passive monument involving no compulsion, because its accepted precepts, as a foundation for law, reflect the religious nature of an ancient era . . . . The wholesome neutrality guaranteed by the establishment and free exercise clauses does not dictate obliteration of all our religious traditions . . . . We cannot say that the monument, as it stands, is more than a depiction of a historically important monolith with both secular and sectarian effects.18
One court ruled that the Smithsonian Institution's physical illustration of the theory of evolution did not constitute the establishment of a “religion of secular humanism.”19 On the contrary, the court concluded that a ban on all references to evolutionary theory in a public museum would itself constitute a violation of the establishment clause.
Use of a county seal depicting a cross, some sheep, and the motto “Con Esta Vencemos” (with this we conquer) was upheld against the claim that it constituted an impermissible establishment of religion.20 The court concluded that the purpose of the seal was to authenticate documents and to commemorate the Christian, Spanish, and sheepherding heritage of the county; that the seal had only a benign reference to religion and thus did not have a primary effect of advancing religion; and that use of the seal resulted in no entanglements between church and state.
In another case, however, a federal district court concluded that a city's corporate seal containing a cross and other religious symbols was unconstitutional.21 The City of Zion, Illinois, was organized in 1902 by Reverend John Alexander Dowie “for the purpose of the extension of the Kingdom of God on earth where God shall rule in every department of family, industry, commercial, educational, ecclesiastical and political life.” Dowie presented a proposed seal to the city council the same year (all of the members of whom were of Dowie's Theocratic Party), and it was unanimously approved. The seal, which contains symbols of a dove, sword, cross, and crown, was explained by Dowie at the time as follows: “Look at that dove, which is the emblem of the Holy Spirit bearing the message of peace and love over the seas. The cross represents everything to us in redemption, salvation, healing, cleansing and keeping power. The sword is the sword of the Spirit, which is the Word of God. The crown is the crown of glory, the crown of joy, the crown of righteousness, the crown of rejoicing.” The City of Zion uses its seal on its flag, letterhead, city council chambers, city vehicle stickers, police uniforms, and a city water tower. The seal was challenged on the ground that it violated the first amendment's “nonestablishment of religion” clause. A federal district court agreed that the seal was unconstitutional, and prohibited its further use.
The court began its opinion by noting that a city practice which allegedly violates the nonestablishment of religion clause will be upheld only if it has a secular purpose, a primary effect that neither advances nor inhibits religion, and does not create any excessive entanglement between church and state.22 The court concluded that the Zion city seal had a primary effect of advancing religion, and accordingly was unconstitutional. The court rejected the city's claim that the seal merely commemorated the “rich and unique historical heritage of Zion as an experiment in establishing a twentieth century utopian community” and as such had an historical and therefore secular purpose. The court found this theory “not without merit,” since “the city was in fact a religious experiment and the seal [recognizes] that origin.” However, the court concluded that the religious intent and purpose of the seal was so sectarian that the seal had to be viewed as advancing religion rather than history. It observed: “As Reverend Dowie indicated, each of the symbols [on the seal] has an independent religious significance. The sum of the individual symbols imparts a decidedly religious, in fact sectarian, message.” The religious message is enhanced by the words “God Reigns.”
Further, the court noted that it could not “impute complete knowledge of the history to the average observer of the seal. We therefore cannot assume the average member of Zion's political community will have either general or specific knowledge of Zion's unique history.” The court concluded that “it is possible that the majority of Zion's 15,000 inhabitants know little of its unique history.” Therefore, the original purpose of the seal—which was the advancement of religion—was not neutralized by its historical significance.
The same court, in a parallel decision, concluded that the corporate seal of another Illinois town (Rolling Meadows) was constitutional despite the presence of a cross. The court emphasized that the seal had been designed in 1960 by an eighth--grade student as part of a school art assignment, and that neither she nor the city council in adopting the seal had any intent of advancing religion. Further, the cross was one of many designs on the seal, all the rest of which were secular. The court found the cross to be one aspect of community life, that was permissible on a city seal in the context of several other secular representations of municipal life. The remaining pictures “neutralized” the impact of the cross. This fact, in addition to the secular intent of the creator of the seal, persuaded the court that it was permissible.
The use of the national motto “In God We Trust” on all United States coins and currency has been upheld on the ground that such use “has nothing whatsoever to do with the establishment of religion” since its use “is of a patriotic or ceremonial character and bears no true resemblance to a governmental sponsorship of a religious exercise.”23
For related information on this topic see the following articles:Use of Public Property for Religious Purposes