Deck the Hall City Hall That Is

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1 Deck the Hall City Hall That Is Is it constitutional for cities to erect holiday displays that contain religious symbols? 1 The holiday season is here, and city hall is beautifully covered in festive decorations. The community recently gathered for a tree lighting celebration, and the annual city hall food drive is well underway. Everything is perfect or is it? While celebration of the holidays with decorations on city property has many benefits, including an increased sense of community, cities need to be mindful that the United States and Oregon constitutions limit the city s ability to display religious symbols on public property. Holiday displays on city property must comply with the restrictions in Sections 2, 3 and 5 of Article I of the Oregon Constitution and the Establishment Clause in the First Amendment of the United States Constitution. 2 These constitutional provisions, while using different language, stand for the same basic premise that the government should not cross the line between neutrality toward religion and support of religion. 3 In other words, these provisions prohibit the government from preferring one religion over another or from favoring religious adherents collectively over nonadherents. 4 As explained in greater detail below, when and whether a holiday display on city property violates these constitutional provisions is not a simple answer. The General Legal Framework Oregon Courts have held that any claim brought under the several religion clauses in the Oregon Constitution should be analyzed under the same legal framework used for resolving such claims under the United States Constitution. 5 The problem, however, is that the United States Supreme Court has not been entirely clear on how to analyze such cases. In 1971, the United States Supreme Court created a three-prong test, known as the Lemon test, to analyze Establishment Clause claims. 6 The Lemon test requires that the challenged governmental action: 1. Have a secular purpose; 2. Have a principal effect that neither advances nor inhibits religion; and 3. Must not foster excessive entanglement with religion. Failure to meet any one of the test's three prongs meant that the government action was unconstitutional. 7 Although it has not been specifically overruled, the Lemon test has received much criticism over the years, and in various situations, the Court has either refined or even rejected the test depending upon the issues involved. 8 Nonetheless, the two times in which the Court analyzed the constitutionality of religious symbols in holiday displays on public property, it did in fact use the Lemon test, or at least portions of it, to conduct its analysis. 9 However, a later-decided case

2 that analyzed the constitutionality of a display of the Ten Commandments on public property rejected the Lemon test, 10 while another case analyzing the same issue, decided on the same day, followed the Lemon test. 11 This lack of clarity from the United States Supreme Court has led other courts to describe the current state of the Establishment Clause legal framework as purgatory and limbo. 12 The United States Court of Appeals for the Ninth Circuit, which is the Circuit to which Oregon belongs and therefore controls the legal analysis of this issue here until the Supreme Court provides further clarity, has, however, provided some more recent guidance for cities to follow. The Ninth Circuit has explained that the Lemon test remains the general rule for evaluating whether an Establishment Clause violation exists. 13 The Ninth Circuit further explained, however, that the Lemon test should not be used to determine the constitutionality of longstanding plainly religious displays that convey a historical or secular message in a nonreligious context. 14 Because holiday displays generally would not fit within this limited exception, cities in Oregon should rely upon the Lemon test to determine whether a holiday display violates the Oregon or United States Constitutions. The Holiday Display Cases As the Lemon test remains the legal framework to follow in the Ninth Circuit, it is instructive for cities to understand how the Court used the test in the two cases in which it analyzed the constitutionality of the use of religious symbols in holiday displays on public property. In 1984, the Supreme Court first addressed the inclusion of religious symbols in holiday displays on city property in the case of Lynch v. Donnelly. 15 The Lynch case concerned a holiday display sponsored by the City of Pawtucket, Rhode Island. The display featured numerous holiday decorations, including, among other things, a crèche, a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a robot, a clown, an elephant, and a teddy bear, hundreds of colored lights, and a large banner that read Seasons Greetings. 16 A group of citizens sued the city claiming that inclusion of the crèche in the display violated the Establishment Clause. Applying the Lemon test, the Court concluded in a 5-4 vote that the display was constitutional. The Court first determined that, based on the context in which the crèche was displayed, it was being used to further a legitimate secular purpose. The Court stated that Christmas has a significant secular importance in our country and the inclusion of the crèche in the display merely depicts the origins of the holiday. 17 Analogizing to its prior cases upholding federal grants for college buildings of church-sponsored institutions of higher education combining secular and religious education, noncategorical grants to church-sponsored colleges and universities, tax exemptions for church properties, Sunday Closing Laws and legislative prayers, the Court concluded that inclusion of the crèche in the holiday display did not have a principal effect of advancing religion. 18 Finally, the Court held that the display did not amount to excessive government entanglement in religion, as the physical display itself was of de minimus value, required almost no upkeep and was not created or displayed in consultation with a religious authority. 19

