AMERICAN CIVIL LIBERTIES UN. v. ALLEGHENY CTY

OPINION OF THE COURT

[31] WEIS, Circuit Judge, dissenting.

It is unfortunate that plaintiffs have succeeded in stifling governmental commemoration of two miracles which occurred about one hundred-fifty years apart in time, but so few miles in distance — and muffling the message of peace and understanding that pervades the joint observance. This aggressive "neutrality" is contrary to the spirit of religious liberty embodied in the First Amendment and will lead not to accommodation but to animosity, not to tolerance of, but hostility toward, religion.

I.

The jurisprudence of the Establishment Clause, by far the more litigated of the two religion guarantees of the First Amendment, ranks high in confusion, inconsistency, and emotional fervor. It has provoked an enduring and highly spirited debate. At one extreme of the controversy are those who advocate an absolutist separation between religion and state, a quarantining of one from the other that verges on governmental enmity toward religion. At the other end of the debate are those who find no constitutional impropriety in governmental activity that aids all creeds equally and without discrimination.

The Supreme Court's teachings in this area have become mired between these two competing positions, each view at different times and on different issues commanding a narrow majority in the Court and emerging as the law of the land, often just temporarily. As a result, the Court's Establishment Clause decisions map out only a wavering, uncertain course of what is permissible governmental activity. Illustrative cases demonstrate the breadth of the controversy and the inconsistent results.

Absolutists would condemn all forms of government financial aid to religion. See Zorach v. Clauson, 343 U.S. 306, 318, 72 S.Ct. 679, 686, 96 L.Ed. 954 (1952) (Black, J., dissenting) ("In considering whether a state has entered this forbidden field the question is not whether it has entered too far but whether it has entered at all.") However, the Court has found no constitutional violation in the longstanding government practices of providing tax exemptions to religious institutions, Walz v. Tax Comm'n, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970); federal grants for constructing college buildings at church-sponsored universities, Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971); and vocational assistance to finance a blind person's training at a Christian college to become a pastor, missionary, or youth director, Witters v. Washington Dep't of Servs. for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986), although each of these programs conferred a measurable financial benefit on religion.

Similarly, the Court has ruled that a state legislature did not violate the Establishment Clause by engaging a chaplain to open each legislative session with a prayer, Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983); or by enacting a statute prohibiting all commercial activity on Sunday, McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Nevertheless, a statute directing the posting of a privately-purchased copy of the Ten Commandments in school classrooms was held contrary to the Establishment Clause. Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980).

Invoked often in cases questioning a state's financial support to parochial schools, the Establishment Clause has yielded contradictory and frequently irrational results. The Court has held that a school district may pay for students' bus transportation to parochial schools, where religion undoubtedly will be taught. Everson v. Board of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). But government may not finance bus trips for parochial students to a natural history museum, where religious instruction is highly unlikely. Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977). A state may lend parochial schools textbooks that contain maps of the United States, Board of Educ. v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), but it may not lend those same schools unbound maps of the United States for use in geography classes, Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975).

A state may provide supplementary remedial courses in math and reading to parochial school students. Wolman, 433 U.S. at 245, 97 S.Ct. at 2604. However, remedial courses taught by visiting public school teachers may not be conducted in parochial school classrooms leased by the state, cleared of religious artifacts, and bearing disclaimer signs. School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985). Numerous similar examples only make the same point. See Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U.Pitt.L.Rev. 673, 680 (1980). One must reluctantly agree with the Supreme Court's own assessment of its success in this area, that after forty-one years of trying it still "can only dimly perceive the lines of demarcation." Witters, 474 U.S. at 485, 106 S.Ct. at 751.

Commentary by legal scholars parallels the Court's deep ideological divisions. The sheer volume of publications on the subject has reached such proportions that its magnitude alone discourages judicial reference. See, e.g., Fairchild, Lynch v. Donnelly: The Case For the Creche, 29 St. Louis U.L.J. 459 (1985); Van Alstyne, Trends in the Supreme Court: Mr. Jefferson's Crumbling Wall — A Comment on Lynch v. Donnelly, 1984 Duke L.J. 770, 772 n. 5 (sampling commentary). See also Religion and the State, 27 Wm. Mary L.Rev. 833, 833-1109 (1986) (symposium).

