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

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

I have previously explained at some length my views on the relationship between the Establishment Clause and government-sponsored celebrations of the Christmas holiday. See Lynch v. Donnelly, 465 U.S. 668, 694-726, 104 S.Ct. 1355, 1370-1387, 79 L.Ed.2d 604 (1984) (dissenting opinion). I continue to believe that the display of an object that "retains a specifically Christian [or other] religious meaning," id., at 708, 104 S.Ct., at 1377, is incompatible with the separation of church and state demanded by our Constitution. I therefore agree with the Court that Allegheny County's display of a creche at the county courthouse signals an endorsement of the Christian faith in violation of the Establishment Clause, and join arts III-A, IV, and V of the Court's opinion. I cannot agree, however, that the city's display of a 45-foot Christmas tree and an 18-foot Chanukah menorah at the entrance to the building housing the mayor's office shows no favoritism towards Christianity, Judaism, or both. Indeed, I should have thought that the answer as to the first display supplied the answer to the second.

According to the Court, the creche display sends a message endorsing Christianity because the creche itself bears a religious meaning, because an angel in the display carries a banner declaring "Glory to God in the highest!," and because the floral decorations surrounding the creche highlight it rather than secularize it. The display of a Christmas tree and Chanukah menorah, in contrast, is said to show no endorsement of a particular faith or faiths, or of religion in general, because the Christmas tree is a secular symbol which brings out the secular elements of the menorah. Ante, at 616-617. And, Justice BLACKMUN concludes, even though the menorah has religious aspects, its display reveals no endorsement of religion because no other symbol could have been used to represent the secular aspects of the holiday of Chanukah without mocking its celebration. Ante, at 618. Rather than endorsing religion, therefore, the display merely demonstrates that "Christmas is not the only traditional way of observing the winter-holiday season," and confirms our "cultural diversity." Ante, at 617, 619.

Thus, the decision as to the menorah rests on three premises: the Christmas tree is a secular symbol; Chanukah is a holiday with secular dimensions, symbolized by the menorah;  and the government may promote pluralism by sponsoring or condoning displays having strong religious associations on its property. None of these is sound.

* The first step toward Justice BLACKMUN's conclusion is the claim that, despite its religious origins, the Christmas tree is a secular symbol. He explains:

"The Christmas tree, unlike the menorah, is not itself a     religious symbol.  Although Christmas trees once carried      religious connotations, today they typify the secular      celebration of Christmas.  Numerous Americans place Christmas      trees in their homes without subscribing to Christian      religious beliefs, and when the city's tree stands alone in      front of the City-County Building, it is not considered an      endorsement of Christian faith.  Indeed, a 40-foot Christmas tree was one of the objects that      validated the creche in Lynch.  The widely accepted view of      the Christmas tree as the preeminent secular symbol of the      Christmas holiday season serves to emphasize the secular      component of the message communicated by other elements of an      accompanying holiday display, including the Chanukah      menorah." Ante, at 616-617 (citations and footnotes     omitted).

Justice O'CONNOR accepts this view of the Christmas tree because, "whatever its origins, [it] is not regarded today as a religious symbol. Although Christmas is a public holiday that has both religious and secular aspects, the Christmas tree is widely viewed as a secular symbol of the holiday, in contrast to the creche which depicts the holiday's religious dimensions." Ante, at 633.

Thus, while acknowledging the religious origins of the Christmas tree, Justices BLACKMUN and O'CONNOR dismiss their significance. In my view, this attempt to take the "Christmas" out of the Christmas tree is unconvincing. That the tree may, without controversy, be deemed a secular symbol if found alone, does not mean that it will be so seen when combined with other symbols or objects. Indeed, Justice BLACKMUN admits that "the tree is capable of taking on a religious significance if it is decorated with religious symbols." Ante, at 617, n. 65.

The notion that the Christmas tree is necessarily secular is, indeed, so shaky that, despite superficial acceptance of the idea, Justice O'CONNOR does not really take it seriously. While conceding that the "menorah standing alone at city hall may well send" a message of endorsement of the Jewish faith, she nevertheless concludes: "By accompanying its display of a Christmas tree-a secular symbol of the Christmas holiday season with a salute to liberty, and by adding a religious symbol from a Jewish holiday also celebrated at roughly the same time of year, I conclude that the city did not endorse Judaism or religion in general, but rather conveyed a message of pluralism and freedom of belief during the holiday season." Ante, at 635. But the "pluralism" to which Justice O'CONNOR refers is religious pluralism, and the "freedom of belief" she emphasizes is freedom of religious belief. #fn-s The display of the tree and the menorah will symbolize such pluralism and freedom only if more than one religion is represented;  if only Judaism is represented, the scene is about Judaism, not about pluralism. Thus, the pluralistic message Justice O'CONNOR stresses depends on the tree's possessing some religious significance.

