County of Allegheny v. American Civil Liberties Union

Justice O'Connor joined the Court's result, but justice O’Connor agreed that the courthouse creche was unconstitutional and that the Pittsburgh display was constitutional, but she explained both results through her endorsement test. Government violates the Establishment Clause when it conveys that a faith or religious belief is favored, thereby marking nonadherents as outsiders in the political community.

She stressed that a religious symbol in a core government building poses an especially serious risk of being perceived as official religious approval. The isolated creche on the courthouse’s Grand Staircase communicated governmental endorsement of Christianity, unlike the creche in Lynch, which appeared in a broader holiday display in a private commercial park.

Justice O’Connor agreed that the Christmas tree was generally a secular symbol, but she did not accept the broader suggestion that Chanukah or the menorah itself had become secular. In her view, the relevant question was whether the menorah, placed beside the tree and the liberty sign, conveyed endorsement of Judaism. It did not: the display reasonably communicated pluralism and freedom of belief rather than governmental approval of religion.

She rejected a rigid rule that government must always choose a less religious symbol whenever a secular alternative is available. The Establishment Clause requires a contextual assessment of the message a reasonable observer would take from the actual display, not a least-religious-means test.

Justice Brennan agreed that the courthouse creche unconstitutionally endorsed Christianity, but he would also have held the menorah display unconstitutional. In his view, both the creche and the menorah retained clear religious meanings that government could not appropriate for its holiday celebration.

He rejected the conclusion that the Christmas tree secularized the menorah. Context mattered, but a Christmas tree displayed beside a large menorah could itself take on religious meaning; at a minimum, reasonable observers could see the combined arrangement as endorsing both Christianity and Judaism.

Justice Brennan also rejected the effort to treat Chanukah or its central ritual object as sufficiently secular for Establishment Clause purposes. Chanukah may have cultural and historical aspects, but the menorah remains an indisputably religious symbol used in a religious observance.

In his view, adding a second religion did not solve the constitutional problem. The Establishment Clause requires neutrality not only among religions but also between religion and nonreligion. Moreover, selecting Chanukah because it falls near Christmas risked promoting a Christian-centered and distorted version of Judaism rather than genuine pluralism. Justice Marshall and Justice Stevens joined this opinion.

Justice Stevens agreed that the courthouse creche was unconstitutional and would have affirmed the Third Circuit’s judgment in full. He read the Establishment Clause to create a strong presumption against displaying religious symbols on public property, subject to a contextual showing that the display’s message is genuinely secular.

That presumption did not require hostility to religion. A religious symbol may be constitutionally displayed in a setting that clearly conveys a secular purpose, such as depictions of religious lawgivers alongside secular lawgivers in a courthouse or religious art in a museum. But the context must negate, rather than merely coexist with, the symbol’s religious message.

The menorah’s placement beside the Christmas tree did not make the menorah secular. Instead, the menorah gave the tree a religious significance, so the combined display conveyed governmental approval of Judaism and Christianity. The liberty sign was too general to overcome that message.

Justice Stevens cautioned that government displays of selected religious symbols can offend both nonmembers of the favored faiths and believers who consider the government’s use of sacred symbols irreverent. Justice Brennan and Justice Marshall joined this opinion.

Justice Kennedy would have upheld both displays. He agreed with the judgment sustaining the menorah, but he dissented from the invalidation of the creche. The Chief Justice and Justices White and Scalia joined his opinion.

He criticized the endorsement test as inconsistent with historical practice and too dependent on subjective reactions to small details of a display. In his view, the Court’s approach improperly turned constitutional analysis into an inquiry over the precise placement, size, and surrounding decorations of holiday symbols.

Justice Kennedy argued that the Establishment Clause principally forbids governmental coercion to support or participate in religion, or governmental aid so direct and substantial that it tends toward establishment. Passive acknowledgments of religion can be permissible unless they amount to an obvious governmental effort to proselytize or establish a faith.

Neither display coerced anyone to participate in religious observance, imposed a religious tax, or created a realistic danger of establishment. He regarded both the creche and the menorah as traditional seasonal symbols that permissibly acknowledged the religious as well as secular origins of holidays celebrated by many citizens.

He read Lynch as controlling the creche question. In his view, Lynch did not make constitutionality depend on whether a creche was surrounded by Santa Claus figures, reindeer, or other secular objects, nor did placement on government property distinguish the Pittsburgh creche from the city-sponsored display upheld in Lynch.