Public Displays

The Supreme Court’s approach to public religious displays under the Establishment Clause has been less than clear. Its primary cases fall into two groups: seasonal holiday displays and static monuments. When it comes to seasonal holiday displays, some commentators have described the Court’s standard as the “three plastic animals rule”—a Christian nativity scene on public property passes muster if it is accompanied by a sufficient combination of Rudolph, Frosty, and their friends.   

The key cases pertaining to holiday displays came in the 1980s. In Lynch v. Donnelly, 465 U.S. 668 (1984), the Court upheld the constitutionality of a display cosponsored by city officials in Pawtucket, Rhode Island. The display included a manger scene (also called a creche) alongside other items including “a Santa Claus House, reindeer pulling Santa’s sleigh . . . cutout figures representing such characters as a clown, an elephant, and a teddy bear.” City residents and the local ACLU chapter challenged the inclusion of the creche in the display. Chief Justice Burger’s opinion for the court adopted a contextual approach: “In each case, the inquiry calls for line-drawing; no fixed per se rule can be framed.” Justice O’Connor’s concurrence advocated what came to be known as the “endorsement test,” which evaluated the constitutionality of the display based on whether it could “fairly be understood to convey a message of government endorsement of religion.”

Five years later, in County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989), a divided court concluded that a creche display in a Pittsburgh courthouse violated the establishment clause. But in the same opinion, the Court held that a display in a government building a block away passed muster because it contained a menorah, a Christmas tree, and other decorations. Justice Blackmun’s opinion for the Court observed that “Lynch teaches that government may celebrate Christmas in some manner and form, but not in a way that endorses Christian doctrine.” He noted that the government building display, in contrast to the courthouse display, reflected the “winter holiday season, which has attained a secular status in our society” and characterized Chanukah and Christmas as “winter festivals.”

Static monuments pose similarly vexing problems. The most frequently litigated cases involve some of the thousands of architectural displays of the Ten Commandments. The key cases came down the same day in 2005. In Van Orden v. Perry, 545 U.S. 677 (2005), a 5-4 Court upheld the constitutionality of a Ten Commandments monument in an Austin, Texas, public park. In McCreary County v. American Civil Liberties Union (2005), a 5-4 Court struck down Ten Commandments displays in two Kentucky county courthouses, concluding that the clear legislative intent of the monuments was to promote religion. 

In 2019, the Court decided American Legion v. American Humanist Association, the latest word on static displays. The Court held that the Bladensburg Peace Cross (a 32-foot-tall Latin cross paying tribute to soldiers who perished in World War I) did not violate the Establishment Clause. Do you agree? What role should tradition play, if any, in a court’s analysis for a public display? More generally, how should courts analyze whether a public display violates the Establishment Clause?

Reading Assignment:

• American Legion v. American Humanist Association (2019)

Optional Reading:

• Michael Stokes Paulsen, “More Light Than Heat,” Scotusblog (June 21, 2019)

• Harvey Weiner, “The Cross May Stand, Though it Offends,” Scotusblog (June 20, 2019)

• Michelle Boorstein, “La.’s Ten Commandments law will test religion-friendly courts, experts say,” Washington Post (June 20, 2024)

Images of Other Public Displays: