465 U.S.

668
104 S.Ct. 1355
79 L.Ed.2d 604

Dennis LYNCH, etc., et al., Petitioners

v.
Daniel DONNELLY et al.
No. 82-1256.
Argued Oct. 4, 1983.
Decided March 5, 1984.

Rehearing Denied May 14, 1984. See U.S., 104 S.Ct. 2376.
Syllabus
The city of Pawtucket, R.I., annually erects a Christmas display in a park
owned by a nonprofit organization and located in the heart of the city's
shopping district. The display includes, in addition to such objects as a
Santa Claus house, a Christmas tree, and a banner that reads "SEASONS
GREETINGS," a creche or Nativity scene, which has been part of this
annual display for 40 years or more. Respondents brought an action in
Federal District Court, challenging the inclusion of the creche in the
display on the ground that it violated the Establishment Clause of the First
Amendment, as made applicable to the states by the Fourteenth
Amendment. The District Court upheld the challenge and permanently
enjoined the city from including the creche in the display. The Court of
Appeals affirmed.
Held: Notwithstanding the religious significance of the creche, Pawtucket
has not violated the Establishment Clause. Pp. 672-687.
(a) The concept of a "wall" of separation between church and state is a
useful metaphor but is not an accurate description of the practical aspects
of the relationship that in fact exists. The Constitution does not require
complete separation of church and state; it affirmatively mandates
accommodation, not merely tolerance, of all religions, and forbids hostility
toward any. Anything less would require the "callous indifference,"
Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 684, 96 L.Ed. 954,
that was never intended by the Establishment Clause. Pp. 672-673.

(b) This Court's interpretation of the Establishment Clause comports with

the contemporaneous understanding of the Framers' intent. That neither
the draftsmen of the Constitution, who were Members of the First
Congress, nor the First Congress itself, saw any establishment problem in
employing Chaplains to offer daily prayers in the Congress is a striking
example of the accommodation of religious beliefs intended by the
Framers. Pp. 673-674.
(c) Our history is pervaded by official acknowledgment of the role of
religion in American life, and equally pervasive is evidence of
accommodation of all faiths and all forms of religious expression and
hostility toward none. Pp. 674-678.
(d) Rather than taking an absolutist approach in applying the
Establishment Clause and mechanically invalidating all governmental
conduct or statutes that confer benefits or give special recognition to
religion in general or to one faith, this Court has scrutinized challenged
conduct or legislation to determine whether, in reality, it establishes a
religion or religious faith or tends to do so. In the line-drawing process
called for in each case, it has often been found useful to inquire whether
the challenged law or conduct has a secular purpose, whether its principal
or primary effect is to advance or inhibit religion, and whether it creates
an excessive entanglement of government with religion. But this Court has
been unwilling to be confined to any single test or criterion in this
sensitive area. Pp. 678-679.
(e) Here, the focus of the inquiry must be on the creche in the context of
the Christmas season. Focus exclusively on the religious component of
any activity would inevitably lead to its invalidation under the
Establishment Clause. Pp. 679-680.
(f) Based on the record in this case, the city has a secular purpose for
including the creche in its Christmas display and has not impermissibly
advanced religion or created an excessive entanglement between religion
and government. The display is sponsored by the city to celebrate the
Holiday recognized by Congress and national tradition and to depict the
origins of that Holiday; these are legitimate secular purposes. Whatever
benefit to one faith or religion or to all religions inclusion of the creche in
the display effects is indirect, remote, and incidental, and is no more an
advancement or endorsement of religion than the congressional and
executive recognition of the origins of Christmas, or the exhibition of
religious paintings in governmentally supported museums. This Court is
unable to discern a greater aid to religion from the inclusion of the creche

than from the substantial benefits previously held not violative of the
Establishment Clause. As to administrative entanglement, there is no
evidence of contact with church authorities concerning the content or
design of the exhibition prior to or since the city's purchase of the creche.
No expenditures for maintenance of the creche have been necessary, and,
since the city owns the creche, now valued at $200, the tangible material
it contributes is de minimis. Political divisiveness alone cannot serve to
invalidate otherwise permissible conduct, and, in any event, apart from the
instant litigation, there is no evidence of political friction or divisiveness
over the creche in the 40-year history of the city's Christmas celebration.
Pp. 680-685.
(g) It would be ironic if the inclusion of the creche in the display, as part
of a celebration of an event acknowledged in the Western World for 20
centuries, and in this country by the people, the Executive Branch,
Congress, and the courts for 2 centuries, would so "taint" the exhibition as
to render it violative of the Establishment Clause. To forbid the use of this
one passive symbol while hymns and carols are sung and played in public
places including schools, and while Congress and state legislatures open
public sessions with prayers, would be an overreaction contrary to our
history and our holdings. Pp. 685-686.
691 F.2d 1029 (1st Cir.1982), reversed.
William F. McMahon, Providence, R.I., for petitioners.
Solicitor Gen. Rex E. Lee, Washington, D.C., for the U.S. as amicus
curiae.
Amato A. DeLuca, Warwick, R.I., for respondents.
THE CHIEF JUSTICE delivered the opinion of the Court.

We granted certiorari to decide whether the Establishment Clause of the First

Amendment prohibits a municipality from including a creche, or Nativity
scene, in its annual Christmas display.

* Each year, in cooperation with the downtown retail merchants' association,

the City of Pawtucket, Rhode Island, erects a Christmas display as part of its
observance of the Christmas holiday season. The display is situated in a park
owned by a nonprofit organization and located in the heart of the shopping
district. The display is essentially like those to be found in hundreds of towns or

cities across the Nationoften on public groundsduring the Christmas

season. The Pawtucket display comprises many of the figures and decorations
traditionally associated with Christmas, including, among other things, a Santa
Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas
tree, carolers, cutout figures representing such characters as a clown, an
elephant, and a teddy bear, hundreds of colored lights, a large banner that reads
"SEASONS GREETINGS," and the creche at issue here. All components of
this display are owned by the City.
3

The creche, which has been included in the display for 40 or more years,
consists of the traditional figures, including the Infant Jesus, Mary and Joseph,
angels, shepherds, kings, and animals, all ranging in height from 5" to 5'. In
1973, when the present creche was acquired, it cost the City $1365; it now is
valued at $200. The erection and dismantling of the creche costs the City about
$20 per year; nominal expenses are incurred in lighting the creche. No money
has been expended on its maintenance for the past 10 years.

Respondents, Pawtucket residents and individual members of the Rhode Island

affiliate of the American Civil Liberties Union, and the affiliate itself, brought
this action in the United States District Court for Rhode Island, challenging the
City's inclusion of the creche in the annual display. The District Court held that
the City's inclusion of the creche in the display violates the Establishment
Clause, Donnelly v. Lynch, 525 F.Supp. 1150, 1178 (D R.I.1981), which is
binding on the states through the Fourteenth Amendment. The District Court
found that, by including the creche in the Christmas display, the City has "tried
to endorse and promulgate religious beliefs," 525 F.Supp., at 1173, and that
"erection of the creche has the real and substantial effect of affiliating the City
with the Christian beliefs that the creche represents." Id., at 1177. This
"appearance of official sponsorship," it believed, "confers more than a remote
and incidental benefit on Christianity." Id., at 1178. Last, although the court
acknowledged the absence of administrative entanglement, it found that
excessive entanglement has been fostered as a result of the political
divisiveness of including the creche in the celebration. Id., at 1179-1180. The
City was permanently enjoined from including the creche in the display.

A divided panel of the Court of Appeals for the First Circuit affirmed. Donnelly
v. Lynch, 691 F.2d 1029 (1982). We granted certiorari, --- U.S. ----, 103 S.Ct.
1766, 76 L.Ed.2d 340 (1983), and we reverse.

II
A.

This Court has explained that the purpose of the Establishment and Free
Exercise Clauses of the First Amendment is

"to prevent, as far as possible, the intrusion of either [the church or the state]
into the precincts of the other." Lemon v. Kurtzman, 403 U.S. 602, 614, 91
S.Ct. 2105, 2112, 29 L.Ed.2d 745 (1971).

At the same time, however, the Court has recognized that

"total separation is not possible in an absolute sense. Some relationship between

government and religious organizations is inevitable." Ibid.

10

In every Establishment Clause case, we must reconcile the inescapable tension

between the objective of preventing unnecessary intrusion of either the church
or the state upon the other, and the reality that, as the Court has so often noted,
total separation of the two is not possible.

11

The Court has sometimes described the Religion Clauses as erecting a "wall"
between church and state, see, e.g., Everson v. Board of Education, 330 U.S. 1,
18, 67 S.Ct. 504, 513, 91 L.Ed. 711 (1947). The concept of a "wall" of
separation is a useful figure of speech probably deriving from views of Thomas
Jefferson.1 The metaphor has served as a reminder that the Establishment
Clause forbids an established church or anything approaching it. But the
metaphor itself is not a wholly accurate description of the practical aspects of
the relationship that in fact exists between church and state.

12

No significant segment of our society and no institution within it can exist in a

vacuum or in total or absolute isolation from all the other parts, much less from
government. "It has never been thought either possible or desirable to enforce a
regime of total separation. . . ." Committee for Public Education & Religious
Liberty v. Nyquist, 413 U.S. 756, 760, 93 S.Ct. 2955, 2958, 37 L.Ed.2d 948
(1973). Nor does the Constitution require complete separation of church and
state; it affirmatively mandates accommodation, not merely tolerance, of all
religions, and forbids hostility toward any. See, e.g., Zorach v. Clauson, 343
U.S. 306, 314, 315, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952); McCollum v.
Board of Education, 333 U.S. 203, 211, 68 S.Ct. 461, 465, 92 L.Ed. 649
(1948). Anything less would require the "callous indifference" we have said
was never intended by the Establishment Clause. Zorach, supra, 343 U.S., at
314, 72 S.Ct., at 684. Indeed, we have observed, such hostility would bring us
into "war with our national tradition as embodied in the First Amendment's
guaranty of the free exercise of religion." McCollum, supra, 333 U.S., at 211-

212, 68 S.Ct., at 465.

B
13

The Court's interpretation of the Establishment Clause has comported with

what history reveals was the contemporaneous understanding of its guarantees.
A significant example of the contemporaneous understanding of that Clause is
found in the events of the first week of the First Session of the First Congress in
1789. In the very week that Congress approved the Establishment Clause as
part of the Bill of Rights for submission to the states, it enacted legislation
providing for paid chaplains for the House and Senate. In Marsh v. Chambers, -- U.S. ----, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), we noted that seventeen
Members of that First Congress had been Delegates to the Constitutional
Convention where freedom of speech, press and religion and antagonism
toward an established church were subjects of frequent discussion. We saw no
conflict with the Establishment Clause when Nebraska employed members of
the clergy as official Legislative Chaplains to give opening prayers at sessions
of the state legislature. Id., at ----, 103 S.Ct., at 3336.

14

The interpretation of the Establishment Clause by Congress in 1789 takes on

special significance in light of the Court's emphasis that the First Congress

15

"was a Congress whose constitutional decisions have always been regarded, as

they should be regarded, as of the greatest weight in the interpretation of that
fundamental instrument," Myers v. United States, 272 U.S. 52, 174-175, 47
S.Ct. 21, 45, 71 L.Ed. 160 (1926).

16

It is clear that neither the seventeen draftsmen of the Constitution who were
Members of the First Congress, nor the Congress of 1789, saw any
establishment problem in the employment of congressional Chaplains to offer
daily prayers in the Congress, a practice that has continued for nearly two
centuries. It would be difficult to identify a more striking example of the
accommodation of religious belief intended by the Framers.

C
17

There is an unbroken history of official acknowledgment by all three branches

of government of the role of religion in American life from at least 1789.
Seldom in our opinions was this more affirmatively expressed than in Justice
Douglas' opinion for the Court validating a program allowing release of public
school students from classes to attend off-campus religious exercises. Rejecting
a claim that the program violated the Establishment Clause, the Court asserted

pointedly:
18

"We are a religious people whose institutions presuppose a Supreme Being."

Zorach v. Clauson, supra, 343 U.S., at 313, 72 S.Ct., at 684.

19

See also Abington School District v. Schempp, 374 U.S. 203, 213, 83 S.Ct.
1560, 1566, 10 L.Ed.2d 844 (1963).

20

Our history is replete with official references to the value and invocation of
Divine guidance in deliberations and pronouncements of the Founding Fathers
and contemporary leaders. Beginning in the early colonial period long before
Independence, a day of Thanksgiving was celebrated as a religious holiday to
give thanks for the bounties of Nature as gifts from God. President Washington
and his successors proclaimed Thanksgiving, with all its religious overtones, a
day of national celebration2 and Congress made it a National Holiday more
than a century ago. Ch. 167, 16 Stat. 168 (1870). That holiday has not lost its
theme of expressing thanks for Divine aid3 any more than has Christmas lost its
religious significance.

21

Executive Orders and other official announcements of Presidents and of the

Congress have proclaimed both Christmas and Thanksgiving National Holidays
in religious terms. And, by Acts of Congress, it has long been the practice that
federal employees are released from duties on these National Holidays, while
being paid from the same public revenues that provide the compensation of the
Chaplains of the Senate and the House and the military services. See J. Res. 5,
23 Stat. 516 (1885). Thus, it is clear that Government has long recognized
indeed it has subsidized holidays with religious significance.

22

Other examples of reference to our religious heritage are found in the statutorily
prescribed national motto "In God We Trust," 36 U.S.C. 186, which Congress
and the President mandated for our currency, see 31 U.S.C. 324, and in the
language "One nation under God," as part of the Pledge of Allegiance to the
American flag. That pledge is recited by thousands of public school children
and adultsevery year.

