County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter/Concurrence 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 Some States had repealed establishment laws altogether, while others had replaced single establishments with laws providing for nondiscriminatory support of more than one religion.

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. 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. 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.

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. 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. 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. 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). 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. 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.

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), for it will prohibit a display only when its message, evaluated in the context in which it is presented, is nonsecular. 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, 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.

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, 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.