Particularly misleading has been the Court's recurring characterization of the Establishment Clause's objective as erecting a "wall of separation." This metaphor, originally invoked by the Court over a century ago in Reynolds v. United States, 98 U.S. (8 Otto) 145, 164, 25 L.Ed. 244 (1879), is ascribed to Thomas Jefferson. In a short note to the Danbury Baptist Association in 1802, he wrote: "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should `make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State." Thomas Jefferson: Writings 510 (M. Peterson ed. 1984). Jefferson considered the Religion Clauses applicable to the national, but not state, government.

Justice Black later treated this reference as an expression of the Framers' intent, embracing the metaphor as a guiding principle for Religion Clause analysis. In his view, our national religious freedom was conditioned on keeping this "wall" separating church from state "high and impregnable." Illinois ex rel. McCollum v. Board of Educ., 333 U.S. 203, 212, 68 S.Ct. 461, 465, 92 L.Ed. 649 (1948); Everson, 330 U.S. at 18, 67 S.Ct. at 513.

As an interpretation of the Framers' intent, the metaphor is quite inaccurate. The author, Thomas Jefferson, was not in the country when the Clause was debated and ratified, nor does his note to the Danbury Baptist Association — written eleven years after the Establishment Clause was added to the Constitution — shed much light on the original drafters' intentions. Though the phrase might have reflected James Madison's views as articulated at the time of his 1785 Memorial and Remonstrance Against Religious Assessments, it does not comport with his expressed understanding of the Clause's meaning at the time of its formulation.

It appears that Jefferson himself did not perceive his "wall" to be so high as to preclude state acknowledgment of religion. Judge Easterbrook cites Jefferson's preamble to his 1779 Virginia Bill for Establishing Religious Freedom: "Well aware . . . that Almighty God hath created the mind free, and manifested his Supreme will that free it shall remain, . . . That all attempts to influence it by temporal punishments . . . are a departure from the plan of the holy author of our religion, who being Lord both of body and mind . . . ." American Jewish Congress v. City of Chicago, 827 F.2d 120, 135-36 (7th Cir. 1987) (Easterbrook, J., dissenting). See also Crabb, Religious Symbols, American Traditions and the Constitution, 1984 B.Y.U.L.Rev. 509, 516 n. 31 (Jefferson's Declaration of Independence contains four references to Deity, including: "We hold these truths to be self-evident, that all men . . . are endowed by their Creator with certain inalienable Rights . . .").
As President, Jefferson had signed a treaty with the Kaskasia Indians providing for annual federal funding for a Catholic priest for the tribe and placing 12,000 acres of land in trust "for propagating the Gospel among the Heathen." Wallace v. Jaffree, 472 U.S. 38, 103 n. 5, 105 S.Ct. 2479, 2482 n. 5, 86 L.Ed.2d 29 (1985) (Rehnquist, J., dissenting).

Madison's Memorial and Remonstrance was appended to Justice Rutledge's dissent in Everson v. Board of Educ., 330 U.S. 1, 63-72, 67 S.Ct. 504, 91 L.Ed. 711 (1947).

Recorded in the Annals of Congress is Madison's understanding of what the new amendment meant:

"He [Madison] believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform. He thought if the word `national' was introduced [before the word religion], it would point the amendment directly to the object it was intended to prevent."

1 Annals of Cong. 731. This view, that the Establishment Clause was intended only to exclude rivalry among Christian sects, was echoed by Justice Story. See 2 J. Story, Commentaries on the Constitution of the United States 631-32 (M. Bigelow 5th ed. 1891).
As Judge Easterbrook notes, Madison may in fact have approved of a balancing test approach to the Establishment Clause. While President, Madison had proclaimed national days of fasting and thanksgiving. Though he later "recanted" this "separationist heresy," Madison pleaded de minimis non curat lex. City of Chicago, 827 F.2d at 132 n. 2 (Easterbrook, J., dissenting).