23

Art galleries supported by public revenues display religious paintings of the

15th and 16th centuries, predominantly inspired by one religious faith. The
National Gallery in Washington, maintained with Government support, for
example, has long exhibited masterpieces with religious messages, notably the
Last Supper, and paintings depicting the Birth of Christ, the Crucifixion, and
the Resurrection, among many others with explicit Christian themes and

messages.4 The very chamber in which oral arguments on this case were heard
is decorated with a notable and permanentnot seasonalsymbol of religion:
Moses with Ten Commandments. Congress has long provided chapels in the
Capitol for religious worship and meditation.
24

There are countless other illustrations of the Government's acknowledgment of

our religious heritage and governmental sponsorship of graphic manifestations
of that heritage. Congress has directed the President to proclaim a National Day
of Prayer each year "on which [day] the people of the United States may turn to
God in prayer and meditation at churches, in groups, and as individuals." 36
U.S.C. 169h. Our Presidents have repeatedly issued such Proclamations.5
Presidential Proclamations and messages have also issued to commemorate
Jewish Heritage Week, Proclamation No. 4844, 46 Fed.Reg. 25,07 7 (1981),
and the Jewish High Holy Days, 17 Weekly Comp.Pres.Doc. 1058 (Sept. 29,
1981). One cannot look at even this brief resume without finding that our
history is pervaded by expressions of religious beliefs such as are found in
Zorach, supra. Equally pervasive is the evidence of accommodation of all
faiths and all forms of religious expression, and hostility toward none. Through
this accommodation, as Justice Douglas observed, governmental action has
"follow[ed] the best of our traditions" and "respect[ed] the religious nature of
our people." Id., 343 U.S., at 314, 72 S.Ct., at 684.

III
25

This history may help explain why the Court consistently has declined to take a
rigid, absolutist view of the Establishment Clause. We have refused "to
construe the Religion Clauses with a literalness that would undermine the
ultimate constitutional objective as illuminated by history." Walz v. Tax
Commission, 397 U.S. 664, 671, 90 S.Ct. 1409, 1412, 25 L.Ed.2d 697 (1970)
(Emphasis added). In our modern, complex society, whose traditions and
constitutional underpinnings rest on and encourage diversity and pluralism in
all areas, an absolutist approach in applying the Establishment Clause is
simplistic and has been uniformly rejected by the Court.

26

Rather than mechanically invalidating all governmental conduct or statutes that

confer benefits or give special recognition to religion in general or to one faith
as an absolutist approach would dictatethe Court has scrutinized
challenged legislation or official conduct to determine whether, in reality, it
establishes a religion or religious faith, or tends to do so. See Walz, supra, at
669, 90 S.Ct., at 1411. Joseph Story wrote a century and a half ago:

27

"The real object of the [First] Amendment was . . . to prevent any national

ecclesiastical establishment, which should give to an hierarchy the exclusive

patronage of the national government." 3 Story, Commentaries on the
Constitution of the United States 728 (1833).
28

In each case, the inquiry calls for line drawing; no fixed, per se rule can be
framed. The Establishment Clause like the Due Process Clauses is not a
precise, detailed provision in a legal code capable of ready application. The
purpose of the Establishment Clause "was to state an objective, not to write a
statute." Walz, supra, at 668, 90 S.Ct., at 1411. The line between permissible
relationships and those barred by the Clause can no more be straight and
unwavering than due process can be defined in a single stroke or phrase or test.
The Clause erects a "blurred, indistinct, and variable barrier depending on all
the circumstances of a particular relationship." Lemon, supra, 403 U.S., at 614,
91 S.Ct., at 2112.

29

In the line-drawing process we have often found it useful to inquire whether the
challenged law or conduct has a secular purpose, whether its principal or
primary effect is to advance or inhibit religion, and whether it creates an
excessive entanglement of government with religion. Lemon, supra. But, we
have repeatedly emphasized our unwillingness to be confined to any single test
or criterion in this sensitive area. See e.g. Tilton v. Richardson, 403 U.S. 672,
677-678, 91 S.Ct. 2091, 2095, 29 L.Ed.2d 790 (1971); Nyquist, supra, 413
U.S., at 773, 93 S.Ct., at 2965. In two cases, the Court did not even apply the
Lemon "test." We did not, for example, consider that analysis relevant in
Marsh, supra. Nor did we find Lemon useful in Larson v. Valente, 456 U.S.
228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982), where there was substantial
evidence of overt discrimination against a particular church.

30

In this case, the focus of our inquiry must be on the creche in the context of the
Christmas season. See, e.g., Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66
L.Ed.2d 199 (1980) (per curiam ); Abington School District v. Schempp, supra.
In Stone, for example, we invalidated a state statute requiring the posting of a
copy of the Ten Commandments on public classroom walls. But the Court
carefully pointed out that the Commandments were posted purely as a religious
admonition, not "integrated into the school curriculum, where the Bible may
constitutionally be used in an appropriate study of history, civilization, ethics,
comparative religion, or the like." 449 U.S., at 42, 101 S.Ct., at 194. Similarly,
in Abington, although the Court struck down the practices in two States
requiring daily Bible readings in public schools, it specifically noted that
nothing in the Court's holding was intended to "indicat[e] that such study of the
Bible or of religion, when presented objectively as part of a secular program of
education, may not be effected consistently with the First Amendment." 374

U.S., at 225, 83 S.Ct., at 1573. Focus exclusively on the religious component of

any activity would inevitably lead to its invalidation under the Establishment
Clause.
31

The Court has invalidated legislation or governmental action on the ground that
a secular purpose was lacking, but only when it has concluded there was no
question that the statute or activity was motivated wholly by religious
considerations. See, e.g., Stone v. Graham, supra, 449 U.S., at 41, 101 S.Ct., at
193; Epperson v. Arkansas, 393 U.S. 97, 107-109, 89 S.Ct. 266, 272-273, 21
L.Ed.2d 228 (1968); Abington School District v. Schempp, supra, 374 U.S., at
223-224, 83 S.Ct., at 1572; Engel v. Vitale, 370 U.S. 421, 424-425, 82 S.Ct.
1261, 1263-1264, 8 L.Ed.2d 601 (1962). Even where the benefits to religion
were substantial, as in Everson, supra; Board of Education v. Allen, 392 U.S.
236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), Walz, supra, and Tilton, supra, we
saw a secular purpose and no conflict with the Establishment Clause. Cf.
Larkin v. Grendel's Den, 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982).

32

The District Court inferred from the religious nature of the creche that the City
has no secular purpose for the display. In so doing, it rejected the City's claim
that its reasons for including the creche are essentially the same as its reasons
for sponsoring the display as a whole. The District Court plainly erred by
focusing almost exclusively on the creche. When viewed in the proper context
of the Christmas Holiday season, it is apparent that, on this record, there is
insufficient evidence to establish that the inclusion of the creche is a purposeful
or surreptitious effort to express some kind of subtle governmental advocacy of
a particular religious message. In a pluralistic society a variety of motives and
purposes are implicated. The City, like the Congresses and Presidents,
however, has principally taken note of a significant historical religious event
long celebrated in the Western World. The creche in the display depicts the
historical origins of this traditional event long recognized as a National
Holiday. See Allen v. Hickel, 424 F.2d 944 (CADC 1970); Citizens Concerned
for Separation of Church and State v. City and County of Denver, 526 F.Supp.
1310 (D Colo.1981).

33

The narrow question is whether there is a secular purpose for Pawtucket's

display of the creche. The display is sponsored by the City to celebrate the
Holiday and to depict the origins of that Holiday. These are legitimate secular
purposes.6 The District Court's inference, drawn from the religious nature of
the creche, that the City has no secular purpose was, on this record, clearly
erroneous.7

34

The District Court found that the primary effect of including the creche is to

confer a substantial and impermissible benefit on religion in general and on the

Christian faith in particular. Comparisons of the relative benefits to religion of
different forms of governmental support are elusive and difficult to make. But
to conclude that the primary effect of including the creche is to advance
religion in violation of the Establishment Clause would require that we view it
as more beneficial to and more an endorsement of religion, for example, than
expenditure of large sums of public money for textbooks supplied throughout
the country to students attending church-sponsored schools, Board of
Education v. Allen, supra;8 expenditure of public funds for transportation of
students to church-sponsored schools, Everson v. Board of Education, supra;9
federal grants for college buildings of church-sponsored institutions of higher
education combining secular and religious education, Tilton, supra;10
noncategorical grants to church-sponsored colleges and universities, Roemer v.
Board of Public Works, 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976);
and the tax exemptions for church properties sanctioned in Walz, supra. It
would also require that we view it as more of an endorsement of religion than
the Sunday Closing Laws upheld in McGowan v. Maryland, 366 U.S. 420, 81
S.Ct. 1101, 6 L.Ed.2d 393 (1961);11 the release time program for religious
training in Zorach, supra; and the legislative prayers upheld in Marsh, supra.
35

We are unable to discern a greater aid to religion deriving from inclusion of the
creche than from these benefits and endorsements previously held not violative
of the Establishment Clause. What was said about the legislative prayers in
Marsh, supra, --- U.S., at ----, 103 S.Ct., at 3336, and implied about the Sunday
Closing Laws in McGowan is true of the City's inclusion of the creche: its
"reason or effect merely happens to coincide or harmonize with the tenets of
some . . . religions." See McGowan, supra, 366 U.S., at 442, 81 S.Ct., at 1113.

36

This case differs significantly from Larkin v. Grendel's Den, supra, and
McCollum, supra, where religion was substantially aided. In Grendel's Den,
important governmental power a licensing veto authorityhad been vested in
churches. In McCollum, government had made religious instruction available in
public school classrooms; the State had not only used the public school
buildings for the teaching of religion, it had "afford[ed] sectarian groups an
invaluable aid . . . [by] provid[ing] pupils for their religious classes through use
of the State's compulsory public school machinery." 333 U.S., at 212, 68 S.Ct.,
at 466. No comparable benefit to religion is discernible here.

37

The dissent asserts some observers may perceive that the City has aligned itself
with the Christian faith by including a Christian symbol in its display and that
this serves to advance religion. We can assume, arguendo, that the display
advances religion in a sense; but our precedents plainly contemplate that on

occasion some advancement of religion will result from governmental action.

The Court has made it abundantly clear, however, that "not every law that
confers an 'indirect,' 'remote,' or 'incidental' benefit upon [religion] is, for that
reason alone, constitutionally invalid." Nyquist, supra, 413 U.S., at 771, 93
S.Ct., at 2965; see also Widmar v. Vincent, 454 U.S. 263, 273, 102 S.Ct. 269,
276, 70 L.Ed.2d 440 (1981). Here, whatever benefit to one faith or religion or
to all religions, is indirect, remote and incidental; display of the creche is no
more an advancement or endorsement of religion than the Congressional and
Executive recognition of the origins of the Holiday itself as "Christ's Mass," or
the exhibition of literally hundreds of religious paintings in governmentally
supported museums.
38

The District Court found that there had been no administrative entanglement
between religion and state resulting from the City's ownership and use of the
creche. 525 F.Supp., at 1179. But it went on to hold that some political
divisiveness was engendered by this litigation. Coupled with its finding of an
impermissible sectarian purpose and effect, this persuaded the court that there
was "excessive entanglement." The Court of Appeals expressly declined to
accept the District Court's finding that inclusion of the creche has caused
political divisiveness along religious lines, and noted that this Court has never
held that political divisiveness alone was sufficient to invalidate government
conduct.

39

Entanglement is a question of kind and degree. In this case, however, there is

no reason to disturb the District Court's finding on the absence of
administrative entanglement. There is no evidence of contact with church
authorities concerning the content or design of the exhibit prior to or since
Pawtucket's purchase of the creche. No expenditures for maintenance of the
creche have been necessary; and since the City owns the creche, now valued at
$200, the tangible material it contributes is de minimis. In many respects the
display requires far less ongoing, day-to-day interaction between church and
state than religious paintings in public galleries. There is nothing here, of
course, like the "comprehensive, discriminating, and continuing state
surveillance" or the "enduring entanglement" present in Lemon, supra, 403
U.S., at 619-622, 91 S.Ct., at 2114-2115.

40

The Court of Appeals correctly observed that this Court has not held that
political divisiveness alone can serve to invalidate otherwise permissible
conduct. And we decline to so hold today. This case does not involve a direct
subsidy to church-sponsored schools or colleges, or other religious institutions,
and hence no inquiry into potential political divisiveness is even called for,
Mueller v. Allen, --- U.S. ----, 103 S.Ct. 3062, 3071, n. 11, 77 L.Ed.2d 721

(1983). In any event, apart from this litigation there is no evidence of political
friction or divisiveness over the creche in the 40-year history of Pawtucket's
Christmas celebration. The District Court stated that the inclusion of the creche
for the 40 years has been "marked by no apparent dissension" and that the
display has had a "calm history." 525 F.Supp., at 1179. Curiously, it went on to
hold that the political divisiveness engendered by this lawsuit was evidence of
excessive entanglement. A litigant cannot, by the very act of commencing a
lawsuit, however, create the appearance of divisiveness and then exploit it as
evidence of entanglement.
41

We are satisfied that the City has a secular purpose for including the creche,
that the City has not impermissibly advanced religion, and that including the
creche does not create excessive entanglement between religion and
government.