In asserting that the Christmas tree, regardless of its surroundings, is a purely secular symbol, Justices BLACKMUN and O'CONNOR ignore the precept they otherwise so enthusiastically embrace: that context is all important in determining the message conveyed by particular objects. See ante, at 597 (BLACKMUN, J.) (relevant question is "whether the display of the creche and the menorah, in their respective 'particular physical settings,' has the effect of endorsing or disapproving religious beliefs") (quoting School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390, 105 S.Ct. 3216, 3226, 87 L.Ed.2d 267 (1985)); ante, at 624 (O'CONNOR, J.) (" '[E]very government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion' ") (quoting Lynch v. Donnelly, 465 U.S., at 694, 104 S.Ct., at 1370 (O'CONNOR, J., concurring));  ante, at 636 (O'CONNOR, J.) ("Establishment Clause analysis . . . depends on sensitivity to the context and circumstances presented by each case");  ibid. (emphasizing "the need to focus on the specific practice in question in its particular physical setting and context"). In analyzing the symbolic character of the Christmas tree, both Justices BLACKMUN and O'CONNOR abandon this ontextual inquiry. In doing so, they go badly astray.

Positioned as it was, the Christmas tree's religious significance was bound to come to the fore. Situated next to the menorah-which, Justice BLACKMUN acknowledges, is "a symbol with religious meaning," ante, at 618, and indeed, is "the central religious symbol and ritual object of" Chanukah, ante, at 633 (O'CONNOR, J.)-the Christmas tree's religious dimension could not be overlooked by observers of the display. Even though the tree alone may be deemed predominantly secular, it can hardly be so characterized when placed next to such a forthrightly religious symbol. Consider a poster featuring a star of David, a statue of Buddha, a Christmas tree, a mosque, and a drawing of Krishna. There can be no doubt that, when found in such company, the tree serves as an unabashedly religious symbol.

Justice BLACKMUN believes that it is the tree that changes the message of the menorah, rather than the menorah that alters our view of the tree. After the abrupt dismissal of the suggestion that the flora surrounding the creche might have diluted the religious character of the display at the County Courthouse, ante, at 599, his quick conclusion that the Christmas tree had a secularizing effect on the menorah is surprising. The distinguishing characteristic, it appears, is the size of the tree. The tree, we are told, is much taller-21/2 times taller, in fact-than the menorah, and is located directly under one of the building's archways, whereas the menorah "is positioned to one side . . . [i]n the shadow of the tree." Ante, at 617.

As a factual matter, it seems to me that the sight of an 18-foot menorah would be far more eye catching than that of a rather conventionally sized Christmas tree. It also seems to me likely that the symbol with the more singular message will predominate over one lacking such a clear meaning. Given the homogenized message that Justice BLACKMUN associates with the Christmas tree, I would expect that the menorah, with its concededly religious character, would tend to dominate the tree. And, though Justice BLACKMUN shunts the point to a footnote at the end of his opinion, ante, at 621, n. 70, it is highly relevant that the menorah was lit during a religious ceremony complete with traditional religious blessings. I do not comprehend how the failure to challenge separately this portion of the city's festivities precludes us from considering it in assessing the message sent by the display as a whole. But see ibid. With such an openly religious introduction, it is most likely that the religious aspects of the menorah would be front and center in this display.

I would not, however, presume to say that my interpretation of the tree's significance is the "correct" one, or the one shared by most visitors to the City-County Building. I do not know how we can decide whether it was the tree that stripped the religious connotations from the menorah, or the menorah that laid bare the religious origins of the tree. Both are reasonable interpretations of the scene the city presented, and thus both, I think, should satisfy Justice BLACKMUN'S requirement that the display "be judged according to the standard of a 'reasonable observer.' " Ante, at 620. I shudder to think that the only "reasonable observer" is one who shares the particular views on perspective, spacing, and accent expressed in Justice BLACKMUN's opinion, thus making analysis under the Establishment Clause look more like an exam in Art 101 than an inquiry into constitutional law.

The second premise on which today's decision rests is the notion that Chanukah is a partly secular holiday, for which the menorah can serve as a secular symbol. It is no surprise and no anomaly that Chanukah has historical and societal roots that range beyond the purely religious. I would venture that most, if not all, major religious holidays have beginnings and enjoy histories studded with f gures, events, and practices that are not strictly religious. It does not seem to me that the mere fact that Chanukah shares this kind of background makes it a secular holiday in any meaningful sense. The menorah is indisputably a religious symbol, used ritually in a celebration that has deep religious significance. That, in my view, is all that need be said. Whatever secular practices the holiday of Chanukah has taken on in its contemporary observance are beside the point.