3 In the Lynch decision, Justice O Connor wrote a concurring opinion in which she set forth an endorsement test. Justice O Connor explained that government endorsement or disapproval of a religion violates the effect prong of the Lemon test. Justice O Connor noted that the crèche was only one of a number of items that were included in the display, and that the other items, such as the robot, clown and elephant were hardly traditional religious symbols. In this context, Justice O Connor concluded that a reasonable person would not view the crèche as an endorsement of Christianity, but, rather, as one of a number of holiday symbols. 20 Five years later, Justice O Connor s endorsement test would form the basis of the Court s opinion in its next holiday display decision, County of Allegheny v. ACLU. 21 Allegheny concerned the constitutionality of two holiday displays located on public property in downtown Pittsburgh, Pennsylvania: a crèche and an eighteen-foot menorah. 22 The crèche was located on the Grand Staircase of the Allegheny County Courthouse. The crèche was surrounded by poinsettias and topped with an angel bearing a banner proclaiming Gloria in Excelsis Deo! One block away, the menorah was displayed under an arch outside the City-County Building. Next to the menorah, and under the building's middle arch, was a forty-five-foot Christmas tree that was decorated with lights and ornaments. A sign was placed at the foot of the tree bearing the mayor's name and entitled Salute to Liberty. Beneath the title, the sign stated: During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom. 23 Because only the second prong or "effect" part of the Lemon test was at issue in Allegheny, the Court sought to determine whether, from the perspective of a reasonable observer, the display of the crèche and the menorah, in their respective particular physical settings had the effect of endorsing or disapproving religious beliefs. 24 By a 6-3 vote, the Court determined that from the perspective of a reasonable observer the menorah did not have the prohibited effect of endorsing religion. 25 The display of the menorah in conjunction with the large Christmas tree served merely to celebrate the winter holiday season. 26 The tree, because of its size and location, served to downplay the menorah and enabled the menorah to communicate the message that Christmas is not the only way to celebrate the season. 27 Likewise, the Mayor s sign served to confirm that the display of the menorah is not an endorsement of religious faith but recognition of cultural diversity. 28 The Court reached the opposite conclusion in relation to the crèche. By a 5-4 vote, the Court concluded that, in the context in which it was displayed, the crèche violated the Establishment Clause because a reasonable observer could view it as a governmental observance of Christmas, as a Christian holy day instead of merely acknowledging Christmas as a cultural phenomenon. 29 By displaying the crèche in the main and most beautiful part of the building that is the seat of county government, the county sends an unmistakable message that it supports and promotes the Christian praise to God that is the crèche s religious message. 30 The Court distinguished the crèche in Allegheny from the crèche that it found constitutionally permissible in Lynch, on the ground that the crèche in Lynch was displayed along with other secular Christmas decorations that each had a specific visual story to tell. 31 By contrast,

4 because the Allegheny crèche stood alone, the Court found that there was nothing to detract from the display's religious message. 32 How Should Cities Proceed? The only way for cities to ensure that their holiday displays will not bring legal challenges is to refrain from including any religious symbols as part of the display. Litigation will not likely follow a city holiday display that is completely secular in nature. Many cities will, however, decide to include religious symbols as part of their holiday displays. In those cases, there is no bright-line test for cities to follow to determine whether the holiday display violates the various religion clauses of the Oregon and United States constitutions. Rather, every display will be judged on the specific facts surrounding the display and whether those facts violate the Lemon test. As such, if sued, cities that include religious symbols in their holiday displays will have to demonstrate that (1) the purpose of the display is secular; (2) the principal effect of the display neither advances nor inhibits religion; and (3) the display does not foster excessive entanglement with religion. Most cities will be able to demonstrate that there is a secular purpose for a holiday display and that there is a lack of excessive entanglement with religion because of the display. Accordingly, the issue of most concern to cities will be whether the principal effect of the display advances or inhibits religion. As explained above, this