IV
42

Justice BRENNAN describes the creche as a "re-creation of an event that lies at

the heart of Christian faith," post, at 711. The creche, like a painting, is passive;
admittedly it is a reminder of the origins of Christmas. Even the traditional,
purely secular displays extant at Christmas, with or without a creche, would
inevitably recall the religious nature of the Holiday. The display engenders a
friendly community spirit of good will in keeping with the season. The creche
may well have special meaning to those whose faith includes the celebration of
religious masses, but none who sense the origins of the Christmas celebration
would fail to be aware of its religious implications. That the display brings
people into the central city, and serves commercial interests and benefits
merchants and their employees, does not, as the dissent points out, determine
the character of the display. That a prayer invoking Divine guidance in
Congress is preceded and followed by debate and partisan conflict over taxes,
budgets, national defense, and myriad mundane subjects, for example, has
never been thought to demean or taint the sacredness of the invocation.12

43

Of course the creche is identified with one religious faith but no more so than
the examples we have set out from prior cases in which we found no conflict
with the Establishment Clause. See, e.g., McGowan, supra; Marsh, supra. It
would be ironic, however, if the inclusion of a single symbol of a particular
historic religious event, as part of a celebration acknowledged in the Western
World for 20 centuries, and in this country by the people, by the Executive
Branch, by the Congress, and the courts for two centuries, would so "taint" the
City's exhibit as to render it violative of the Establishment Clause. To forbid
the use of this one passive symbolthe crecheat the very time people are

taking note of the season with Christmas hymns and carols in public schools
and other public places, and while the Congress and Legislatures open sessions
with prayers by paid chaplains would be a stilted over-reaction contrary to our
history and to our holdings. If the presence of the creche in this display violates
the Establishment Clause, a host of other forms of taking official note of
Christmas, and of our religious heritage, are equally offensive to the
Constitution.
44

The Court has acknowledged that the "fears and political problems" that gave
rise to the Religion Clauses in the 18th century are of far less concern today.
Everson, supra, 330 U.S., at 8, 67 S.Ct., at 508. We are unable to perceive the
Archbishop of Canterbury, the Vicar of Rome, or other powerful religious
leaders behind every public acknowledgment of the religious heritage long
officially recognized by the three constitutional branches of government. Any
notion that these symbols pose a real danger of establishment of a state church
is far-fetched indeed.

V
45

That this Court has been alert to the constitutionally expressed opposition to the
establishment of religion is shown in numerous holdings striking down statutes
or programs as violative of the Establishment Clause. See, e.g., McCollum v.
Board of Education, supra; Epperson v. Arkansas, supra; Lemon, supra; Levitt
v. Committee for Public Education, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d
736 (1973); Nyquist, supra; Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44
L.Ed.2d 217 (1975); and Stone v. Graham, supra. The most recent example of
this careful scrutiny is found in the case invalidating a municipal ordinance
granting to a church a virtual veto power over the licensing of liquor
establishments near the church. Grendel's Den, supra. Taken together these
cases abundantly demonstrate the Court's concern to protect the genuine
objectives of the Establishment Clause. It is far too late in the day to impose a
crabbed reading of the Clause on the country.

VI
46

We hold that, notwithstanding the religious significance of the creche, the City
of Pawtucket has not violated the Establishment Clause of the First
Amendment.13 Accordingly, the judgment of the Court of Appeals is reversed.

47

It is so ordered.

48

Justice O'CONNOR, concurring.

49

I concur in the opinion of the Court. I write separately to suggest a clarification

of our Establishment Clause doctrine. The suggested approach leads to the
same result in this case as that taken by the Court, and the Court's opinion, as I
read it, is consistent with my analysis.

50

* The Establishment Clause prohibits government from making adherence to a

religion relevant in any way to a person's standing in the political community.
Government can run afoul of that prohibition in two principal ways. One is
excessive entanglement with religious institutions, which may interfere with the
independence of the institutions, give the institutions access to government or
governmental powers not fully shared by nonadherents of the religion, and
foster the creation of political constituencies defined along religious lines. E.g.,
Larkin v. Grendel's Den, 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982).
The second and more direct infringement is government endorsement or
disapproval of religion. Endorsement sends a message to nonadherents that they
are outsiders, not full members of the political community, and an
accompanying message to adherents that they are insiders, favored members of
the political community. Disapproval sends the opposite message. See
generally Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10
L.Ed.2d 844 (1963).

51

Our prior cases have used the three-part test articulated in Lemon v. Kurtzman,
403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1970), as a guide
to detecting these two forms of unconstitutional government action.1 It has
never been entirely clear, however, how the three parts of the test relate to the
principles enshrined in the Establishment Clause. Focusing on institutional
entanglement and on endorsement or disapproval of religion clarifies the
Lemon test as an analytical device.

II
52

In this case, as even the District Court found, there is no institutional

entanglement. Nevertheless, the appellees contend that the political
divisiveness caused by Pawtucket's display of its creche violates the excessiveentanglement prong of the Lemon test. The Court's opinion follows the
suggestion in Mueller v. Allen, 463 U.S. ----, ----, n. 11, 103 S.Ct. 3062, 3071 n.
11, 77 L.Ed.2d 721 (1983), and concludes that "no inquiry into potential
political divisiveness is even called for" in this case. Ante, at 684. In my view,
political divisiveness along religious lines should not be an independent test of
constitutionality.

53

Although several of our cases have discussed political divisiveness under the

entanglement prong of Lemon, see, e.g., Committee for Public Education v.

Nyquist, 413 U.S. 756, 796, 93 S.Ct. 2955, 2977, 37 L.Ed.2d 948 (1973);
Lemon v. Kurtzman, supra, 403 U.S., at 623, 91 S.Ct., at 2116, we have never
relied on divisiveness as an independent ground for holding a government
practice unconstitutional. Guessing the potential for political divisiveness
inherent in a government practice is simply too speculative an enterprise, in part
because the existence of the litigation, as this case illustrates, itself may affect
the political response to the government practice. Political divisiveness is
admittedly an evil addressed by the Establishment Clause. Its existence may be
evidence that institutional entanglement is excessive or that a government
practice is perceived as an endorsement of religion. But the constitutional
inquiry should focus ultimately on the character of the government activity that
might cause such divisiveness, not on the divisiveness itself. The entanglement
prong of the Lemon test is properly limited to institutional entanglement.
III
54

The central issue in this case is whether Pawtucket has endorsed Christianity by
its display of the creche. To answer that question, we must examine both what
Pawtucket intended to communicate in displaying the creche and what message
the City's display actually conveyed. The purpose and effect prongs of the
Lemon test represent these two aspects of the meaning of the City's action.

55

The meaning of a statement to its audience depends both on the intention of the
speaker and on the "objective" meaning of the statement in the community.
Some listeners need not rely solely on the words themselves in discerning the
speaker's intent: they can judge the intent by, for example, examining the
context of the statement or asking questions of the speaker. Other listeners do
not have or will not seek access to such evidence of intent. They will rely
instead on the words themselves; for them the message actually conveyed may
be something not actually intended. If the audience is large, as it always is
when government "speaks" by word or deed, some portion of the audience will
inevitably receive a message determined by the "objective" content of the
statement, and some portion will inevitably receive the intended message.
Examination of both the subjective and the objective components of the
message communicated by a government action is therefore necessary to
determine whether the action carries a forbidden meaning.

56

The purpose prong of the Lemon test asks whether government's actual purpose
is to endorse or disapprove of religion. The effect prong asks whether,
irrespective of government's actual purpose, the practice under review in fact
conveys a message of endorsement or disapproval. An affirmative answer to

either question should render the challenged practice invalid.

A.
57

The purpose prong of the Lemon test requires that a government activity have a
secular purpose. That requirement is not satisfied, however, by the mere
existence of some secular purpose, however dominated by religious purposes.
In Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980), for
example, the Court held that posting copies of the Ten Commandments in
schools violated the purpose prong of the Lemon test, yet the State plainly had
some secular objectives, such as instilling most of the values of the Ten
Commandments and illustrating their connection to our legal system, but see id.,
at 41, 101 S.Ct., at 193. See also Abington School District v. Schempp, supra,
374 U.S., at 223-224, 83 S.Ct., at 1572. The proper inquiry under the purpose
prong of Lemon, I submit, is whether the government intends to convey a
message of endorsement or disapproval of religion.

58

Applying that formulation to this case, I would find that Pawtucket did not
intend to convey any message of endorsement of Christianity or disapproval of
nonChristian religions. The evident purpose of including the creche in the
larger display was not promotion of the religious content of the creche but
celebration of the public holiday through its traditional symbols. Celebration of
public holidays, which have cultural significance even if they also have
religious aspects, is a legitimate secular purpose.

59

The District Court's finding that the display of the creche had no secular
purpose was based on erroneous reasoning. The District Court believed that it
should ascertain the City's purpose in displaying the creche separate and apart
from the general purpose in setting up the display. It also found that, because
the tradition-celebrating purpose was suspect in the court's eyes, the City's use
of an unarguably religious symbol "raises an inference" of intent to endorse.
When viewed in light of correct legal principles, the District Court's finding of
unlawful purpose was clearly erroneous.

B
60

Focusing on the evil of government endorsement or disapproval of religion

makes clear that the effect prong of the Lemon test is properly interpreted not to
require invalidation of a government practice merely because it in fact causes,
even as a primary effect, advancement or inhibition of religion. The laws
upheld in Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d
697 (1970) (tax exemption for religious, educational, and charitable

organizations), in McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6

L.Ed.2d 393 (1960) (mandatory Sunday closing law), and in Zorach v. Clauson,
343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952) (released time from school for
off-campus religious instruction), had such effects, but they did not violate the
Establishment Clause. What is crucial is that a government practice not have
the effect of communicating a message of government endorsement or
disapproval of religion. It is only practices having that effect, whether
intentionally or unintentionally, that make religion relevant, in reality or public
perception, to status in the political community.
61

Pawtucket's display of its creche, I believe, does not communicate a message

that the government intends to endorse the Christian beliefs represented by the
creche. Although the religious and indeed sectarian significance of the creche,
as the district court found, is not neutralized by the setting, the overall holiday
setting changes what viewers may fairly understand to be the purpose of the
displayas a typical museum setting, though not neutralizing the religious
content of a religious painting, negates any message of endorsement of that
content. The display celebrates a public holiday, and no one contends that
declaration of that holiday is understood to be an endorsement of religion. The
holiday itself has very strong secular components and traditions. Government
celebration of the holiday, which is extremely common, generally is not
understood to endorse the religious content of the holiday, just as government
celebration of Thanksgiving is not so understood. The creche is a traditional
symbol of the holiday that is very commonly displayed along with purely
secular symbols, as it was in Pawtucket.

62

These features combine to make the government's display of the creche in this
particular physical setting no more an endorsement of religion than such
governmental "acknowledgments" of religion as legislative prayers of the type
approved in Marsh v. Chambers, 463 U.S. ----, 103 S.Ct. 3330, 77 L.Ed.2d
1019 (1983), government declaration of Thanksgiving as a public holiday,
printing of "In God We Trust" on coins, and opening court sessions with "God
save the United States and this honorable court." Those government
acknowledgments of religion serve, in the only ways reasonably possible in our
culture, the legitimate secular purposes of solemnizing public occasions,
expressing confidence in the future, and encouraging the recognition of what is
worthy of appreciation in society. For that reason, and because of their history
and ubiquity, those practices are not understood as conveying government
approval of particular religious beliefs. The display of the creche likewise
serves a secular purposecelebration of a public holiday with traditional
symbols. It cannot fairly be understood to convey a message of government
endorsement of religion. It is significant in this regard that the creche display

apparently caused no political divisiveness prior to the filing of this lawsuit,

although Pawtucket had incorporated the creche in its annual Christmas display
for some years. For these reasons, I conclude that Pawtucket's display of the
creche does not have the effect of communicating endorsement of Christianity.
63

The District Court's subsidiary findings on the effect test are consistent with
this conclusion. The court found as facts that the creche has a religious content,
that it would not be seen as an insignificant part of the display, that its religious
content is not neutralized by the setting, that the display is celebratory and not
instructional, and that the city did not seek to counteract any possible religious
message. These findings do not imply that the creche communicates
government approval of Christianity. The District Court also found, however,
that the government was understood to place its imprimatur on the religious
content of the creche. But whether a government activity communicates
endorsement of religion is not a question of simple historical fact. Although
evidentiary submissions may help answer it, the question is, like the question
whether racial or sex-based classifications communicate an invidious message,
in large part a legal question to be answered on the basis of judicial
interpretation of social facts. The District Court's conclusion concerning the
effect of Pawtucket's display of its creche was in error as a matter of law.

IV
64

Every government practice must be judged in its unique circumstances to

determine whether it constitutes an endorsement or disapproval of religion. In
making that determination, courts must keep in mind both the fundamental
place held by the Establishment Clause in our constitutional scheme and the
myriad, subtle ways in which Establishment Clause values can be eroded.
Government practices that purport to celebrate or acknowledge events with
religious significance must be subjected to careful judicial scrutiny.

65

The city of Pawtucket is alleged to have violated the Establishment Clause by

endorsing the Christian beliefs represented by the creche included in its
Christmas display. Giving the challenged practice the careful scrutiny it
deserves, I cannot say that the particular creche display at issue in this case was
intended to endorse or had the effect of endorsing Christianity. I agree with the
Court that the judgment below must be reversed.

66

Justice BRENNAN, with whom Justice MARSHALL, Justice BLACKMUN

and Justice STEVENS join, dissenting.

67

The principles announced in the compact phrases of the Religion Clauses have,

67

The principles announced in the compact phrases of the Religion Clauses have,
as the Court today reminds us, ante, at 678-679, proven difficult to apply.
Faced with that uncertainty, the Court properly looks for guidance to the settled
test announced in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d
745 (1971), for assessing whether a challenged governmental practice involves
an impermissible step toward the establishment of religion. Ante, at 679.
Applying that test to this case, the Court reaches an essentially narrow result
which turns largely upon the particular holiday context in which the City of
Pawtucket's nativity scene appeared. The Court's decision implicitly leaves
open questions concerning the constitutionality of the public display on public
property of a creche standing alone, or the public display of other distinctively
religious symbols such as a cross.1 Despite the narrow contours of the Court's
opinion, our precedents in my view compel the holding that Pawtucket's
inclusion of a life-sized display depicting the biblical description of the birth of
Christ as part of its annual Christmas celebration is unconstitutional. Nothing in
the history of such practices or the setting in which the City's creche is
presented obscures or diminishes the plain fact that Pawtucket's action amounts
to an impermissible governmental endorsement of a particular faith.