Indeed, at the very outset of his discussion of the menorah display, Justice BLACKMUN recognizes that the menorah is a religious symbol. Ante, at 613. That should have been the end of the case. But, as did the Court in Lynch, Justice BLACKMUN, "by focusing on the holiday 'context' in which the [menorah] appeared, seeks to explain away the clear religious import of the [menorah]. . . ." 465 U.S., at 705, 104 S.Ct., at 1376 (BRENNAN, J., dissenting). By the end of the opinion, the menorah has become but a coequal symbol, with the Christmas tree, of "the winter-holiday season." Ante, at 620. Pittsburgh's secularization of an inherently religious symbol, aided and abetted here by Justice BLACKMUN's opinion, recalls the effort in Lynch to render the creche a secular symbol. As I said then: "To suggest, as the Court does, that such a symbol is merely 'traditional' and therefore no different from Santa's house or reindeer is not only offensive to those for whom the creche has profound significance, but insulting to those who insist for religious or personal reasons that the story of Christ is in no sense a part of 'history' nor an unavoidable element of our national 'heritage.' "  465 U.S., at 711-712, 104 S.Ct., at 1379. As Justice O'CONNOR rightly observes, Justice BLACKMUN "obscures the religious nature of the menorah and the holiday of Chanukah." Ante, at 633.

I cannot, in short, accept the effort to transform an emblem of religious faith into the innocuous "symbol for a holiday that . . . has both religious and secular dimensions." Ante, at 614 (BLACKMUN, J.).

Justice BLACKMUN, in his acceptance of the city's message of "diversity," ante, at 619, and, even more so, Justice O'CONNOR, in her approval of the "message of pluralism and freedom to choose one's own beliefs," ante, at 634, appear to believe that, where seasonal displays are concerned, more is better. Whereas a display might be constitutionally problematic if it showcased the holiday of just one religion, those problems vaporize as soon as more than one religion is included. I know of no principle under the Establishment Clause, however, that permits us to conclude that governmental promotion of religion is acceptable so long as one religion is not favored. We have, on the contrary, interpreted that Clause to require neutrality, not just among religions, but between religion and nonreligion. See, e.g., Everson v. Board of Education of Ewing, 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947); Wallace v. Jaffree, 472 U.S. 38, 52-54, 105 S.Ct. 2479, 2487-2488, 86 L.Ed.2d 29 (1985).

Nor do I discern the theory under which the government is permitted to appropriate particular holidays and religious objects to its own use in celebrating "pluralism." The message of the sign announcing a "Salute to Liberty" is not religious, but patriotic; the government's use of religion to promote its own cause is undoubtedly offensive to those whose religious beliefs are not bound up with their attitude toward the Nation.

The uncritical acceptance of a message of religious pluralism also ignores the extent to which even that message may offend. Many religious faiths are hostile to each other, and indeed, refuse even to participate in ecumenical services designed to demonstrate the very pluralism Justices BLACKMUN and O'CONNOR extol. To lump the ritual objects and holidays of religions together without regard to their attitudes toward such inc usiveness, or to decide which religions should be excluded because of the possibility of offense, is not a benign or beneficent celebration of pluralism: it is instead an interference in religious matters precluded by the Establishment Clause.

The government-sponsored display of the menorah alongside a Christmas tree also works a distortion of the Jewish religious calendar. As Justice BLACKMUN acknowledges, "the proximity of Christmas [may] accoun[t] for the social prominence of Chanukah in this country." Ante, at 586. It is the proximity of Christmas that undoubtedly accounts for the city's decision to participate in the celebration of Chanukah, rather than the far more significant Jewish holidays of Rosh Hashanah and Yom Kippur. Contrary to the impression the city and Justices BLACKMUN and O'CONNOR seem to create, with their emphasis on "the winter-holiday season," December is not the holiday season for Judaism. Thus, the city's erection alongside the Christmas tree of the symbol of a relatively minor Jewish religious holiday, far from conveying "the city's secular recognition of different traditions for celebrating the winter-holiday season," ante, at 620 (BLACKMUN, J.), or "a message of pluralism and freedom of belief," ante, at 635 (O'CONNOR, J.), has the effect of promoting a Christianized version of Judaism. The holiday calendar they appear willing to accept revolves exclusively around a Christian holiday. And those religions that have no holiday at all during the period between Thanksgiving and New Year's Day will not benefit, even in a second-class manner, from the city's once-a-year tribute to "liberty" and "freedom of belief." This is not "pluralism" as I understand it.