County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter/Concurrence Stevens

by John Paul Stevens

Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, concurring in part and dissenting in part.

Governmental recognition of not one but two religions distinguishes these cases from our prior Establishment Clause cases. It is, therefore, appropriate to reexamine the text and context of the Clause to determine its impact on this novel situation.

Relations between church and state at the end of the 1780s fell into two quite different categories. In several European countries, one national religion, such as the Church of England in Great Britain, was established. The established church typically was supported by tax revenues, by laws conferring privileges only upon members, and sometimes by violent persecution of nonadherents. In contrast, although several American Colonies had assessed taxes to support one chosen faith, none of the newly United States subsidized a single religion. Some States had repealed establishment laws altogether, while others had replaced single establishments with laws providing for nondiscriminatory support of more than one religion. ^[1]

It is against this historical backdrop that James Madison, then a Representative from Virginia, rose to the floor of the First Congress on June 8, 1789, and proposed a number of amendments to the Constitution, including the following:

"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." 1 Annals of Cong. 434 (1789) (emphasis added).

Congressional debate produced several reformulations of the italicized language. ^[2] One Member suggested the words "Congress shall make no laws touching religion," id., at 731 (emphasis added), soon amended to "Congress shall make no law establishing religion," id., at 766 (emphasis added). After further alteration, this passage became one of the Religion Clauses of the First Amendment. Ratified in 1791, they state that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," U.S.C.onst., Amdt. 1 (emphasis added).

By its terms the initial draft of the Establishment Clause would have prohibited only the national established church that prevailed in England; multiple establishments, such as existed in six States, would have been permitted. But even in those States and even among members of the established churches, there was widespread opposition to multiple establishments because of the social divisions they caused. ^[3] Perhaps in response to this opposition, subsequent drafts broadened the scope of the Establishment Clause from "any national religion" to "religion," a word understood primarily to mean "[v]irtue, as founded upon reverence of God, and expectation of future rewards and punishments," and only secondarily "[a] system of divine faith and worship, as opposite to others." S. Johnson, A Dictionary of the English Language (7th ed. 1785); accord, T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796). Cf. Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829, 834, 109 S.Ct. 1514, 1518, 103 L.Ed.2d 914 (1989) (construing "religion" protected by Free Exercise Clause to include "sincerely held religious belief" apart from "membership in an organized religious denomination"). Plainly, the Clause as ratified proscribes federal legislation establishing a number of religions as well as a single national church. ^[4]

Similarly expanded was the relationship between government and religion that was to be disallowed. Whereas earlier drafts had barred only laws "establishing" or "touching" religion, the final text interdicts all laws "respecting an establishment of religion." This phrase forbids even a partial establishment, Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971); Engel v. Vitale, 370 U.S. 421, 436, 82 S.Ct. 1261, 1269, 8 L.Ed.2d 601 (1962), not only of a particular sect in favor of others, but also of religion in preference to nonreligion, Wallace v. Jaffree, 472 U.S. 38, 52, 105 S.Ct. 2479, 2487, 86 L.Ed.2d 29 (1985). It is also significant that the final draft contains the word "respecting." Like "touching," "respecting" means concerning, or with reference to. But it also means with respect-that is, "reverence," "good will," "regard" to. ^[5] Taking into account this richer meaning, the Establishment Clause, in banning laws that concern religion, especially prohibits those that pay homage to religion.

Treatment of a symbol of a particular tradition demonstrates one's attitude toward that tradition. Cf. Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Thus the prominent display of religious symbols on government property falls within the compass of the First Amendment, even though interference with personal choices about supporting a church, by means of governmental tithing, was the primary concern in 1791. See Walz v. Tax Comm'n of New York City, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970); n. 3, supra. Whether the vice in such a display is characterized as "coercion," see post, at 660-661 (KENNEDY, J., concurring in judgment in part and dissenting in part), or "endorsement," see ante, at 625 (O'CONNOR, J., concurring in part and concurring in judgment), or merely as state action with the purpose and effect of providing support for specific faiths, cf. Lemon, 403 U.S., at 612, 91 S.Ct., at 2111, it is common ground that this symbolic governmental speech "respecting an establishment of religion" may violate the Constitution. ^[6] Cf. Jaffree, 472 U.S., at 60-61, 105 S.Ct., at 2491-2492; Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984).