68

* Last Term, I expressed the hope that the Court's decision in Marsh v.
Chambers, --- U.S. ----, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), would prove
to be only a single, aberrant departure from our settled method of analyzing
Establishment Clause cases. Id., at ----, 103 S.Ct., at 3337 (BRENNAN, J.,
dissenting). That the Court today returns to the settled analysis of our prior
cases gratifies that hope. At the same time, the Court's less than vigorous
application of the Lemon test suggests that its commitment to those standards
may only be superficial. 2 After reviewing the Court's opinion, I am convinced
that this case appears hard not because the principles of decision are obscure,
but because the Christmas holiday seems so familiar and agreeable. Although
the Court's reluctance to disturb a community's chosen method of celebrating
such an agreeable holiday is understandable, that cannot justify the Court's
departure from controlling precedent. In my view, Pawtucket's maintenance and
display at public expense of a symbol as distinctively sectarian as a creche
simply cannot be squared with our prior cases. And it is plainly contrary to the
purposes and values of the Establishment Clause to pretend, as the Court does,
that the otherwise secular setting of Pawtucket's nativity scene dilutes in some
fashion the creche's singular religiosity, or that the City's annual display
reflects nothing more than an "acknowledgment" of our shared national
heritage. Neither the character of the Christmas holiday itself, nor our heritage
of religious expression supports this result. Indeed, our remarkable and precious
religious diversity as a nation, see Torcaso v. Watkins, 367 U.S. 488, 495, 81
S.Ct. 1680, 1683, 6 L.Ed.2d 982 (1961); Abington School Dist. v. Schempp,
374 U.S. 203, 240-241, 83 S.Ct. 1560, 1581, 10 L.Ed.2d 844 (1963)

(BRENNAN, J., concurring), which the Establishment Clause seeks to protect,

runs directly counter to today's decision.
69

As we have sought to meet new problems arising under the Establishment

Clause, our decisions, with few exceptions, have demanded that a challenged
governmental practice satisfy the following criteria:

70

"First, the [practice] must have a secular legislative purpose; second, its
principal or primary effect must be one that neither advances nor inhibits
religion; finally, [it] must not foster 'an excessive government entanglement
with religion.' " Lemon v. Kurtzman, supra, 403 U.S., at 612-613, 91 S.Ct., at
2111 (citations omitted).3

71

This well-defined three-part test expresses the essential concerns animating the
Establishment Clause. Thus, the test is designed to ensure that the organs of
government remain strictly separate and apart from religious affairs, for "a
union of government and religion tends to destroy government and degrade
religion." Engel v. Vitale, 370 U.S. 421, 431, 82 S.Ct. 1261, 1267, 8 L.Ed.2d
601 (1962). And it seeks to guarantee that government maintains a position of
neutrality with respect to religion and neither advances nor inhibits the
promulgation and practice of religious beliefs. Everson v. Board of Education,
330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947) ("Neither [a State nor
the Federal Government] can pass laws which aid one religion, aid all religions,
or prefer one religion over another"); Epperson v. Arkansas, 393 U.S. 97, 103104, 89 S.Ct. 266, 269-270, 21 L.Ed.2d 228 (1968); Committee for Public
Education v. Nyquist, 413 U.S. 756, 792-793, 93 S.Ct. 2955, 2975, 37 L.Ed.2d
948 (1973). In this regard, we must be alert in our examination of any
challenged practice not only for an official establishment of religion, but also
for those other evils at which the Clause was aimed"sponsorship, financial
support, and active involvement of the sovereign in religious activity."
Committee for Public Education v. Nyquist, supra, at 772, 93 S.Ct., at 2965
(quoting Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25
L.Ed.2d 697 (1970)).

72

Applying the three-part test to Pawtucket's creche, I am persuaded that the

City's inclusion of the creche in its Christmas display simply does not reflect a
"clearly secular purpose." Nyquist, supra, 413 U.S., at 773, 93 S.Ct., at 2965.
Unlike the typical case in which the record reveals some contemporaneous
expression of a clear purpose to advance religion, see, e.g., Epperson v.
Arkansas, supra, 393 U.S., at 107-109, 89 S.Ct., at 272-273; Engel v. Vitale,
supra, 370 U.S., at 423, 82 S.Ct., at 1263, or, conversely, a clear secular
purpose, see, e.g., Lemon v. Kurtzman, supra, 403 U.S., at 613, 91 S.Ct., at

2111; Wolman v. Walter, 433 U.S. 229, 236, 97 S.Ct. 2593, 2599, 53 L.Ed.2d
714 (1977), here we have no explicit statement of purpose by Pawtucket's
municipal government accompanying its decision to purchase, display and
maintain the creche. Governmental purpose may nevertheless be inferred. For
instance, in Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 193, 66 L.Ed.2d
199 (1980) (per curiam), this Court found, despite the state's avowed purpose
of reminding schoolchildren of the secular application of the commands of the
Decalogue, that the "pre-eminent purpose for posting the Ten Commandments
on schoolroom walls is plainly religious in nature." In the present case, the City
claims that its purposes were exclusively secular. Pawtucket sought, according
to this view, only to participate in the celebration of a national holiday and to
attract people to the downtown area in order to promote pre-Christmas retail
sales and to help engender the spirit of goodwill and neighborliness commonly
associated with the Christmas season. Brief for Petitioners 29.
73

Despite these assertions, two compelling aspects of this case indicate that our
generally prudent "reluctance to attribute unconstitutional motives" to a
governmental body, Mueller v. Allen, --- U.S. ----, ----, 103 S.Ct. 3062, 3066, 77
L.Ed.2d 721 (1983), should be overcome. First, as was true in Larkin v.
Grendel's Den, Inc., --- U.S. ----, ----, 103 S.Ct. 505, 510, 74 L.Ed.2d 297
(1982), all of Pawtucket's "valid secular objectives can be readily accomplished
by other means."4 Plainly, the City's interest in celebrating the holiday and in
promoting both retail sales and goodwill are fully served by the elaborate
display of Santa Claus, reindeer, and wishing wells that are already a part of
Pawtucket's annual Christmas display.5 More importantly, the nativity scene,
unlike every other element of the Hodgson Park display, reflects a sectarian
exclusivity that the avowed purposes of celebrating the holiday season and
promoting retail commerce simply do not encompass. To be found
constitutional, Pawtucket's seasonal celebration must at least be nondenominational and not serve to promote religion. The inclusion of a
distinctively religious element like the creche, however, demonstrates that a
narrower sectarian purpose lay behind the decision to include a nativity scene.
That the creche retained this religious character for the people and municipal
government of Pawtucket is suggested by the Mayor's testimony at trial in
which he stated that for him, as well as others in the City, the effort to eliminate
the nativity scene from Pawtucket's Christmas celebration "is a step towards
establishing another religion, non-religion that it may be." (J.A. 100). 6 Plainly,
the City and its leaders understood that the inclusion of the creche in its display
would serve the wholly religious purpose of "keep[ing] 'Christ in Christmas.' "
525 F.Supp., at 1173. From this record, therefore, it is impossible to say with
the kind of confidence that was possible in McGowan v. Maryland, 366 U.S.
420, 445, 81 S.Ct. 1101, 1115, 6 L.Ed.2d 393 (1961), that a wholly secular goal

predominates.
74

The "primary effect" of including a nativity scene in the City's display is, as the
District Court found, to place the government's imprimatur of approval on the
particular religious beliefs exemplified by the creche. Those who believe in the
message of the nativity receive the unique and exclusive benefit of public
recognition and approval of their views. For many, the City's decision to
include the creche as part of its extensive and costly efforts to celebrate
Christmas can only mean that the prestige of the government has been
conferred on the beliefs associated with the creche, thereby providing "a
significant symbolic benefit to religion. . . ." Larkin v. Grendel's Den, Inc.,
supra, --- U.S., at ----, 103 S.Ct., at 511. The effect on minority religious
groups, as well as on those who may reject all religion, is to convey the
message that their views are not similarly worthy of public recognition nor
entitled to public support.7 It was precisely this sort of religious chauvinism
that the Establishment Clause was intended forever to prohibit. In this case, as
in Engel v. Vitale, "[w]hen the power, prestige and financial support of
government is placed behind a particular religious belief, the indirect coercive
pressure upon religious minorities to conform to the prevailing officially
approved religion is plain." 370 U.S., at 431, 82 S.Ct., at 1267. Our decision in
Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), rests
upon the same principle. There the Court noted that a state university policy of
"equal access" for both secular and religious groups would "not confer any
imprimatur of State approval" on the religious groups permitted to use the
facilities because "a broad spectrum of groups" would be served and there was
no evidence that religious groups would dominate the forum. Id., at 274, 102
S.Ct., at 277. Here, by contrast, Pawtucket itself owns the creche and instead of
extending similar attention to a "broad spectrum" of religious and secular
groups, it has singled out Christianity for special treatment.

75

Finally, it is evident that Pawtucket's inclusion of a creche as part of its annual

Christmas display does pose a significant threat of fostering "excessive
entanglement." As the Court notes, ante, at 683, the District Court found no
administrative entanglement in this case, primarily because the City had been
able to administer the annual display without extensive consultation with
religious officials. See 525 F.Supp., at 1179. Of course, there is no reason to
disturb that finding, but it is worth noting that after today's decision,
administrative entanglements may well develop. Jews and other non-Christian
groups, prompted perhaps by the Mayor's remark that he will include a
Menorah in future displays,8 can be expected to press government for inclusion
of their symbols, and faced with such requests, government will have to become
involved in accommodating the various demands. Cf. Committee for Public

Education v. Nyquist, supra, 413 U.S., at 798, 93 S.Ct., at 2978 ("competing

efforts [by religious groups] to gain and maintain the support of government"
may "occasion[ ] considerable civil strife"). More importantly, although no
political divisiveness was apparent in Pawtucket prior to the filing of
respondents' lawsuit, that act, as the District Court found, unleashed powerful
emotional reactions which divided the City along religious lines. 525 F.Supp.,
at 1180. The fact that calm had prevailed prior to this suit does not immediately
suggest the absence of any division on the point for, as the District Court
observed, the quiescence of those opposed to the creche may have reflected
nothing more than their sense of futility in opposing the majority. Id., at 1179.
Of course, the Court is correct to note that we have never held that the potential
for divisiveness alone is sufficient to invalidate a challenged governmental
practice; we have, nevertheless, repeatedly emphasized that "too close a
proximity" between religious and civil authorities, Schempp, supra, 374 U.S., at
259, 83 S.Ct., at 1591 (BRENNAN, J., concurring), may represent a "warning
signal" that the values embodied in the Establishment Clause are at risk.
Committee for Public Education v. Nyquist, supra, 413 U.S., at 798, 93 S.Ct., at
2978.9 Furthermore, the Court should not blind itself to the fact that because
communities differ in religious composition, the controversy over whether
local governments may adopt religious symbols will continue to fester. In many
communities, non-Christian groups can be expected to combat practices similar
to Pawtucket's; this will be so especially in areas where there are substantial
non-Christian minorities.10
76

In sum, considering the District Court's careful findings of fact under the threepart analysis called for by our prior cases, I have no difficulty concluding that
Pawtucket's display of the creche is unconstitutional.11

B
77

The Court advances two principal arguments to support its conclusion that the
Pawtucket creche satisfies the Lemon test. Neither is persuasive.

78

First. The Court, by focusing on the holiday "context" in which the nativity
scene appeared, seeks to explain away the clear religious import of the creche
and the findings of the District Court that most observers understood the creche
as both a symbol of Christian beliefs and a symbol of the City's support for
those beliefs. See ante, at 679-684; see also ante, at 694 (O'CONNOR, J.,
concurring). Thus, although the Court concedes that the City's inclusion of the
nativity scene plainly serves "to depict the origins" of Christmas as a
"significant historical religious event," ante, at 681, 680, and that the creche "is
identified with one religious faith," ante, at 685, we are nevertheless expected

to believe that Pawtucket's use of the creche does not signal the City's support
for the sectarian symbolism that the nativity scene evokes. The effect of the
creche, of course, must be gauged not only by its inherent religious significance
but also by the overall setting in which it appears. But it blinks reality to claim,
as the Court does, that by including such a distinctively religious object as the
creche in its Christmas display, Pawtucket has done no more than make use of a
"traditional" symbol of the holiday, and has thereby purged the creche of its
religious content and conferred only an "incidental and indirect" benefit on
religion.
79

The Court's struggle to ignore the clear religious effect of the creche seems to
me misguided for several reasons. In the first place, the City has positioned the
creche in a central and highly visible location within the Hodgson Park display.
The District Court's findings in this regard are unambiguous:

80

"[D]espite the small amount of ground covered by the creche, viewers would
not regard the creche as an insignificant part of the display. It is an almost life
sized tableau marked off by a white picket fence. Furthermore, its location
lends the creche significance. The creche faces the Roosevelt Avenue bus stops
and access stairs where the bulk of the display is placed. Moreover, the creche
is near two of the most enticing parts of the display for childrenSanta's house
and the talking wishing well. Although the Court recognizes that one cannot see
the creche from all possible vantage points, it is clear from the City's own
photos that people standing at the two bus shelters and looking down at the
display will see the creche centrally and prominently positioned." 525 F.Supp.,
at 1176-1177 (citations omitted).