More telling is the actual conduct of the First Congress, the body that considered and adopted the Establishment Clause. See Wallace, 472 U.S. at 100-03, 105 S.Ct. at 2513-15 (Rehnquist, J., dissenting). The First Congress reenacted the Northwest Ordinance of 1787 (providing that "[r]eligion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged"), see id. at 100, 105 S.Ct. at 2513; and implored President Washington to declare a national day of thanksgiving and prayer so that all Americans might join voices "in returning to Almighty God their sincere thanks for the many blessings he had poured down upon them," see id. at 101, 105 S.Ct. at 2513. The same week that it approved the Establishment Clause for submission to the states, the First Congress authorized the hiring of legislative chaplains. Lynch v. Donnelly, 465 U.S. 668, 674, 104 S.Ct. 1355, 1359, 79 L.Ed.2d 604 (1984).

Thus, the historical evidence is clear that the Framers did not intend the Establishment Clause to erect between religion and state a "wall of separation." In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the Supreme Court conceded that its "wall" reference had been an unwise choice of metaphors. "Judicial caveats against entanglement must recognize that the line of separation, far from being a `wall,' is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." Id. at 614, 91 S.Ct. at 2112.

Yet, the use of this inaccurate metaphor persists along with its unfortunate semantic overtone implying a preference for state antagonism to, rather than accommodation of, religion in the United States. As I explained in Public Funds for Public Schools of New Jersey v. Byrne, 590 F.2d 514, 522 (3d Cir.) (Weis, J., concurring), aff'd sub nom, 442 U.S. 907, 99 S.Ct. 2818, 61 L.Ed.2d 273 (1979), I find the encouragement of such a relationship between religion and state undesirable and inconsistent with the Constitution.

Recognizing the lack of a common principle in its Establishment Clause cases, the Supreme Court has attempted to offer some guidance in this sensitive area. The Court most frequently has applied the three-factor formula set out in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Lemon recognized the impossibility of total separation between church and state. "Some relationship between government and religious organizations is inevitable." Id. at 614, 91 S.Ct. at 2112. To assess whether that relationship in a specific case has crossed the line of permissibility, the Court examines 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 with religion. Id. at 612, 91 S.Ct. at 2111.

The Lemon approach often has been criticized as inadequate, but has been employed by the Court on most occasions — perhaps only because a better analysis has yet to command a majority. Cf. Edwards v. Aguillard, ___ U.S. ___, ___, 107 S.Ct. 2573, 2607, 96 L.Ed.2d 510 (1987) (Scalia, J., dissenting) (advocating abandonment of Lemon's purpose prong); Wallace, 472 U.S. at 91, 105 S.Ct. at 2508 (White, J., dissenting) (supporting basic reconsideration of Establishment Clause precedents); Lynch, 465 U.S. at 688-89, 104 S.Ct. at 1367-68 (O'Connor, J., concurring) (suggesting an institutional entanglement/endorsement two-part test to replace Lemon).

Nevertheless, the Court repeatedly has refused to accept the three-part Lemon analysis as the single, dispositive "test" for evaluating a state's conduct under the Establishment Clause. See, e.g., Witters, 474 U.S. at 485, 106 S.Ct. at 751 (Court merely "guided" by Lemon); Ball, 473 U.S. at 382-83, 105 S.Ct. at 3222 ( Lemon serves to guide "the general nature of our inquiry"); Lynch, 465 U.S. at 679, 104 S.Ct. at 1362 ( Lemon useful but not always relevant); Mueller v. Allen, 463 U.S. 388, 394, 103 S.Ct. 3062, 3066, 77 L.Ed.2d 721 (1983) ( Lemon provides "no more than a helpful signpost"). On occasion, the Court has refused even to invoke that formula, particularly when the result would be to overturn long-established traditions. See Lynch, 465 U.S. at 679, 104 S.Ct. at 1362. Such a departure from Lemon is illustrated by Marsh v. Chambers, where the Court refused to ban either prayer sessions opening the legislative day or payment to the legislature's chaplain.