analysis will seek to determine whether a reasonable observer would view the display as an endorsement of a particular religion. Courts across the country have analyzed various holiday displays under this endorsement test and have found both for 33 and against 34 the constitutionality of religious holiday displays on public property. In determining whether a government s holiday display endorses a particular religion, these cases have considered, among other factors, the following variables: (1) the location of the display; (2) whether the display is included in a larger setting with other nonreligious items; (3) the religious intensity of the display; and (4) the existence of disclaimers of public sponsorship of the display. Cities should keep these factors in mind when designing their holiday displays. In doing so, cities can follow the general guidelines listed below to help protect themselves from legal challenges: (1) religious symbols should not form the main theme of the display; (2) there should be a variety of both religious and secular symbols in the display, (3) the religious symbols in the display should represent various religious viewpoints, (4) the display should not be located on the most prominent or important part of city property and should likely be located outside if possible; and (5) if possible, the display should include a secular message such as Seasons Greetings.

5 Although nothing can be done to stop an individual or group from suing a city over its holiday display, following the guidelines listed above should strengthen a city s ability to defend itself if and when such litigation occurs. More importantly, however, following these guidelines should present the citizens of a city with a greater sense of inclusion and community, which should provide the greatest incentive for all to avoid litigation in the first place. After all, isn t fostering a greater sense of community one of the primary purposes of a city s holiday display? Editor s Note: Because of the lack of clarity in guidance from the United States Supreme Court and the ever changing nature of Establishment Clause jurisprudence, cities are encouraged to consult with their city attorneys on the legality of their holiday displays and not rely upon this article for legal advice. Nothing in this article is intended to create an attorney-client relationship between the League s attorneys and member cities. Cities have the right and are encouraged to seek and rely upon the advice of their respective city attorneys. 1 This article is brought to you by the League of Oregon Cities (LOC). It was last updated in December The League relied upon its own research as well as articles published by the Illinois Municipal League (IML) and the Texas Municipal League (TML) in drafting this article. LOC expresses its gratitude to IML and TML for their previous research on this topic. 2 This article primarily focuses on legal issues related to holiday displays erected and maintained by a city. When government bodies such as cities permit others to erect holiday displays on public property, they create limited public fora, which also implicate the free speech and free exercise provisions of the Oregon and United States Constitutions. In such situations, the issue becomes one of equal access for all to display their own views. Most commonly, legal issues arise when the government body denies access to the public forum of a display that the city finds offensive. See, e.g., Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995); but see, Pleasant Grove City, Utah v. Summum, 129 S.Ct. 1125, 1138 (2009) (Holding that a City's decision to accept more permanent privately donated monuments while rejecting others is best viewed as a form of government speech, and as a result, the City's decision is not subject to the Free Speech provisions of the First Amendment). 3 See, e.g., Eugene Sand & Gravel, Inc. v. City of Eugene, 276 Or. 1007, 1013 (1976). 4 See Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 696 (1994); City of Portland v. Thorton, 174 Or. 508, 512 (1994) (stating that [t]he guaranty of religious freedom by the First Amendment of the Federal Constitution is identical in meaning with the constitutional provisions of this state relative to the same right although expressed in different language ). 5 See e.g., Powell v. Bunn, 185 Or.App. 334, 356 (2002). 6 See Lemon v. Kurtzman, 403 U.S. 602, (1971). 7 See id. In 1997, the Court further refined the Lemon test in a case in which it upheld a statute that authorized government funds to be distributed to children attending parochial schools. See Agostini v. Felton, 521 U.S. 203, (1997). The refined test folded the third prong of the Lemon test into, and set out revised criteria for, the second prong of the test. See id.; see also Card v. City of Everett, 520 F.3d 1009, (9 th Cir. 2008) (explaining the Lemon Agostini test). Under this revised test, courts look to the governmental purpose and, in order to evaluate the effect of the government s action determine, (i) whether governmental aid results in government indoctrination; (ii) whether recipients of the aid are defined by reference to religion; and (iii) whether the aid creates excessive government entanglement with religion. Id. The Ninth Circuit has referred to this revised test as the Lemon Agostini test. However, because neither the U.S. Supreme Court nor the Ninth Circuit have yet to use the Lemon Agostini test in a case related to a government s holiday display, this article will refer to and analyze the Lemon test.