81

Moreover, the City has done nothing to disclaim government approval of the
religious significance of the creche, to suggest that the creche represents only
one religious symbol among many others that might be included in a seasonal
display truly aimed at providing a wide catalogue of ethnic and religious
celebrations, or to disassociate itself from the religious content of the creche. In
Abington School Dist. v. Schempp, supra, 374 U.S., at 225, 83 S.Ct., at 1573,
we noted that reading aloud from the Bible would be a permissible schoolroom
exercise only if it was "presented objectively as part of a secular program of
education" that would remove any message of governmental endorsement of
religion. Similarly, when the Court of Appeals for the District of Columbia
approved the inclusion of a creche as part of a national "Pageant of Peace" on
federal parkland adjacent to the White House, it did so on the express condition
that the government would erect "explanatory plaques" disclaiming any
sponsorship of religious beliefs associated with the creche. Allen v. Morton,
495 F.2d 65, 67-68 (CADC 1973) (per curiam ). In this case, by contrast,

Pawtucket has made no effort whatever to provide a similar cautionary

message.
82

Third, we have consistently acknowledged that an otherwise secular setting

alone does not suffice to justify a governmental practice that has the effect of
aiding religion. In Hunt v. McNair, 413 U.S. 734, 743, 93 S.Ct. 2868, 2874, 37
L.Ed.2d 923 (1973), for instance, we observed that "aid may normally be
thought to have a primary effect of advancing religion . . . when it [supports] a
specifically religious activity in an otherwise secular setting." The
demonstrably secular context of public education, therefore, did not save the
challenged practice of school prayer in Engel or in Schempp. Similarly, in
Tilton v. Richardson, 403 U.S. 672, 683, 91 S.Ct. 2091, 2098, 29 L.Ed.2d 790
(1971), despite the generally secular thrust of the financing legislation under
review, the Court unanimously struck down that aspect of the program which
permitted church-related institutions eventually to assume total control over the
use of buildings constructed with federal aid.12

83

Finally, and most importantly, even in the context of Pawtucket's seasonal

celebration, the creche retains a specifically Christian religious meaning. I
refuse to accept the notion implicit in today's decision that non-Christians
would find that the religious content of the creche is eliminated by the fact that
it appears as part of the City's otherwise secular celebration of the Christmas
holiday. The nativity scene is clearly distinct in its purpose and effect from the
rest of the Hodgson Park display for the simple reason that it is the only one
rooted in a biblical account of Christ's birth. It is the chief symbol of the
characteristically Christian belief that a divine Savior was brought into the
world and that the purpose of this miraculous birth was to illuminate a path
toward salvation and redemption.13 For Christians, that path is exclusive,
precious and holy. But for those who do not share these beliefs, the symbolic
re-enactment of the birth of a divine being who has been miraculously
incarnated as a man stands as a dramatic reminder of their differences with
Christian faith.14 When government appears to sponsor such religiously
inspired views, we cannot say that the practice is " 'so separate and so
indisputably marked off from the religious function,' that [it] may fairly be
viewed as reflect[ing] a neutral posture toward religious institutions." Nyquist,
supra, 413 U.S., at 782, 93 S.Ct., at 2970 (quotingEverson, supra, 330 U.S., at
18, 67 S.Ct., at 513). To be so excluded on religious grounds by one's elected
government is an insult and an injury that, until today, could not be
countenanced by the Establishment Clause.

84

Second. The Court also attempts to justify the creche by entertaining a

beguilingly simple, yet faulty syllogism. The Court begins by noting that

government may recognize Christmas day as a public holiday; the Court then
asserts that the creche is nothing more than a traditional element of Christmas
celebrations; and it concludes that the inclusion of a creche as part of a
government's annual Christmas celebration is constitutionally permissible. See
ante, at 680-683, 685-686; see also ante, at 692-694 (O'CONNOR, J.,
concurring). The Court apparently believes that once it finds that the
designation of Christmas as a public holiday is constitutionally acceptable, it is
then free to conclude that virtually every form of governmental association with
the celebration of the holiday is also constitutional. The vice of this
dangerously superficial argument is that it overlooks the fact that the Christmas
holiday in our national culture contains both secular and sectarian elements.15
To say that government may recognize the holiday's traditional, secular
elements of giftgiving, public festivities and community spirit, does not mean
that government may indiscriminately embrace the distinctively sectarian
aspects of the holiday. Indeed, in its eagerness to approve the creche, the Court
has advanced a rationale so simplistic that it would appear to allow the Mayor
of Pawtucket to participate in the celebration of a Christmas mass, since this
would be just another unobjectionable way for the City to "celebrate the
holiday." As is demonstrated below, the Court's logic is fundamentally flawed
both because it obscures the reason why public designation of Christmas day as
a holiday is constitutionally acceptable, and blurs the distinction between the
secular aspects of Christmas and its distinctively religious character, as
exemplified by the creche.
85

When government decides to recognize Christmas day as a public holiday, it

does no more than accommodate the calendar of public activities to the plain
fact that many Americans will expect on that day to spend time visiting with
their families, attending religious services, and perhaps enjoying some respite
from pre-holiday activities. The Free Exercise Clause, of course, does not
necessarily compel the government to provide this accommodation, but neither
is the Establishment Clause offended by such a step. Cf. Zorach v. Clauson,
343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952). Because it is clear that the
celebration of Christmas has both secular and sectarian elements, it may well be
that by taking note of the holiday, the government is simply seeking to serve
the same kinds of wholly secular goalsfor instance, promoting goodwill and
a common day of restthat were found to justify Sunday Closing laws in
McGowan.16 If public officials go further and participate in the secular
celebration of Christmasby, for example, decorating public places with such
secular images as wreaths, garlands or Santa Claus figuresthey move closer
to the limits of their constitutional power but nevertheless remain within the
boundaries set by the Establishment Clause. But when those officials
participate in or appear to endorse the distinctively religious elements of this

otherwise secular event, they encroach upon First Amendment freedoms. For it
is at that point that the government brings to the forefront the theological
content of the holiday, and places the prestige, power and financial support of a
civil authority in the service of a particular faith.
86

The inclusion of a creche in Pawtucket's otherwise secular celebration of

Christmas clearly violates these principles. Unlike such secular figures as Santa
Claus, reindeer and carolers, a nativity scene represents far more than a mere
"traditional" symbol of Christmas. The essence of the creche's symbolic
purpose and effect is to prompt the observer to experience a sense of simple
awe and wonder appropriate to the contemplation of one of the central elements
of Christian dogmathat God sent His son into the world to be a Messiah.17
Contrary to the Court's suggestion, the creche is far from a mere representation
of a "particular historic religious event." Ante, at 686. It is, instead, best
understood as a mystical re-creation of an event that lies at the heart of
Christian faith.18 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,19 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."20

87

For these reasons, the creche in this context simply cannot be viewed as playing
the same role that an ordinary museum display does. See ante, at 676-677, 683,
685. The Court seems to assume that forbidding Pawtucket from displaying a
creche would be tantamount to forbidding a state college from including the
Bible or Milton's Paradise Lost in a course on English literature. But in those
cases the religiously-inspired materials are being considered solely as
literature. The purpose is plainly not to single out the particular religious beliefs
that may have inspired the authors, but to see in these writings the outlines of a
larger imaginative universe shared with other forms of literary expression.21
The same may be said of a course devoted to the study of art; when the course
turns to Gothic architecture, the emphasis is not on the religious beliefs which
the cathedrals exalt, but rather upon the "aesthetic consequences of [such
religious] thought."22

88

In this case, by contrast, the creche plays no comparable secular role. Unlike
the poetry of Paradise Lost which students in a literature course will seek to
appreciate primarily for aesthetic or historical reasons, the angels, shepherds,
Magi and infant of Pawtucket's nativity scene can only be viewed as symbols of
a particular set of religious beliefs. It would be another matter if the creche
were displayed in a museum setting, in the company of other religiously-

inspired artifacts, as an example, among many, of the symbolic representation

of religious myths. In that setting, we would have objective guarantees that the
creche could not suggest that a particular faith had been singled out for public
favor and recognition. The effect of Pawtucket's creche, however, is not
confined by any of these limiting attributes. In the absence of any other
religious symbols or of any neutral disclaimer, the inescapable effect of the
creche will be to remind the average observer of the religious roots of the
celebration he is witnessing and to call to mind the scriptural message that the
nativity symbolizes. The fact that Pawtucket has gone to the trouble of making
such an elaborate public celebration and of including a creche in that otherwise
secular setting inevitably serves to reinforce the sense that the City means to
express solidarity with the Christian message of the creche and to dismiss other
faiths as unworthy of similar attention and support.
II
89

Although the Court's relaxed application of the Lemon test to Pawtucket's

creche is regrettable, it is at least understandable and properly limited to the
particular facts of this case. The Court's opinion, however, also sounds a
broader and more troubling theme. Invoking the celebration of Thanksgiving as
a public holiday, the legend "In God We Trust" on our coins, and the
proclamation "God save the United States and this Honorable Court" at the
opening of judicial sessions, the Court asserts, without explanation, that
Pawtucket's inclusion of a creche in its annual Christmas display poses no more
of a threat to Establishment Clause values than these other official
"acknowledgments" of religion. Ante, at 674-678, 685-686; see also ante, at
692-693 (O'CONNOR, J., concurring).

90

Intuition tells us that some official "acknowledgment" is inevitable in a

religious society if government is not to adopt a stilted indifference to the
religious life of the people. See Illinois ex rel. McCollum v. Board of
Education, 333 U.S. 203, 232, 68 S.Ct. 461, 475, 92 L.Ed. 649 (1948)
(Jackson, J., concurring). It is equally true, however, that if government is to
remain scrupulously neutral in matters of religious conscience, as our
Constitution requires, then it must avoid those overly broad acknowledgments
of religious practices that may imply governmental favoritism toward one set of
religious beliefs. This does not mean, of course, that public officials may not
take account, when necessary, of the separate existence and significance of the
religious institutions and practices in the society they govern. Should
government choose to incorporate some arguably religious element into its
public ceremonies, that acknowledgment must be impartial; it must not tend to
promote one faith or handicap another; and it should not sponsor religion

generally over non-religion. Thus, in a series of decisions concerned with such

acknowledgments, we have repeatedly held that any active form of public
acknowledgment of religion indicating sponsorship or endorsement is
forbidden. E.g., Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199
(1980) (posting of Ten Commandments in schoolroom); Epperson v. Arkansas,
393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) (prohibition on teaching
principles of Darwinian evolution); Abington School Dist. v. Schempp, 374 U.S.
203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (mandatory Bible-reading at
beginning of school day); Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8
L.Ed.2d 601 (1963) (mandatory reading of state-composed prayer); Illinois ex
rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649
(1948) (use of public-school facilities for religious instruction).
91

Despite this body of case law, the Court has never comprehensively addressed
the extent to which government may acknowledge religion by, for example,
incorporating religious references into public ceremonies and proclamations,
and I do not presume to offer a comprehensive approach. Nevertheless, it
appears from our prior decisions that at least three principles tracing the narrow
channels which government acknowledgments must follow to satisfy the
Establishment Clausemay be identified. First, although the government may
not be compelled to do so by the Free Exercise Clause, it may, consistently with
the Establishment Clause, act to accommodate to some extent the opportunities
of individuals to practice their religion. See Schempp, supra, 374 U.S., at 296299, 83 S.Ct., at 1610-1612 (BRENNAN, J., concurring). That is the essential
meaning, I submit, of this Court's decision in Zorach v. Clauson, 343 U.S. 306,
72 S.Ct. 679, 96 L.Ed. 954 (1952), finding that government does not violate the
Establishment Clause when it simply chooses to "close its doors or suspend its
operations as to those who want to repair to their religious sanctuary for
worship or instruction." Id., at 314, 72 S.Ct., at 684. And for me that principle
would justify government's decision to declare December 25th a public holiday.
See supra, at 710.

92

Second, our cases recognize that while a particular governmental practice may
have derived from religious motivations and retain certain religious
connotations, it is nonetheless permissible for the government to pursue the
practice when it is continued today solely for secular reasons. As this Court
noted with reference to Sunday Closing Laws in McGowan v. Maryland, supra,
the mere fact that a governmental practice coincides to some extent with certain
religious beliefs does not render it unconstitutional. Thanksgiving Day, in my
view, fits easily within this principle, for despite its religious antecedents,23 the
current practice of celebrating Thanksgiving is unquestionably secular and
patriotic. We all may gather with our families on that day to give thanks both

for personal and national good fortune, but we are free, given the secular
character of the holiday, to address that gratitude either to a divine beneficence
or to such mundane sources as good luck or the country's abundant natural
wealth.
93

Finally, we have noted that government cannot be completely prohibited from

recognizing in its public actions the religious beliefs and practices of the
American people as an aspect of our national history and culture. See Engel v.
Vitale, supra, 370 U.S., at 435, n. 21, 82 S.Ct., at 1269, n. 21; Schempp, supra,
374 U.S., at 300-304, 83 S.Ct., at 1612-1615 (BRENNAN, J., concurring).
While I remain uncertain about these questions, I would suggest that such
practices as the designation of "In God We Trust" as our national motto, or the
references to God contained in the Pledge of Allegiance can best be understood,
in Dean Rostow's apt phrase, as a form a "ceremonial deism,"24 protected from
Establishment Clause scrutiny chiefly because they have lost through rote
repetition any significant religious content. See Marsh v. Chambers, supra, --U.S., at ----, 103 S.Ct., at 3346 (BRENNAN, J., dissenting). Moreover, these
references are uniquely suited to serve such wholly secular purposes as
solemnizing public occasions, or inspiring commitment to meet some national
challenge in a manner that simply could not be fully served in our culture if
government were limited to purely non-religious phrases. Cf. Schempp, supra,
374 U.S., at 265, 83 S.Ct., at 1594 (BRENNAN, J., concurring). The practices
by which the government has long acknowledged religion are therefore
probably necessary to serve certain secular functions, and that necessity,
coupled with their long history, gives those practices an essentially secular
meaning.

94

The creche fits none of these categories. Inclusion of the creche is not
necessary to accommodate individual religious expression. This is plainly not a
case in which individual residents of Pawtucket have claimed the right to place
a creche as part of a wholly private display on public land. Cf. Widmar v.
Vincent, supra; McCreary v. Stone, 575 F.Supp. 1112 (1983). Nor is the
inclusion of the creche necessary to serve wholly secular goals; it is clear that
the City's secular purposes of celebrating the Christmas holiday and promoting
retail commerce can be fully served without the creche. Cf. McGowan v.
Maryland, and supra, at 699-700. And the creche, because of its unique
association with Christianity, is clearly more sectarian than those references to
God that we accept in ceremonial phrases or in other contexts that assure
neutrality. The religious works on display at the National Gallery, Presidential
references to God during an Inaugural Address, or the national motto present no
risk of establishing religion. To be sure, our understanding of these expressions
may begin in contemplation of some religious element, but it does not end

there. Their message is dominantly secular. In contrast, the message of the

creche begins and ends with reverence for a particular image of the divine.
95

By insisting that such a distinctively sectarian message is merely an

unobjectionable part of our "religious heritage," see ante, at 676, 685-686, the
Court takes a long step backwards to the days when Justice Brewer could
arrogantly declare for the Court that "this is a Christian nation." Church of Holy
Trinity v. United States, 143 U.S. 457, 471, 12 S.Ct. 511, 516, 36 L.Ed. 226
(1892). Those days, I had thought, were forever put behind us by the Court's
decision in Engel v. Vitale, supra, in which we rejected a similar argument
advanced by the State of New York that its Regent's Prayer was simply an
acceptable part of our "spiritual heritage." Id., 370 U.S., at 425, 82 S.Ct., at
1264.