With this brief survey of an exceptionally complicated subject matter behind us, we come now to the case which, to my mind, is the controlling precedent and binds this court.

II.

The majority agrees that Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), should be the starting point of our analysis. I believe that Lynch also ends our analysis. That case directly addresses and conclusively resolves the dispute we encounter here. Because the district court properly applied the holding in Lynch, I would affirm its judgment.

The concern in Lynch was a creche displayed under municipal auspices and encouragement, as is the case here. In describing the town of Pawtucket's creche display, the Chief Justice wrote that the scene was "essentially like those to be found in hundreds of towns or cities across the Nation — often on public grounds — during the Christmas season." Lynch, 465 U.S. at 671, 104 S.Ct. at 1358. The creche was purchased by the town government, and assembled, disassembled, and stored by town workers. In the annual lighting ceremony, the mayor threw the switch to illuminate the creche.

In its opinion, the Supreme Court discussed at some length the competing constitutional arguments implicated by this display. It is helpful to distill key elements.

The Court first reaffirmed its holdings that complete separation between religion and state is not required, but that the Constitution "affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any." Id. at 673, 104 S.Ct. at 1359. Thus, official pronouncements by Presidents and Congress declaring Christmas a national holiday have done so permissibly "in religious terms." Id. at 676, 104 S.Ct. at 1360.

The Court renounced the absolutist approach that would mechanically invalidate all state actions that confer a benefit on or afford special recognition to a particular religion or to religion in general. Instead, the Court explained that the challenged governmental conduct must be examined "to determine whether, in reality, it establishes a religion or religious faith, or tends to do so." Id. at 678, 104 S.Ct. at 1361-62.

The Court assumed that the Christmas creche "advances religion in a sense," id. at 683, 104 S.Ct. at 1364, and conceded that it possessed "religious significance," id. at 687, 104 S.Ct. at 1366. The opinion made clear, however, that mere advancement of religion is not the test for assessing constitutionality under the Establishment Clause. "[O]ur precedents plainly contemplate that on occasion some advancement of religion will result from governmental action." Id. at 683, 104 S.Ct. at 1364.

Although the creche "of course" is widely identified with one particular faith, in the Court's assessment this identification is no greater than that found in other cases upheld against Establishment Clause challenges. Id. at 685, 104 S.Ct. at 1365. "[N]ot every law that confers an `indirect,' `remote,' or `incidental' benefit upon [religion] is, for that reason alone, constitutionally invalid." Id. at 683, 104 S.Ct. at 1364.

The Court concluded: "To forbid the use of this one passive symbol — the creche — at 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 overreaction contrary to our history and to our holdings. * * * Any notion that these symbols pose a real danger of establishment of a state church is farfetched indeed." Id. at 686, 104 S.Ct. at 1366.

Justice O'Connor joined in the majority opinion, but wrote separately to suggest a reformulation of the Establishment Clause analysis that would hinge on a state's "endorsement" of religion. Id. at 687, 104 S.Ct. at 1366 ("I concur in the opinion of the Court. I write separately to suggest a clarification of our Establishment Clause doctrine."). Justice O'Connor expressed some concern that a government's endorsement of religion might send "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." Id. at 688, 104 S.Ct. at 1367 (O'Connor, J., concurring). She concluded that the resolution of this analysis in Lynch was "in large part a legal question to be answered on the basis of judicial interpretation of social facts." Id. at 694, 104 S.Ct. 1370 (O'Connor, J., concurring).

Also conceding the "religious and indeed sectarian significance of the creche," Justice O'Connor found that "the overall holiday setting . . . 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." Id. at 692, 104 S.Ct. at 1369 (O'Connor, J., concurring).