In my opinion the Establishment Clause should be construed to create a strong presumption against the display of religious symbols on public property. ^[7] There is always a risk that such symbols will offend nonmembers of the faith being advertised as well as adherents who consider the particular advertisement disrespectful. Some devout Christians believe that the creche should be placed only in reverential settings, such as a church or perhaps a private home; they do not count nance its use as an aid to commercialization of Christ's birthday. Cf. Lynch, 465 U.S., at 726-727, 104 S.Ct., at 1387 (BLACKMUN, J., dissenting). ^[8] In this very suit, members of the Jewish faith firmly opposed the use to which the menorah was put by the particular sect that sponsored the display at Pittsburgh's City-County Building. ^[9] Even though "[p]assersby who disagree with the message conveyed by these displays are free to ignore them, or even to turn their backs," see post, at 664 (KENNEDY, J., concurring in judgment in part and dissenting in part), displays of this kind inevitably have a greater tendency to emphasize sincere and deeply felt differences among individuals than to achieve an ecumenical goal. The Establishment Clause does not allow public bodies to foment such disagreement. ^[10]

Application of a strong presumption against the public use of religious symbols scarcely will "require a relentless extirpation of all contact between government and religion," see post, at 657 (KENNEDY, J., concurring in judgment in part and dissenting in part), ^[11] for it will prohibit a display only when its message, evaluated in the context in which it is presented, is nonsecular. ^[12] For example, a carving of Moses holding the Ten Commandments, if that is the only adornment on a courtroom wall, conveys an equivocal message, perhaps of respect for Judaism, for religion in general, or for law. The addition of carvings depicting Confucius and Mohammed may honor religion, or particular religions, to an extent that the First Amendment does not tolerate any more than it does "the permanent erection of a large Latin cross on the roof of city hall." See post, at 661 (KENNEDY, J., concurring in judgment in part and dissenting in part). Cf. Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam ). Placement of secular figures such as Caesar Augustus, William Blackstone, Napoleon Bonaparte, and John Marshall alongside these three religious leaders, however, signals respect not for great proselytizers but for great lawgivers. It would be absurd to exclude such a fitting message from a courtroom, ^[13] as it would to exclude religious paintings by Italian Renaissance masters from a public museum. Cf. Lynch, 465 U.S., at 712-713, 717, 104 S.Ct., at 1379-1380, 1382 (BRENNAN, J., dissenting). Far from "border[ing] on latent hostility toward religion," see post, at 657 (KENNEDY, J., concurring in judgment in part and dissenting in part), this careful consideration of context gives due regard to religious and nonreligious members of our society. ^[14]

Thus I find wholly unpersuasive Justice KENNEDY'S attempts, post, at 664-667, to belittle the importance of the obvious differences between the display of the creche in this case and that in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). Even if I had not dissented from the Court's conclusion that the creche in Lynch was constitutional, I would conclude that Allegheny County's unambiguous exposition of a sacred symbol inside its courthouse promoted Christianity to a degree that violated the Establishment Clause. Accordingly, I concur in the Court's judgment regarding the creche for substantially the same reasons discussed in Justice BRENNAN's opinion, which I join, as well as Part IV of Justice BLACKMUN's opinion and Part I of Justice O'CONNOR's opinion.

I cannot agree with the Court's conclusion that the display at Pittsburgh's City-County Building was constitutional. Standing alone in front of a governmental headquarters, a lighted, 45-foot evergreen tree might convey holiday greetings linked too tenuously to Christianity to have constitutional moment. Juxtaposition of this tree with an 18-foot menorah does not make the latter secular, as Justice BLACKMUN contends, ante, at 616. Rather, the presence of the Chanukah menorah, unquestionably a religious symbol, ^[15] gives religious significance to the Christmas tree. The overall display thus manifests governmental approval of the Jewish and Christian religions. Cf. Jaffree, 472 U.S., at 60-61, 105 S.Ct., at 2491-2492 (quoting Lynch, 465 U.S., at 690-691, 104 S.Ct., at 1368 (O'CONNOR, J., concurring)). Although it conceivably might be interpreted as sending "a message of pluralism and freedom to choose one's own beliefs," ante, at 634 (O'CONNOR, J., concurring in part and concurring in judgment); accord, ante, at 617-618 (opinion of BLACKMUN, J.), the message is not sufficiently clear to overcome the strong presumption that the display, respecting two religions to the exclusion of all others, is the very kind of double establishment that the First Amendment was designed to outlaw. I would, therefore, affirm the judgment of the Court of Appeals in its entirety.