III
96

The American historical experience concerning the public celebration of

Christmas, if carefully examined, provides no support for the Court's decision.
The opening sections of the Court's opinion, while seeking to rely on historical
evidence, do no more than recognize the obvious: because of the strong
religious currents that run through our history, an inflexible or absolutistic
enforcement of the Establishment Clause would be both imprudent and
impossible. See ante, at 673-678. This observation is at once uncontroversial
and unilluminating. Simply enumerating the various ways in which the Federal
Government has recognized the vital role religion plays in our society does
nothing to help decide the question presented in this case.

97

Indeed, the Court's approach suggests a fundamental misapprehension of the

proper uses of history in constitutional interpretation. Certainly, our decisions
reflect the fact that an awareness of historical practice often can provide a
useful guide in interpreting the abstract language of the Establishment Clause.
See, e.g., Walz v. Tax Commission, supra, 397 U.S., at 676-680, 90 S.Ct., at
1415-1417; McGowan v. Maryland, supra, 366 U.S., at 431-445, 81 S.Ct., at
1108-1115; Engel, supra, 370 U.S., at 425-429, 82 S.Ct., at 1264-1266. But
historical acceptance of a particular practice alone is never sufficient to justify a
challenged governmental action, since, as the Court has rightly observed, "no
one acquires a vested or protected right in violation of the Constitution by long
use, even when that span of time covers our entire national existence and indeed
predates it." Walz, supra, 397 U.S., at 678, 90 S.Ct., at 1416. See also
Committee for Public Education v. Nyquist, supra, 413 U.S., at 792, 93 S.Ct., at
2975. Attention to the details of history should not blind us to the cardinal
purposes of the Establishment Clause, nor limit our central inquiry in these

caseswhether the challenged practices "threaten those consequences which

the Framers deeply feared." Abington School Dist. v. Schempp, supra, 374 U.S.,
at 236, 83 S.Ct., at 1578 (BRENNAN, J., concurring). In recognition of this
fact, the Court has, until today, consistently limited its historical inquiry to the
particular practice under review.
98

In McGowan, for instance, the Court carefully canvassed the entire history of
Sunday Closing laws from the Colonial period up to modern times. On the
basis of this analysis, we concluded that while such laws were rooted in
religious motivations, the current purpose was to serve the wholly secular goal
of providing a uniform day of rest for all citizens. Id., 366 U.S., at 445, 81
S.Ct., at 1115. Our inquiry in Walz was similarly confined to the special history
of the practice under review. There the Court found a pattern of "undeviating
acceptance" over the entire course of the Nation's history of according
property-tax exemptions to religious organizations, a pattern which supported
our finding that the practice did not violate the Religion Clauses. Finally, where
direct inquiry into the Framer's intent reveals that the First Amendment was not
understood to prohibit a particular practice, we have found such an
understanding compelling. Thus, in Marsh v. Chambers, after marshalling the
historical evidence which indicated that the First Congress had authorized the
appointment of paid chaplains for its own proceedings only three days before it
reached agreement on the final wording of the Bill of Rights, the Court
concluded on the basis of this "unique history" that the modern-day practice of
opening legislative sessions with prayer was constitutional. Id., --- U.S., at ----,
103 S.Ct., at 3335.

99

Although invoking these decisions in support of its result, the Court wholly
fails to discuss the history of the public celebration of Christmas or the use of
publicly-displayed nativity scenes. The Court, instead, simply asserts, without
any historical analysis or support whatsoever, that the now familiar celebration
of Christmas springs from an unbroken history of acknowledgement "by the
people, by the Executive Branch, by the Congress, and the courts for two
centuries. . . ." Ante, at 686. The Court's complete failure to offer any
explanation of its assertion is perhaps understandable, however, because the
historical record points in precisely the opposite direction. Two features of this
history are worth noting. First, at the time of the adoption of the Constitution
and the Bill of Rights, there was no settled pattern of celebrating Christmas,
either as a purely religious holiday or as a public event. Second, the historical
evidence, such as it is, offers no uniform pattern of widespread acceptance of
the holiday and indeed suggests that the development of Christmas as a public
holiday is a comparatively recent phenomenon.25

100 The intent of the Framers with respect to the public display of nativity scenes is
virtually impossible to discern primarily because the widespread celebration of
Christmas did not emerge in its present form until well into the nineteenth
century. Carrying a well-defined Puritan hostility to the celebration of Christ's
birth with them to the New World, the founders of the Massachusetts Bay
Colony pursued a vigilant policy of opposition to any public celebration of the
holiday. To the Puritans, the celebration of Christmas represented a "Popish"
practice lacking any foundation in Scripture. This opposition took legal form in
1659 when the Massachusetts Colony made the observance of Christmas day,
"by abstinence from labor, feasting, or any other way," an offense punishable
by fine. Although the Colony eventually repealed this ban in 1681, the Puritan
objection remained firm. 26
101 During the eighteenth century, sectarian division over the celebration of the
holiday continued. As increasing numbers of members of the Anglican and the
Dutch and German Reformed churches arrived, the practice of celebrating
Christmas as a purely religious holiday grew. But denominational differences
continued to dictate differences in attitude toward the holiday. American
Anglicans, who carried with them the Church of England's acceptance of the
holiday, Roman Catholics, and various German groups all made the celebration
of Christmas a vital part of their religious life. By contrast, many
nonconforming Protestant groups, including the Presbyterians,
Congregationalists, Baptists and Methodists, continued to regard the holiday
with suspicion and antagonism well into the nineteenth century.27 This pattern
of sectarian division concerning the holiday suggests that for the Framers of the
Establishment Clause, who were acutely sensitive to such sectarian
controversies, no single view of how government should approach the
celebration of Christmas would be possible.
102 Many of the same religious sects that were devotedly opposed to the celebration
of Christmas on purely religious grounds, were also some of the most vocal and
dedicated foes of established religions in the period just prior to the
Revolutionary War.28 The Puritans, and later the Presbyterians, Baptists and
Methodists, generally associated the celebration of Christmas with the elaborate
and, in their view, sacrilegious celebration of the holiday by the Church of
England, and also with, for them, the more sinister theology of "Popery."29 In
the eyes of these dissenting religious sects, therefore, the groups most closely
associated with established religionthe Churches of England and of Rome
were also most closely linked to the profane practice of publicly celebrating
Christmas. For those who authored the Bill of Rights, it seems reasonable to
suppose that the public celebration of Christmas would have been regarded as
at least a sensitive matter, if not deeply controversial. As we have repeatedly

observed, the Religion Clauses were intended to ensure a benign regime of

competitive disorder among all denominations, so that each sect was free to vie
against the others for the allegiance of its followers without state interference.
See Everson v. Board of Education. The historical record, contrary to the
Court's uninformed assumption, suggests that at the very least conflicting views
toward the celebration of Christmas were an important element of that
competition at the time of the adoption of the Constitution.
Furthermore, unlike the religious tax exemptions upheld in Walz, the public
103 display of nativity scenes as part of governmental celebrations of Christmas
does not come to us supported by an unbroken history of widespread
acceptance. It was not until 1836 that a State first granted legal recognition to
Christmas as a public holiday. This was followed in the period between 1845
and 1865, by twenty-eight jurisdictions which included Christmas day as a legal
holiday.30 Congress did not follow the States' lead until 1870 when it
established December 25th, along with the Fourth of July, New Year's Day, and
Thanksgiving, as a legal holiday in the District of Columbia.31 This pattern of
legal recognition tells us only that public acceptance of the holiday was gradual
and that the practice in stark contrast to the record presented in either Walz or
Marsh did not take on the character of a widely recognized holiday until the
middle of the nineteenth century.
104 The historical evidence with respect to public financing and support for
governmental displays of nativity scenes is even more difficult to gauge. What
is known suggests that German immigrants who settled in Pennsylvania early
in the eighteenth century, presumably drawing upon European traditions, were
probably the first to introduce nativity scenes to the American celebration of
Christmas.32 It also appears likely that this practice expanded as more Roman
Catholic immigrants settled during the nineteenth century. From these modest
beginnings, the familiar creche scene developed and gained wider recognition
by the late nineteenth century.33 It is simply impossible to tell, however,
whether the practice ever gained widespread acceptance, much less official
endorsement, until the twentieth century.
105 In sum, there is no evidence whatsoever that the Framers would have expressly
approved a Federal celebration of the Christmas holiday including public
displays of a nativity scene; accordingly, the Court's repeated invocation of the
decision in Marsh, see ante, at 673-674, 682, 685-686, is not only baffling, it is
utterly irrelevant. Nor is there any suggestion that publicly financed and
supported displays of Christmas creches are supported by a record of
widespread, undeviating acceptance that extends throughout our history.
Therefore, our prior decisions which relied upon concrete, specific historical

evidence to support a particular practice simply have no bearing on the question

presented in this case. Contrary to today's careless decision, those prior cases
have all recognized that the "illumination" provided by history must always be
focused on the particular practice at issue in a given case. Without that guiding
principle and the intellectual discipline it imposes, the Court is at sea, free to
select random elements of America's varied history solely to suit the views of
five Members of this Court.
IV
106 Under our constitutional scheme, the role of safeguarding our "religious
heritage" and of promoting religious beliefs is reserved as the exclusive
prerogative of our nation's churches, religious institutions and spiritual leaders.
Because the Framers of the Establishment Clause understood that "religion is
too personal, too sacred, too holy to permit its 'unhallowed perversion' by civil
[authorities]," Engel v. Vitale, supra, 370 U.S., at 432, 82 S.Ct., at 1267, the
clause demands that government play no role in this effort. The Court today
brushes aside these concerns by insisting that Pawtucket has done nothing more
than include a "traditional" symbol of Christmas in its celebration of this
national holiday, thereby muting the religious content of the creche. Ante, at
685. But the City's action should be recognized for what it is: a coercive,
though perhaps small, step toward establishing the sectarian preferences of the
majority at the expense of the minority, accomplished by placing public
facilities and funds in support of the religious symbolism and theological
tidings that the creche conveys. As Justice Frankfurter, writing in McGowan v.
Maryland, observed, the Establishment Clause "withdr[aws] from the sphere of
legitimate legislative concern and competence a specific, but comprehensive
area of human conduct: man's belief or disbelief in the verity of some
transcendental idea and man's expression in action of that belief or disbelief."
Id., 366 U.S., at 465-466, 81 S.Ct., at 1156-1157 (separate opinion). That the
Constitution sets this realm of thought and feeling apart from the pressures and
antagonisms of government is one of its supreme achievements. Regrettably,
the Court today tarnishes that achievement.
107 I dissent.
108 Justice BLACKMUN, with whom Justice STEVENS joins, dissenting.
109 As Justice BRENNAN points out, the logic of the Court's decision in Lemon v.
Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 2111-2112, 29 L.Ed.2d 745
(1970) (which THE CHIEF JUSTICE would say has been applied by this Court
"often," ante, at 679, but which Justice O'CONNOR acknowledges with the

words, "Our prior cases have used the three-part test articulated in Lemon,"
ante, at 688), compels an affirmance here. If that case and its guidelines mean
anything, the presence of Pawtucket's creche in a municipally sponsored
display must be held to be a violation of the First Amendment.
110 Not only does the Court's resolution of this controversy make light of our
precedents, but also, ironically, the majority does an injustice to the creche and
the message it manifests. While certain persons, including the Mayor of
Pawtucket, undertook a crusade to "keep Christ in Christmas," App. 161, the
Court today has declared that presence virtually irrelevant. The majority urges
that the display, "with or without a creche," "recall[s] the religious nature of the
Holiday," and "engenders a friendly community spirit of good will in keeping
with the season." Ante, at 685. Before the District Court, an expert witness for
the city made a similar, though perhaps more candid, point, stating that
Pawtucket's display invites people "to participate in the Christmas spirit,
brotherhood, peace, and let loose with their money." See 525 F.Supp. 1150,
1161 (R.I.1981). The creche has been relegated to the role of a neutral
harbinger of the holiday season, useful for commercial purposes, but devoid of
any inherent meaning and incapable of enhancing the religious tenor of a
display of which it is an integral part. The city has its victory but it is a Pyrrhic
one indeed.
111 The import of the Court's decision is to encourage use of the creche in a
municipally sponsored display, a setting where Christians feel constrained in
acknowledging its symbolic meaning and non-Christians feel alienated by its
presence. Surely, this is a misuse of a sacred symbol. Because I cannot join the
Court in denying either the force of our precedents or the sacred message that is
at the core of the creche, I dissent and join Justice BRENNAN's opinion.

See Reynolds v. United States, 98 U.S. 145, 164, 25 L.Ed. 244 (1878) (quoting
reply from Thomas Jefferson to an address by a committee of the Danbury
Baptist Association (January 1, 1802)).

The day after the First Amendment was proposed, Congress urged President
Washington to proclaim "a day of public thanksgiving and prayer, to be
observed by acknowledging with grateful hearts, the many and signal favours
of Almighty God." See A. Stokes & L. Pfeffer, Church and State in the United
States 87 (rev. 1st ed. 1964). President Washington proclaimed November 26,
1789, a day of thanksgiving to "offer[ ] our prayers and supplications to the
Great Lord and Ruler of Nations, and beseech Him to pardon our national and
other transgressions. . . ." 1 J. Richardson, A Compilation of the Messages and

Papers of the Presidents 1789-1897 64 (1899).