It should be emphasized that Justice O'Connor joined not only in the judgment of the Court but in the opinion of the other four Justices as well. Her concurrence, therefore, must be read as agreement with the lead opinion written by the Chief Justice and suggesting, but not requiring, an alternate rationale for reaching the same result. Justice O'Connor, as well as the Lynch majority, concluded that although the creche contains a religious element, it nevertheless passes Establishment Clause scrutiny.

Cf. United States v. Mechanik, 475 U.S. 66, 73, 106 S.Ct. 938, 943, 89 L.Ed.2d 50 (1986) (O'Connor, J., concurring) (concurring in result, but rejecting majority's reasoning).

Despite the clarity of the Supreme Court's holding that a municipal creche display erected during the holiday season does not constitute an impermissible endorsement of religion, two courts of appeals, over strong dissents, have ruled otherwise. These courts have pointed to irrelevant and inconsequential variations in the location of the creche display and its positioning among other Christmas symbols as factors to justify disregarding the clear spirit of Lynch.

In American Jewish Congress v. City of Chicago, 827 F.2d 120 (7th Cir. 1987), the Court of Appeals for the Seventh Circuit decided that a creche scene in the lobby of the Chicago City Hall violated the Establishment Clause. The court reasoned that the location inside a government building intensified the state's "alliance" with religion, and distinguished that display from the one in Lynch erected in a private park. On that basis, the panel majority thought itself free to declare the display unconstitutional.

In American Civil Liberties Union v. City of Birmingham, 791 F.2d 1561 (6th Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986), the Court of Appeals for the Sixth Circuit found fault with Birmingham's "unadorned" creche — one unaccompanied by secular holiday decorations. The court concluded that without nonreligious trappings to temper its impact, a Christmas creche conveys an unconstitutional sectarian message.

In both instances, the majority opinions reflect less an attempt to apply the Supreme Court's holding in Lynch than a disapproving rejection of its message. But the judicial hierarchical system in this country mandates faithful adherence by lower federal courts to a holding of the United States Supreme Court, "no matter how misguided the judges of those courts may think it to be." Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 706, 70 L.Ed.2d 556 (1982).

The powerful dissenting opinions in both cases demonstrate the errors of those majorities, critiques to which little need be added here. Some aspects merit emphasis, however. The City of Chicago's governmental location distinction ignores the Supreme Court's observation in Lynch that the Pawtucket creche was essentially similar to those displays found nationwide — "often on public grounds." Lynch, 465 U.S. at 671, 104 S.Ct. at 1358. Municipal participation was no secret, and the Supreme Court treated the display as governmental action.

Moreover, the court of appeals' preoccupation with the Christmas display location in City Hall is especially perplexing in light of the Supreme Court's decision in Marsh v. Chambers. In that case, the challenged prayer service was conducted in the legislative chamber itself — not a public area of the capitol building. If the Supreme Court did not consider that practice a prohibited endorsement of the sectarian beliefs espoused by the legislatively-paid chaplain, it is difficult to understand why a creche displayed in a government building during the Christmas season cannot pass constitutional muster. Indeed, the fact that Christmas has been declared a national holiday by the state (and that action is not considered a forbidden endorsement) weighs heavily against the City of Chicago rationale.

Equally unpersuasive is the City of Birmingham's adorned/unadorned distinction. Lynch simply does not support applying such a "Two Plastic Reindeer" rule. As Justice O'Connor noted, the secular decorations surrounding the Pawtucket creche did not nullify its sectarian religious significance. Rather, the December holiday setting was the element that altered "what viewers may fairly understand to be the purpose of the display — as a typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content." Lynch, 465 U.S. at 692, 104 S.Ct. at 1369 (O'Connor, J., concurring).

