More on the Endorsement Test

Allegheny on Endorsement test:

Of course, the word "endorsement" is not self-defining. Rather, it derives its meaning from other words that this Court has found useful over the years in interpreting the Establishment Clause. Thus, it has been noted that the prohibition against governmental endorsement of religion "preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred."  Moreover, the term "endorsement" is closely linked to the term "promotion," and this Court long since has held that government "may not . . . promote one religion or religious theory against another or even against the militant opposite." Whether the key word is "endorsement," "favoritism," or "promotion," the essential principle remains the same. The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from "making adherence to a religion relevant in any way to a person's standing in the political community."

On the difference between the Lynch nativity display and the Allegheny nativity display:

The concurrence applied this mode of analysis to the Pawtucket creche, seen in the context of that city's holiday celebration as a whole. In addition to the creche, the city's display contained: a Santa Claus house with a live Santa distributing candy; reindeer pulling Santa's sleigh; a live 40-foot Christmas tree strung with lights; statues of carolers in old-fashioned dress; candy-striped poles; a "talking" wishing well; a large banner proclaiming "SEASONS GREETINGS"; a miniature "village" with several houses and a church; and various "cut-out" figures, including those of a clown, a dancing elephant, a robot, and a teddy bear. The concurrence concluded that both because the creche is "a traditional symbol" of Christmas, a holiday with strong secular elements, and because the creche was "displayed along with purely secular symbols," the creche's setting "changes what viewers may fairly understand to be the purpose of the display" and "negates any message of endorsement" of "the Christian beliefs represented by the creche."

But whether a Nativity display stands alone or is accompanied by a sufficient number of elves and talking wishing wells, why should we think that it endorses religion rather than merely recognizing that a subgroup in the community is celebrating a special holiday?

Here is what I say in my article about all this:

In County of Allegheny v. American Civil Liberties Union,[1] the Supreme Court was asked to decide whether a Christmas display located on public property in Pittsburgh violated the incorporated Establishment Clause. The challenged display was a nativity scene that depicted “the infant Jesus, Mary, Joseph, farm animals, shepherds, and wise men, all placed in or before a wooden representation of a manger, which has at its crest an angel bearing a banner that proclaims ‘Gloria in Excelsis Deo?’”[2] This display was placed on the Grand Staircase of the Allegheny County Courthouse.[3] The Court applied the endorsement test and held that the Nativity Scene was an unconstitutional endorsement of “a patently Christian message: Glory to God for the birth of Jesus Christ.”[4]

But who was harmed by this passive recognition that Christmas is a special season for many residents of Pittsburgh and Allegheny County? Whose liberty was restricted by the mere placement of this display on the staircase of a public building? Justice O’Connor argued that the Christmas display was harmful because it conveyed “a message to nonadherents of Christianity that they are not full members of the political community, and a corresponding message to Christians that they are favored members of the political community.”[5] 

But why should we think this is so? If we consider the Christmas display, together with all the other displays and expressions in the public culture of Pittsburgh over the course of any given year, why isn’t the message merely one of inclusion and recognition that the community is composed of many equally valued subgroups who celebrate many different holidays and ideas? For example, if Pittsburgh were to display a poster celebrating Cinco de Mayo in the Grand Staircase of the courthouse would Justice O’Connor perceive this as endorsing a message that Latinos were favored members of the political community and non-Latinos were of second class status in the community? When a public school celebrates Black History Month, should Asians or Latinos view the celebration as sending a message of favored and disfavored racial or ethnic status? Does a Gay Pride poster in a public school send a message of favored and disfavored membership in the political community? Or should all of these passive displays be viewed as government merely recognizing that it represents a pluralistic society, one composed of many equally-valued subgroups. There is nothing wrong or harmful when government creates a public culture that recognizes the rich religious, ethnic, racial, and cultural diversity of the community it represents.

                Indeed, it might be more reasonable to view the religious cleansing of Pittsburgh’s public culture pursuant to the Court’s decree in Allegheny County as endorsing a message of disapproval of religion. Certainly Justice Kennedy interpreted the Court’s strict separationist view of the Establishment Clause as reflecting “an unjustified hostility toward religion.”[6] As Kevin Seamus Hasson observes, if religious displays are cleansed from a public culture open to a vast multitude of nonreligious displays, the resulting message is not one that is neutral toward religion:

It’s impossible for the government to be silent on religion in culture because its silence itself speaks volumes. If the government were uninvolved in our culture generally, there would be no problem with it being uninvolved in our religious expression. But it’s not uninvolved at all. The government is a major force in the culture. It celebrates everything from National Catfish Day to National Jukebox Week. It proclaims national holidays to commemorate a wide variety of things, from Thanksgiving to Memorial Day to Martin Luther King Day. It runs a comprehensive public school system that purports to teach children what they need to know about everything from literature to sex. It provides public universities that not only educate in the arts, but are a major venue for their performance and display, as well as a formidable intellectual force in the debate about them. And the government’s reach extends even further. It actually underwrites the arts of its choosing. Taken together, the government-run educational system, its subsidy of the arts, its proclamation of holidays all combine to create a cultural force of seismic proportions.[7]

Moreover, as Steven Smith notes, “alienation produced by Supreme Court decisions may be even more severe than alienation provoked by actions of legislatures or lower government officials.”[8] This is so, because when the Supreme Court cleanses religion from the public culture in the name of the Constitution, it sends a message to people of faith that “their central beliefs and values are incompatible with the fundamental and enduring principles upon which the Republic rests.”[9]

It seems clear that if the Court were truly concerned about religious liberty under the incorporated Establishment Clause, it would not allow offended observers the right to censor this harmless, passive nativity display from the public square. In Allegheny County, the Court applied the Establishment Clause not to advance anyone’s religious liberty,[10] but rather to grant one group of citizens the power to deprive another group of citizens an opportunity to view and enjoy the nativity display. In other words, as Justice Kennedy correctly observed, the Court in County of Allegheny actually created a heckler’s veto pursuant to which the Court, at the request of offended observers, acted “as a censor, issuing national decrees as to what is orthodox and what is not.”[11]

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[1] 492 U.S. 573 (1989).

[2] Id. at 580.

[3] Id. at 578.

[4] Id. at 601.

[5] Id. at 626 (O’Connor, J., concurring).

[6] Id. at 655 (Kennedy, J., concurring in part and dissenting in part).

[7] Hasson, supra note 101, at 128.

[8] Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the “No Endorsement” Test, 86 Mich. L. Rev. 266, 311 (1987).

[9] Id.

[10] As Justice Kennedy emphasized, Pittsburgh’s Nativity Display was merely “passive and symbolic” and offended observers were free to “ignore” it, to avert their eyes from it, “or even to turn their backs” to it. Allegheny County, supra, 492 U.S. at 662, 664 (Kennedy, J., concurring in part and dissenting in part).

[11] Id. at 678.