Presidents Adams and Madison also issued thanksgiving proclamations, as
have almost all our presidents, see 3 A. Stokes, Church and State in the United
States 180-193 (1950), through the incumbent, see Proclamation No. 4883, 46
Fed.Reg. 56,153 (1981).
3

An example is found in President Roosevelt's 1944 Proclamation of

Thanksgiving:
"[I]t is fitting that we give thanks with special fervor to our Heavenly Father for
the mercies we have received individually and as a nation and for the blessings
He has restored, through the victories of our arms and those of our Allies, to
His children in other lands.
*****
To the end that we may bear more earnest witness to our gratitude to Almighty
God, I suggest a nationwide reading of the Holy Scriptures during the period
from Thanksgiving Day to Christmas." Proclamation No. 2629, 9 Fed.Reg.
13,099 (1944).
President Reagan and his immediate predecessors have issued similar
proclamations. See, e.g., Proclamation No. 5098, 48 Fed.Reg. 42,801 (1983);
Proclamation No. 4803, 45 Fed.Reg. 75,633 (1980); Proclamation No. 4333, 39
Fed.Reg. 40,003 (1974); Proclamation No. 4093, 36 Fed.Reg. 21,401 (1971);
Proclamation No. 3752, 31 Fed.Reg. 13,635 (1966); Proclamation No. 3560, 28
Fed.Reg. 11,871 (1963).

The National Gallery regularly exhibits more than 200 similar religious
paintings.

See, e.g., Proclamation No. 5017, 48 Fed.Reg. 4261 (1983); Proclamation No.
4795, 45 Fed.Reg. 62,969 (1980); Proclamation No. 4379, 40 Fed.Reg. 25,429
(1975); Proclamation No. 4087, 36 Fed.Reg. 19,961 (1971); Proclamation No.
3812, 32 Fed.Reg. 14,015 (1967); Proclamation No. 3501, 27 Fed.Reg. 10,147
(1962).

The City contends that the purposes of the display are "exclusively secular."
We hold only that Pawtucket has a secular purpose for its display, which is all
that Lemon requires. Were the test that the government must have "exclusively
secular" objectives, much of the conduct and legislation this Court has
approved in the past would have been invalidated.

Justice BRENNAN argues that the City's objectives could have been achieved
without including the creche in the display, post, at 699. True or not, that is
irrelevant. The question is whether the display of the creche violates the
Establishment Clause.

The Allen Court noted that "[p]erhaps free books make it more likely that some
children choose to attend a sectarian school. . . ." 392 U.S., at 244, 88 S.Ct., at
1926.

In Everson, the Court acknowledged that "[i]t is undoubtedly true that children
are helped to get to church schools," and that "some of the children might not
be sent to the church schools if the parents were compelled to pay their
children's bus fares out of their own pockets . . ." 330 U.S., at 17, 67 S.Ct., at
512.

10

We recognized in Tilton that the construction grants "surely aid[ed]" the

institutions that received them. 403 U.S., at 679, 91 S.Ct., at 2096.

11

"In McGowan v. Maryland . . . Sunday Closing Laws were sustained even

though one of their undeniable effects was to render it somewhat more likely
that citizens would respect religious institutions and even attend religious
services." Nyquist, supra, 413 U.S., at 776, 93 S.Ct., at 2967.

12

Justice BRENNAN states that "by focusing on the holiday 'context' in which
the creche appear[s]," the Court seeks to "explain away the clear religious
import of the creche," post, at 705, and that it has equated the creche with a
Santa's house or a talking wishing well, post, at 711-712. Of course this is not
true.

13

The Court of Appeals viewed Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673,
72 L.Ed.2d 33 (1982), as commanding a "strict scrutiny" due to the City's
ownership of the $200 creche which it considers as a discrimination between
Christian and other religions. It is correct that we require strict scrutiny of a
statute or practice patently discriminatory on its face. But we are unable to see
this display, or any part of it, as explicitly discriminatory in the sense
contemplated in Larson.

The Court wrote in Lemon v. Kurtzman that a statute must pass three tests to
withstand Establishment Clause challenge.
"First, the statute must have a secular legislative purpose; second, its principal
or primary effect must be one that neither advances nor inhibits religion . . .;
finally, the statute must not foster 'an excessive government entanglement with
religion.' " 403 U.S., at 612-613, 91 S.Ct., at 2111 (citations omitted).

Though phrased as a uniformly applicable test for constitutionality, this threepart test "provides 'no more than [a] helpful signpost' in dealing with
Establishment Clause challenges." Mueller v. Allen, 463 U.S. ----, ----, 103
S.Ct. 3062, 3066, 77 L.Ed.2d 721 (1983) (quoting Hunt v. McNair, 413 U.S.
734, 741, 93 S.Ct. 2868, 2873, 37 L.Ed.2d 923 (1973)).
Moreover, the Court has held that a statute or practice that plainly embodies an
intentional discrimination among religions must be closely fitted to a
compelling state purpose in order to survive constitutional challenge. See
Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). As the
Court's opinion observes, ante, at 687, n. 13, this case does not involve such
discrimination. The Larson standard, I believe, may be assimilated to the
Lemon test in the clarified version I propose. Plain intentional discrimination
should give rise to a presumption, which may be overcome by a showing of
compelling purpose and close fit, that the challenged government conduct
constitutes an endorsement of the favored religion or a disapproval of the
disfavored.
1

For instance, nothing in the Court's opinion suggests that the Court of Appeals
for the Third Circuit erred when it found that a city-financed platform and cross
used by Pope John Paul II to celebrate mass and deliver a sermon during his
1979 visit to Philadelphia was an unconstitutional expenditure of city funds.
Gilfillan v. City of Philadelphia, 637 F.2d 924 (CA3 1980). Nor does the Court
provide any basis for disputing the holding of the Court of Appeals for the
Eleventh Circuit that the erection and maintenance of an illuminated Latin cross
on state park property violates the Establishment Clause. American Civil
Liberties Union of Georgia v. Rabun County Chamber of Commerce, Inc., 698
F.2d 1098 (CA11 1983). See also Fox v. City of Los Angeles, 22 Cal.3d 792,
150 Cal.Rptr. 867, 587 P.2d 663 (1978); Lowe v. City of Eugene, 254 Or. 518,
463 P.2d 360 (1969). And given the Court's focus upon the otherwise secular
setting of the Pawtucket creche, it remains uncertain whether absent such
secular symbols as Santa Claus' house, a talking wishing well, and cut-out
clowns and bears, a similar nativity scene would pass muster under the Court's
standard. Cf. McCreary v. Stone, 575 F.Supp. 1112 (SDNY 1983) (holding that
village did not violate Establishment Clause by refusing to permit a private
group to erect a creche in a public park).

Although I agree with the Court that no single formula can ever fully capture
the analysis that may be necessary to resolve difficult Establishment Clause
problems, see infra, at n. 11, I fail to understand the Court's insistence upon
referring to the settled test set forth in Lemon as simply one path that may be
followed or not at the Court's option. See ante, at 679. The Court's citation of
Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), and

Committee for Public Education v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37
L.Ed.2d 948 (1973), to support this assertion is meaningless because both of
those decisions applied the three-prong Lemon test. Indeed, ever since its initial
formulation, the Lemon test has been consistently looked upon as the
fundamental tool of Establishment Clause analysis. In Nyquist, the Court
described the test in mandatory terms: "Taken together, [our] decisions dictate
that to pass muster under the Establishment Clause the law in question [must
satisfy the three elements of the Lemon test]." 413 U.S., at 772-773, 93 S.Ct., at
2965. And just last Term in Larkin v. Grendel's Den, --- U.S. ----, 103 S.Ct.
505, 74 L.Ed.2d 297 (1982), THE CHIEF JUSTICE, speaking for the Court,
wrote that "[t]his Court has consistently held that a statute must satisfy three
criteria [as set forth in Lemon ] to pass muster under the Establishment Clause."
Id., at ----, 103 S.Ct., at 510. See also Stone v. Graham, 449 U.S. 39, 40-41, 101
S.Ct. 192, 193, 66 L.Ed.2d 199 (1980) (per curiam ); Wolman v. Walter, 433
U.S. 229, 235-236, 97 S.Ct. 2593, 2598-2599, 53 L.Ed.2d 714 (1977). In
addition, the Court's citation of Larson v. Valente, 456 U.S. 228, 102 S.Ct.
1673, 72 L.Ed.2d 33 (1982), also fails to support the Court's assertion. In
Larson, we first reviewed a state law granting a denominational preference
under a "strict scrutiny" analysis, id., at 246-251, 102 S.Ct., at 1684-1686, but
then concluded by finding the statute unconstitutional under the Lemon
analysis as well. Id., at 251-255, 102 S.Ct., at 1686-1688. Thus, despite the
Court's efforts to evade the point, the fact remains that Marsh v. Chambers, --U.S. ----, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), is the only case in which the
Court has not applied either the Lemon or a "strict scrutiny" analysis. I can only
conclude that with today's unsupported assertion, the Court hopes to provide a
belated excuse for the failure in Marsh to address the analysis of the Lemon
test.
3

See Larkin v. Grendel's Den, --- U.S. ----, ----, 103 S.Ct. 505, 510, 74 L.Ed.2d
297 (1982); Widmar v. Vincent, 454 U.S. 263, 271, 102 S.Ct. 269, 275, 70
L.Ed.2d 440 (1981); Wolman v. Walter, 433 U.S. 229, 236, 97 S.Ct. 2593,
2599, 53 L.Ed.2d 714 (1977); Walz v. Tax Commission, 397 U.S. 664, 674, 90
S.Ct. 1409, 1414, 25 L.Ed.2d 697 (1970). As Justice O'CONNOR's concurring
opinion rightly observes, this test provides a helpful analytical tool in
considering the central question posed in this case whether Pawtucket has run
afoul of the Establishment Clause by endorsing religion through its display of
the creche. Ante, at 690.

I find it puzzling, to say the least, that the Court today should find "irrelevant,"
ante, at n. 7, the fact that the City's secular objectives can be readily and fully
accomplished without including the creche, since only last Term in Larkin v.
Grendel's Den, supra, --- U.S., at ----, 103 S.Ct., at 509, the Court relied upon
precisely the same point in striking down a Massachusetts statute which vested

in church governing bodies the power to veto applications for liquor licenses. It
seems the Court is willing to alter its analysis from Term to Term in order to
suit its preferred results.
5

Several representatives of Pawtucket's business community testified that

although the overall Christmas display played an important role in promoting
downtown holiday trade, the display would serve this purpose equally well
even if the creche were removed. (J.A. 133, 135, 139-140). The Mayor also
testified that if the nativity scene had to be eliminated, the City would continue
to erect the annual display without it. (J.A. 115).

The District Court also admitted into evidence, without objection from
petitioners, a considerable amount of correspondence received by Mayor Lynch
in support of maintaining the creche in the City's Christmas display. One such
letter, which appears to be representative of the views of many, congratulates
the Mayor on his efforts "to keep 'Christ' in Christmas. . . ." (J.A. 161). For the
District Court's findings concerning the meaning of these letters, see 525
F.Supp., at 1162 ("Overall the tenor of the correspondence is that the lawsuit
represents an attack on the presence of religion as part of the community's life,
an attempt to deny the majority the ability to express publically its beliefs in a
desired and traditionally accepted way"). Furthermore, as the District Court
found, "the City has accepted and implemented the view of its predominantly
Christian citizens that it is a 'good thing' to have a creche in a Christmas
display, because it is a good thing to keep 'Christ in Christmas.' " 525 F.Supp.,
at 1173.

In this regard, the views expressed by the California Supreme Court in

considering a similar issue are particularly relevant:
"When a city so openly promotes the religious meaning of one religion's
holidays, the benefit reaped by that religion and the disadvantage suffered by
other religions is obvious. Those persons who do not share those holidays are
relegated to the status of outsiders by their own government; those persons who
do observe those holidays can take pleasure in seeing the symbol of their belief
given official sanction and special status." Fox v. City of Los Angeles, 22 Cal.3d
792, 150 Cal.Rptr. 867, 587 P.2d 663, 670 (1978) (striking down as
unconstitutional the erection of an illuminated cross in front of city hall). See
also Lowe v. City of Eugene, 254 Or. 518, 463 P.2d 360, 363 (1969).

See J.A., at 104.

The suggestion in Mueller v. Allen, supra, --- U.S., at ----, n. 11, 103 S.Ct., at
3071, n. 11, relied upon by the Court today, see ante, at 684; ante, at 689
(O'CONNOR, J., concurring), that inquiry into potential political divisiveness is

unnecessary absent direct subsidies to church-sponsored schools or colleges,

derives from a distorted reading of our prior cases. Simply because the Court in
Lemona case involving such subsidies inquired into potential divisiveness
while distinguishing Everson and Allencases not involving such subsidies
does not provide any authority for the proposition that the Court in Lemon
meant to confine the divisiveness inquiry only to cases factually identical to
Lemon itself. Indeed, in Walz, the Court considered the question of divisiveness
in the context of state tax exemptions to all religious institutions. I agree,
however, with Justice O'CONNOR's helpful suggestion that while political
divisiveness is "an evil addressed by the Establishment Clause," the ultimate
inquiry must always focus on "the character of the government activity that
might cause such divisiveness." Ante, at 1367. Having said that, I should also
emphasize that I disagree fundamentally with Justice O'CONNOR's apparent
conclusion that Pawtucket's inclusion of the creche is not the kind of
governmental act that may engender sharp division along religious lines. The
contrary is demonstrated by the history of this case.
10

This and similar issues relating to governmental endorsement of religious

symbols has engendered continuing controversy which has reached the courts
on many occasions. See, e.g., ACLU v. Rabun County, 698 F.2d 1098 (CA11
1983); Florey v. Sioux Falls School Dist., 619 F.2d 1311 (CA8 1980); Allen v.
Morton, 495 F.2d 65 (CADC 1973); Allen v. Hickel, 424 F.2d 944 (CADC
1970); McCreary v. Stone, 575 F.Supp. 1112 (SDNY 1983); Citizens
Concerned for Separation of Church and State v. Denver, 508 F.Supp. 823 (D
Colo.1981); Russell v. Town of Mamaroneck, 440 F.Supp. 607 (SDNY 1977);
Lawrence v. Buchmueller, 40 Misc.2d 300, 243 N.Y.S.2d 87 (Sup.Ct.1963).
Given the narrowness of the Court's decision today, see supra, at 694-695 and
n. 1, the potential for controversy is unlikely to abate.