See Note, Of Crosses and Creches: The Establishment Clause and Publicly Sponsored Displays of Religious Symbols, 35 Am.U.L.Rev. 477, 495 (1986). Judge Nelson has described this distinction with the similarly fitting label, the "St. Nicholas, too" test. City of Birmingham, 791 F.2d at 1569 (Nelson, J., dissenting) ("a city can get by with displaying a creche if it throws in a sleigh full of toys and a Santa Claus, too").
Actually, the Santa Claus legend is derived from folklore surrounding the life of St. Nicholas, a Catholic bishop of the fourth century. In the Dutch and German customs, St. Nicholas delivers gifts to children on December 6. The secularization process in the United States combined the St. Nicholas tradition with the birth of Christ, and both became celebrated on December 25. See J. Barnett, The American Christmas 4, 24-48 (1954); E. Count, 4000 Years of Christmas 57-63 (1948).

This "unadorned" distinction, even if valid, is irrelevant here. The Pittsburgh creche was surrounded by traditional Christmas symbols, including wreaths, evergreen trees, and poinsettia plants, and served as a thematic backdrop for the County's traditional holiday choral program. The appellants' contention that these obviously secular symbols are not secular enough calls to mind Judge Nelson's admonition: "I question whether it is appropriate for the federal courts to tell the towns and villages of America how much paganism they need to put in their Christmas decorations." City of Birmingham, 791 F.2d at 1569 (Nelson, J., dissenting).

All of the courts of appeals have not disregarded Lynch. In the only unanimous post- Lynch appellate decision, the Court of Appeals for the Second Circuit rejected both the governmental location and the adorned/unadorned distinctions. McCreary v. Stone, 739 F.2d 716 (2d Cir. 1984), aff'd by an equally divided Court, 471 U.S. 83, 105 S.Ct. 1859, 85 L.Ed.2d 63 (1985). There, the court found that a disclaimer sign attached to a creche served as an acceptable device to assure spectators that the municipality did not endorse religion. though Lynch would not require such a sign, the court in City of Chicago refused to accept even that modification as a means of reducing the appearance of governmental endorsement.

The City of Chicago and City of Birmingham cases are surprising for their reexamination of the creche under Lemon, independent of the Supreme Court's application of that analysis in Lynch. Yet the Court in Lynch already had evaluated the creche display against the Lemon criteria and found it constitutional. First, the Court decided that the display had the secular purpose of depicting the historical origins of the Christmas holiday. Lynch, 465 U.S. at 680, 104 S.Ct. at 1362. Second, the Court concluded that the creche's primary effect constituted no greater an endorsement of religion than that found acceptable in prior Establishment Clause cases. Id. at 682, 104 S.Ct. at 1364. Third, the Court determined that Pawtucket's administrative entanglement in administering and maintaining the creche was de minimis. Id. at 684, 104 S.Ct. at 1365. But the Court did not end its discussion there. Rather, it proceeded to emphasize that the creche was a "passive" symbol, the banning of which would constitute "a stilted overreaction." Id. at 685-86, 104 S.Ct. at 1365-66.

The tone of Lynch is unmistakable. I have found no indication that the Pawtucket display survived constitutional scrutiny because it was situated in a private park rather than a county courthouse, or because it closely resembled a miniature golf course with candy-striped poles, talking wishing wells, and cut-out elephants. The civil government's recognition of the origins of Christmas during the holiday season simply was not perceived by the Supreme Court as a threat to the aims of the Establishment Clause. The Court all but dismissed the appellant's claim as much ado about nothing and, reading the opinion, one can imagine the Court steadfastly resisting the temptation of chiding, "Bah humbug!"

III.

The facts of the case at hand do not differ significantly from those in Lynch. The placement of the creche in the gallery of the Allegheny County Courthouse, accompanied by poinsettia plants and evergreens, does not violate the Establishment Clause simply because plastic Santa Clauses or reindeer are absent. Neither does placing the creche in the Courthouse during the Christmas season emit any more coercive effect than the paintings displayed in the Courthouse gallery.

Appellants have not challenged the high schools' choral singing programs that take place in the same location at the Courthouse, indeed using the creche as a scenic backdrop. Unlike the creche, the singing is not passive, but rather vocalizes unquestionably religious themes. Yet those carols also are part of this nation's cultural heritage. Should they too be censored from utterance in the Courthouse? What of a municipality's holiday banner bearing Tiny Tim's timeless petition, "God bless us, everyone"? Must the name of the holiday be changed to "Winter Solstice Day" so that there can be no government "endorsement" of a "religious overtone"?