Notes

1. The history of religious establishments is discussed in, e.g., J. Swomley, Religious Liberty and the Secular State 24-41 (1987) (Swomley). See generally L. Levy, The Establishment Clause (1986) (Levy). One historian describes the situation at the time of the passage of the First Amendment as follows:
2. For a comprehensive narration of this process, see Levy 75-89. See also, e.g., Wallace v. Jaffree, 472 U.S. 38, 92-97, 105 S.Ct. 2479, 2509-2510, 86 L.Ed.2d 29 (1985) (REHNQUIST, J., dissenting); Swomley 43-49; Drakeman, Religion and the Republic: James Madison and the First Amendment, in James Madison on Religious Liberty 233-235 (R. Alley ed.1985).
3. "Other members of the established church also disapproved taxation for religious purposes. One of these, James Sullivan, who was later elected Governor of Massachusetts, wrote about such taxation: 'This glaring piece of religious tyranny was founded upon one or the other of these suppositions: that the church members were more religious, had more understanding, or had a higher privilege than, or a preeminence over those who were not in full communion, or in other words, that their growth in grace or religious requirements, gave them the right of taking and disposing of the property of other people against their consent.'
4. This proscription applies to the States by virtue of the Fourteenth Amendment. Jaffree, 472 U.S., at 48-55, 105 S.Ct., at 2485-2489.
5. "Respect," as defined in T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796). See S. Johnson, A Dictionary of the English Language (7th ed. 1785); see also The Oxford English Dictionary 733-734 (1989); Webster's Ninth New Collegiate Dictionary 1004 (1988).
6. The criticism that Justice KENNEDY levels at Justice O'CONNOR's endorsement standard for evaluating symbolic speech, see post, at 668-678, is not only "uncharitable," post, at 675, but also largely unfounded. Inter alia, he neglects to mention that 1 of the 2 articles he cites as disfavoring the endorsement test, post, at 669, itself cites no fewer than 16 articles and 1 book lauding the test. See Smith, Symbo s, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the "No Endorsement" Test, 86 Mich.L.Rev. 266, 274, n. 45 (1987). Justice KENNEDY's preferred "coercion" test, moreover, is, as he himself admits, post, at 660, out of step with our precedent. The Court has stated:
7. In a similar vein, we have interpreted the Amendment's strictly worded Free Speech and Free Press Clauses to raise a strong presumption against, rather than to ban outright, state abridgment of communications. See, e.g., Roaden v. Kentucky, 413 U.S. 496, 504, 93 S.Ct. 2796, 2801, 37 L.Ed.2d 757 (1973). By suggesting such a presumption plays a role in considering governmental symbolic speech about religion, I do not retreat from my position that a " 'high and impregnable' wall" should separate government funds from parochial schools' treasuries. See Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 671, 100 S.Ct. 840, 855, 63 L.Ed.2d 94 (1980) (STEVENS, J., dissenting) (quoting Everson v. Board of Education of Ewing, 330 U.S. 1, 18, 67 S.Ct. 504, 512, 91 L.Ed. 711 (1947)).
8. The point is reiterated here by amicus the Governing Board of the National Council of Churches of Christ in the U.S.A., which argues that "government acceptance of a creche on public property . . . secularizes and degrades a sacred symbol of Christianity," Brief for American Jewish Committee et al. as Amici Curiae ii. See also Engel, 370 U.S., at 431, 82 S.Ct., at 1267. Indeed two Roman Catholics testified before the District Court in this case that the creche display offended them. App. 79-80, 93-96.
9. See Brief for American Jewish Committee et al. as Amici Curiae i-ii; Brief for American Jewish Congress et al. as Amici Curiae 1-2; Tr. of Oral Arg. 44.
10. These cases illustrate the danger that governmental displays of religious symbols may give rise to unintended divisiveness, for the net result of the Court's disposition is to disallow the display of the creche but to allow the display of the menorah. Laypersons unfamiliar with the intricacies of Establishment Clause jurisprudence may reach the whol y unjustified conclusion that the Court itself is preferring one faith over another. See Goldman v. Weinberger, 475 U.S. 503, 512-513, 106 S.Ct. 1310, 1315-1316, 89 L.Ed.2d 478 (1986) (STEVENS, J., concurring). Cf. Lemon v. Kurtzman, 403 U.S. 602, 623, 91 S.Ct. 2105, 2116, 29 L.Ed.2d 745 (1971) ("[T]he Constitution's authors sought to protect religious worship from the pervasive power of government"); Engel, 370 U.S., at 430, 82 S.Ct., at 1266 ("Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause").
11. The suggestion that the only alternative to governmental support of religion is governmental hostility to it represents a giant step backward in our Religion Clause jurisprudence. Indeed in its first contemporary examination of the Establishment Clause, the Court, while differing on how to apply the principle, unanimously agreed that government could not require believers or nonbelievers to support religions. Everson v. Board of Education of Ewing, 330 U.S., at 15-16, 67 S.Ct., at 511-512; see also id., at 31-33, 67 S.Ct., at 519-520 (Rutledge, J., dissenting). Accord, Jaffree, 472 U.S., at 52-55, 105 S.Ct., at 2487-2489.
12. Cf. New York v. Ferber, 458 U.S. 747, 778, 102 S.Ct. 3348, 3365, 73 L.Ed.2d 1113 (1982) (STEVENS, J., concurring in judgment) ("The question whether a specific act of communication is protected by the First Amendment always requires some consideration of both its content and its context").
13. All these leaders, of course, appear in friezes on the walls of our courtroom. See The Supreme Court of the United States 31 (published with the cooperation of the Historical Society of the Supreme Court of the United States).
14. The Court long ago rejected a contention similar to that Justice KENNEDY advances today:
15. After the judge and counsel for both sides agreed at a preliminary injunction hearing that the menorah was a religious symbol, App. 144-145, a rabbi testified as an expert witness that the menorah and the creche "are comparable symbols, that they both represent what we perceive to be miracles," id., at 146, and that he had never "heard of Hanukkah being declared a general secular holiday in the United States," id., at 148. Although a witness for intervenor Chabad testified at a later hearing that "[w]hen used on Hanukkah in the home it is definitely symbolizing a religious ritual . . . whereas, at other times the menorah can symbolize anything that one wants it to symbolize," id., at 240, he also agreed that lighting the menorah in a public place "probably would" publicize the miracle it represents, id., at 263.

Nonetheless, Justice BLACKMUN attaches overriding secular meaning to the menorah. Ante, at 613-616. Contra, ante, at 632-634 (O'CONNOR, J., concurring in part and concurring in judgment); ante, at 638, 641-643 (BRENNAN, J., concurring in part and dissenting in part); post, at 664 (KENNEDY, J., concurring in judgment in part and dissenting in part). He reaches this conclusion only after exhaustive reference, not only to facts of record but primarily to academic treatises, to assess the degrees to which the menorah, the tree, and the creche are religious or secular. Ante, at 579-587, 616.