6 8 See McCreary County v. ACLU, 545 U.S. 844, 890 (2005) (Scalia, J., dissenting)(collecting criticism of Lemon by various members of the Court); Marsh v. Chambers, 463 U.S. 783, 791 (1983); Agostini, 521 U.S. at ; Access Fund v. U.S. Dept. of Agriculture, 499 F.3d 1036, (9 th Cir. 2007); Newdow v. Rio Linda Union School Dist., 597 F.3d 1007, 1017 (9 th Cir. 2010). 9 See Lynch v. Donnelly, 465 U.S. 668, 671 (1984) and County of Allegheny v. ACLU of Pittsburgh, 492 U.S. 573, 597 (1989). 10 See Van Orden v. Perry, 545 U.S. 677 (2005); see also Card v. City of Everett, 520 F.3d 1009, th Cir. 2008). 11 See McCreary, 545 U.S. at See Card, 520 F.3d at 1016 (citations omitted). 13 See id. 14 See id U.S. 668 (1984). 16 See id. at 671. A crèche is a nativity scene displaying the birth of Jesus. 17 See id. at See id. at See id. at See id. at U.S. 573 (1989). 22 A menorah is a nine branched candelabrum used on Hanukkah. 23 See Allegheny, 492 U.S. at See id. at See id. at See id. 27 See id. at See id. at See id. at See id. at See id. at See id. 33 See generally, Americans United for Separation of Church & State v City of Grand Rapids, 980 F2d 1538 (6th Cir. 1992, Mich); ACLU v Schundler, 168 F3d 92 (3rd Cir. 1999, NJ); Skoros v City of New York, 437 F3d 1 (2nd Cir. 2006, NY); American Civil Liberties Union v Wilkinson, 895 F2d 1098 (6th Cir. 1990, Ky); Doe v Clawson, 915 F2d 244 (6th Cir. 1990, Mich); Elewski v City of Syracuse, 123 F3d 51 (2nd Cir. 1997, NY); ACLU v City of Florissant, 186 F3d 1095 (8th Cir. 1999, Mo); and Mather v. Village of Mundelein, 864 F.2d 1291 (7th Cir. 1989, IL). 34 See generally, Mather v. Village of Mundelein, 864 F.2d 1291 (7th Cir. 1989, IL); American Jewish Congress v. Chicago, 827 F.2d 120, 129 (7th Cir. 1987, IL); Doe v Small, 934 F2d 743 (7th Cir. 1991, IL), vacated without op, reh, en banc, granted 947 F2d 256 (7th Cir. 1991, IL); Kaplan v Burlington, 891 F2d 1024 (2nd Cir. 1989, Vt); Chabad Lubavitch of Vermont v Burlington, 936 F2d 109 (2nd Cir. 1991, Vt); American Civil Liberties Union v Birmingham, 791 F2d 1561 (6th Cir. 1986, Mich); Smith v County of Albemarle, 895 F2d 953 (4th Cir. 1990, Va); and ACLU v Schundler, 104 F3d 1435 (3rd Cir. 1997, NJ).