Distilled to its essence, Lynch advocated an approach of moderation, understanding, and a sense of proportion in ruling on displays commemorating the Christmas season. I think the decision in this case strays from that course.

IV.

What, then, of the menorah? The majority relies on cases that emphasize the total grouping of the holiday symbols. It may help, therefore, to describe the spatial circumstances here. A narrow street separates the City-County Building in Pittsburgh from the Courthouse; a tunnel runs underneath, connecting the two. County offices and courts are located in the Courthouse.

The City-County Building also houses Allegheny County government offices, including the Register of Wills and the Prothonotary of the Common Pleas Court. In addition, the City-County Building also contains county courtrooms and the City of Pittsburgh offices. Rather than separate and unrelated structures, these two buildings are more accurately treated as a unified government complex. Viewed from the average citizen's perspective, the creche and the Christmas tree in the Courthouse together with the menorah affixed to the front of the City-County Building constitute but one large display commemorating the holiday season.

I assume, as the Court did in Lynch, that the challenged symbol has religious significance. I assume further that the menorah, in this context, is associated with Chanukah, a religious holiday celebrated by persons of the Jewish faith. Chanukah often occurs in late December. As the district judge explained, in displaying both Jewish and Christian holiday symbols, the local governments allowed those faiths to call attention to the miracles enriching their histories, thereby demonstrating the harmony of their ideals of "bringing light to the world."

Chanukah — meaning the Days or the Feast of Dedication — is celebrated for eight days beginning on the twenty-fifth of Kislev in the Jewish calendar. It is basically a home festival, centering on the kindling of candles each evening at dusk. The festival commemorates the recapture in 165 B.C.E. of the Holy Temple in Jerusalem from the Syrian Greeks. In preparing to rededicate the temple, the Maccabees could locate only a one-day's supply of the sacred oil used to light the temple menorah. Nevertheless, the oil burned in the menorah for eight continuous days until new oil could be prepared. The next year, Chanukah was set for perpetual celebration of the Jewish nation's victory over religious persecution. See H. Gaster, Festivals of the Jewish Year 234-53 (1978); M. Ickis, The Book of Festival Holidays 88-89 (1964).

Viewing these displays as a whole, I find that the "message" conveys no more government endorsement of religion than if the creche alone were exhibited. Including a reference to Chanukah did no more than broaden the commemoration of the holiday season and stress the notion of sharing in its joy. By marking the Judeo-Christian aspects of the holiday season, the local governments appropriately called attention to the great pluralism that is the hallmark of religious tolerance in this country.

Unlike the posting of the Ten Commandments invalidated in Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980), the menorah is not a permanent fixture on the Pittsburgh City-County Building; it is erected and dismantled in conjunction with the celebration of Chanukah.

I find no breach of the Establishment Clause here.

V.

Despite many opportunities to do so, the Supreme Court has never held that state practices which afford special recognition to religious groups are, for that reason alone, constitutionally infirm. Instead, the Court has expressly rejected such a view as "contrary to the teaching of our cases that there is ample room for accommodation of religion under the Establishment Clause." Corporation of Presiding Bishop v. Amos, ___ U.S. ___, ___, 107 S.Ct. 2862, 2869, 97 L.Ed.2d 273 (1987).

By publicly acknowledging the holidays of the various religions, "[w]e make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary." Zorach, 343 U.S. at 313, 72 S.Ct. at 683. In displaying the symbols of religious holidays during their celebration, "[w]e sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma." Id. Instead of contravening the Establishment Clause, such displays constitute "simply a tolerable acknowledgment of beliefs widely held among the people of this country." Marsh, 463 U.S. at 792, 103 S.Ct. at 3336.

These displays pose no threat to religious freedom, yet their suppression forebodes ominous consequences. I dissent.