11

The Court makes only a half-hearted attempt, see ante, at 680-681, 682-683, to
grapple with the fact that Judge Pettine's detailed findings may not be
overturned unless they are shown to be "clearly erroneous." Fed.Rule Civ.Proc.
52(a). See Pullman-Standard v. Swint, 456 U.S. 273, 285-290, 102 S.Ct. 1781,
1788-1791, 72 L.Ed.2d 66 (1982). In my view, petitioners have made no such
showing in this case. Justice O'CONNOR's concurring opinion properly
accords greater respect to the District Court's findings, but I am at a loss to
understand how the court's specific and well-supported finding that the City
was understood to have placed its stamp of approval on the sectarian content of
the creche can, in the face of the Lemon test, be dismissed as simply an "error
as a matter of law." Ante, at 694.
Moreover, although the Court brushes the point aside with little explanation,
see ante, at 687, n. 13, the Lemon decision's three-prong analysis is not the only

available standard of review. As the Court of Appeals recognized, the "strict

scrutiny" analysis adopted in Larson v. Valente, 456 U.S. 228, 244-246, 102
S.Ct. 1673, 1683-1684, 72 L.Ed.2d 33 (1982), addresses situations in which a
governmental policy or practice grants official preference to one religious
denomination over another. 691 F.2d, at 1034-1035. While I am inclined to
agree with the Court of Appeals that Pawtucket's practice fails this test, it is not
necessary that I address this point in view of my conclusion that the City's
inclusion of the creche violates the standards fixed in Lemon.
Furthermore, I continue to believe that the test I set forth in Schempp is an
appropriate means of determining whether rights guaranteed by the
Establishment Clause have been infringed. In my view, "those involvements of
religious with secular institutions which (a) serve the essentially religious
activities of religious institutions; (b) employ the organs of government for
essentially religious purposes; or (c) use essentially religious means to serve
governmental ends, where secular means would suffice" must be struck down.
374 U.S., at 294-295, 83 S.Ct., at 1609-1610. In the present case, I particularly
believe the third element of this test is not met, since all of Pawtucket's
governmental goals celebrating the holiday season and promoting commerce
can be fully realized without the use of the creche by employing such wholly
secular means as Santa Claus, reindeer, and cut-out figures. See supra, at 699700.
12

Indeed, in the aid-to-sectarian schools cases, the state financing schemes under
review almost always require us to focus on a specific element that may violate
the Establishment Clause, even though it is a part of a complex and otherwise
secular statutory framework. See, e.g., Meek v. Pittenger, 421 U.S. 349, 95
S.Ct. 1753, 44 L.Ed.2d 217 (1975); Wolman v. Walter, 433 U.S. 229, 97 S.Ct.
2593, 53 L.Ed.2d 714 (1977). See also Committee for Public Education v.
Regan, 444 U.S. 646, 662, 100 S.Ct. 840, 851, 63 L.Ed.2d 94 (1980)
(BLACKMUN, J., dissenting).

13

See R.E. Brown, The Birth of the Messiah (1977); W.M. Auld, Christmas
Traditions (1931); A.A. McArthur, The Evolution of the Christian Year (1953).

14

For Christians, of course, the essential message of the nativity is that God
became incarnate in the person of Christ. But just as fundamental to Jewish
thought is the belief in the "non-incarnation of God. . . . [t]he God in whom
[Jews] believe, to whom [Jews] are pledged, does not unite with human
substance on earth." Martin Buber, Israel and the World (1948) (reprinted in F.
Talmadge, Disputation and Dialogue: Readings in the Jewish-Christian
Encounter 281-282 (1975)). This distinction, according to Buber, "constitute[s]
the ultimate division between Judaism and Christianity." Id., at 281. See also R.

Reuther, Faith and Fratricide 246 (1974).

Similarly, those who follow the tenets of Unitarianism might well find
Pawtucket's support for the symbolism of the creche, which highlights the
trinitarian tradition in Christian faith, to be an affront to their belief in a single
divine being. See J. Williams, What Americans Believe and How They
Worship 316-317 (3d ed. 1969). See also C. Olmstead, History of Religion in
the United States 296-299 (1960).
15

Both the District Court and the Court of Appeals recognized that Christmas
comprises both secular and sectarian elements and that this distinction is of
constitutional importance. See 525 F.Supp., at 1163-1164; 691 F.2d, at 10321033; id., at 1035-1037 (Bownes, J., concurring). In addition, many observers
have explained that historically the Christmas celebration derives both from
traditional, folk elements such as gift-giving and winter seasonal celebrations,
as well as from Christian religious elements. See, e.g., J. Barnett, The American
Christmas, A Study in National Culture 9-14 (1954); R. Meyers, Celebrations:
The Complete Book of American Holidays 309-344 (1972); B. & N. Rosenthal,
Christmas 14-15 (1980).

16

It is worth noting that Christmas shares the list of federal holidays with such
patently secular, patriotic holidays as the Fourth of July, Memorial Day,
Washington's Birthday, Labor Day and Veterans Day. See 5 U.S.C. 6103(a).
We may reasonably infer from the distinctly secular character of the company
that Christmas keeps on this list that it too is included for essentially secular
reasons.

17

See W.M. Auld, Christmas Traditions (1931); A.A. McArthur, The Evolution
of the Christian Year (1953).

18

As one commentator has observed, "Today it is of course admitted even by

Catholic exegetes that [the Biblical stories recounting Christ's birth] are a
collection of largely uncertain, mutually contradictory, strongly legendary and
ultimately theologically motivated narratives, with a character of their own.
Unlike the rest of Jesus' life, there are dream happenings here and angels
constantly enter on the scene and leave itas heavenly messengers of God
announcing important events." H. Kung, On Being A Christian 451 (1976) (E.
Quinn, trans.). See also R. Brown, The Birth of the Messiah 25-41 (1977);
Elliott, The Birth and Background of Jesus of Nazareth, 28 Hist. Today 773,
774-780 (1978).

19

Many Christian commentators have voiced strong objections to what they

consider to be the debasement and trivialization of Christmas through too close
a connection with commercial and public celebrations. See, e.g., Kelley,

Beyond Church and State, 5 J. Church & State 181 (1963). See generally J.
Barnett, The American Christmas: A Study in National Culture 55-57 (1954).
20

See A. Stokes & L. Pfeffer, Church and State in the United States 383 (rev. ed.
1964); R. Morgan, The Supreme Court and Religion 126 (1972); J. Barnett,
supra, at 68 (discussing opposition by Jews and other non-Christian religious
groups to public celebrations of Christmas). See also F. Talmadge, Disputation
and Dialogue.

21

See N. Frye, The Secular Scripture 14-15 (1976).

22

O. Simson, The Gothic Cathedral 27 (1956). See also E. Panofsky, Meaning in

the Visual Arts (1967). Compare Justice Jackson's explanation of his view that
the study of religiously-inspired material can, in the correct setting, be made a
part of a secular educational program: "[m]usic without sacred music,
architecture minus the cathedral, or painting without the scriptural themes
would be eccentric and incomplete, even from a secular point of view." Illinois
ex rel. McCollum v. Board of Education, 333 U.S. 203, 236, 68 S.Ct. 461, 477,
92 L.Ed. 649 (1948) (Jackson, J., concurring).

23

The constitutional problems posed by the religious antecedents of the early

Thanksgiving celebrations were well recognized by Thomas Jefferson.
Refusing on Establishment Clause grounds to declare national days of
thanksgiving or fasting, Jefferson explained that
"I consider the government of the United States as interdicted by the
Constitution from intermeddling with religious institutions, their doctrines,
disciplines, or exercises. . . . [I]t is only proposed that I should recommend not
prescribe a day of fasting and prayer . . . [B]ut I do not believe it is for the
interest of religion to invite the civil magistrate to direct its exercises, its
discipline or its doctrine. . . . Fasting and prayer are religious exercises; the
enjoining of them an act of discipline." 11 Jefferson's Writings 428-430 (1905).
See generally L. Pfeffer, Church, State and Freedom 266 (1967).

24

Sutherland, Book Review, 40 Ind.L.J. 83, 86 (1964) (quoting Dean Rostow's

1962 Meikeljohn Lecture delivered at Brown University).

25

The Court's insistence upon pursuing this vague historical analysis is especially
baffling since even the petitioners and their supporting amici concede that no
historical evidence equivalent to that relied upon in Marsh, McGowan or Walz
supports publicly-sponsored Christmas displays. At oral argument, counsel for
petitioners was asked whether there is "anything we can refer to to let us know
how long it has been the practice in this country for public bodies to have
nativity scenes displayed?" Counsel responded: "Specifically, I cannot. The

recognition of Christmas [as a public holiday] began in the middle part of the
last century . . . . but specifically with respect to the use of the nativity scene,
we have been unable to locate that data." Tr. at 8.
In addition, the Solicitor General, appearing as amicus in support of petitioners,
was asked: "Do we have . . . evidence [of the intent of the framers] here with
respect to the display of a nativity scene?" He responded: "Not with that degree
of specificity." Tr. at 23.
26

See S. Cobb, The Rise of Religious Liberty in America 209 (rev. ed. 1970). For
an example of this notorious Puritan antipathy to the holiday, consider the
remarks of Judge Sewell, a Puritan, who in 1685 expressed his concerns about
the influence of public celebration of Christmas: "Some, somehow observe the
day, but are vexed, I believe, that the Body of the People Profane it; and,
blessed be God, no Authority yet to compel them to keep it." Quoted in J.
Barnett, The American Christmas: A Study in National Culture 3 (1954).

27

See generally J. Barnett, The American Christmas, A Study in National Culture

4-6, 21-22 (1954); W. Sweet, Christmas in American History, 22
Chi.Theol.Sem.Register 12, 14 (Nov. 1932); R. Meyers, Celebrations: The
Complete Book of American Holidays 314-315 (1972). Some indication of this
denominational opposition to the religious celebration of Christmas can be
gleaned from the following account of Christmas services in the New York
Daily Times for December 26, 1855:
"The churches of the Presbyterians, Baptists and Methodists were not open on
Dec. 25 except where some Mission Schools had a celebration. They do not
accept the day as a Holy One, but the Episcopalian, Catholic and German
Churches were all open. Inside they were decked with evergreens." Quoted in J.
Barnett, supra, at 8.
In addition, consider the account written in 1874 of Henry Ward Beecher, a
Congregationalist, describing his New England childhood:
"To me Christmas is a foreign day, and I shall die so. When I was a boy I
wondered what Christmas was. I knew there was such a time, because we had
an Episcopal church in our town and I saw them dressing it with evergreens. . . .
A little later I understood it was a Romish institution, kept up by the Romish
Church. Brought up in the strictest state of New England, brought up in the
most literal style of worship . . . I passed all my youth without any knowledge
of Christmas, and so I have no associations with the day." Quoted in R. Meyers,
supra, at 316.

28

The role of these religious groups in the struggle for disestablishment and their

place in the history of the Establishment Clause has already been chronicled at
some length in our cases, and therefore I will not repeat that history here. See
Everson v. Board of Education, 330 U.S. 1, 9-15, 67 S.Ct. 504, 508-11, 91
L.Ed. 711 (1947); Engel v. Vitale, supra, 370 U.S., at 428 and n. 10, 82 S.Ct., at
1265 and n. 10; Committee for Public Education v. Nyquist, supra, 413 U.S., at
770 and n. 28, 93 S.Ct., at 2964 and n. 28. For more comprehensive discussions
of the efforts of these denominations to bring about disestablishment, see S.
Cobb, The Rise of Religious Liberty in America (rev. ed. 1970); B. Bailyn, The
Ideological Origins of the American Revolution 257-263 (1967); W.
McLoughlin, New England Dissent: 1630-1833 (1971); L. Pfeffer, Church,
State and Freedom (1967).
29

See J. Barnett, supra, at 2-6.

30

For a compilation of these developments, see J. Barnett, supra, at 19-20.

31

Ch. 167, 16 Stat. 168 (1870). There is no suggestion in the brief congressional
discussion concerning the decision to declare Christmas day a public holiday in
the District of Columbia, that Congress meant to do anything more than to put
the District on equal footing with the many other States that had declared those
days public holidays by that time. See Cong.Globe, 41st Cong., 2d Sess. 4805
(1870).
Significantly, it was not until 1885 that Congress provided holiday payment for
federal employees on December 25. See J. Res. 4, 23 Stat. 516 (1885).

32

See J. Barnett, supra, at 11-12; R. Meyers, Celebrations: The Complete Book of

American Holidays (1972). The symbol of the creche as an artifact of
Christmas celebration apparently owes its origins to St. Francis of Assisi who,
according to most accounts, first popularized the ritual reenactment of the birth
of Christ by erecting a manager attended by townspeople who played the nowtraditional roles of shepherds, Magi, etc. in the village of Greccio, Italy, in
1224. See W. Auld, Christmas Traditions 56 (1931); M. Krythe, All About
Christmas 85 (1954).

33

One commentator has noted that the increasing secularization of the Christmas
celebration which occurred during the nineteenth century led "members of the
Puritan and evangelical churches [to be] less inclined to oppose the secular
celebration when it no longer symbolized the religious and political domination
of the Church of England. This tolerance increased during the nineteenth
century and undoubtedly encouraged [the] popularity [of the celebration of
Christmas]." J. Barnett, supra, at 6; see also id., at 11-12, 22-23.