High Court OKs city-sponsored religious display

Tuesday, March 10, 1998

The U.S. Supreme Court has let stand a federal appeals court decision allowing city officials in Syracuse, N.Y., to continue paying for and setting up a religious display during the Christmas season.

Without comment, the Supreme Court Monday refused to hear an appeal from Carol A. Elewski, a resident who brought a federal lawsuit against the city in 1995 alleging the city's tradition of setting up a nativity scene in a downtown business district violated the First Amendment's principle of separation of church and state.

Last year the federal appeals court for the 2nd District found that the city-owned crèche, which includes statutes of Jesus and Mary and a banner proclaiming glory to God, could not be construed as an endorsement of Christianity by a “reasonable” observer. Additionally, the federal court ruled that city officials did not erect the crèche for religious reasons but only to “bring the community together and to promote business.”

In upholding the constitutionality of the religious display, the federal court noted the city also decorated other parts of downtown with secular objects like greenery, wreaths, and colored lights. City workers also helped a private religious organization erect a menorah in Hanover Square, located about 300 feet from the city's crèche.

“Such an observer would perceive a celebration of the diversity of the holiday season, including traditional religious and secular symbols of that season, and that a principle purpose for that celebration was to preserve the economic viability of downtown retailers,” the court concluded.

In denying an appeal of the federal court's decision, the Supreme Court appears to support opinions authored by Justices Sandra Day O'Connor and David Souter in the 1995 Court decision, Capitol Square v. Pinette.

Five of the justices in Capitol Square said a government-sponsored religious display does not necessarily subvert the First Amendment's principle of separation of church and state, especially if a “reasonable observer” does not perceive a government endorsement of religion. Three of the justices, led by O'Connor, however, argued that the “reasonable observer” should be one who is “deemed aware of the history and context of the community and forum in which the religious display appears,” and not a “casual passerby.”

The Supreme Court has heard numerous cases regarding government-sponsored religious expression and generally has ruled that if the display is created by private organizations it is less likely to offend the separation of church and state.

Prior to the high court's Capitol decision, however, it ruled in Allegheny County v. ACLU that a crèche prominently displayed in a county courthouse could give a reasonable observer the notion of government endorsement of Christianity.

Michael McConnell, a University of Utah law professor and religious liberty scholar, questioned the high court's analysis of religious symbol cases.

“My main objection with the Supreme Court's jurisprudence is that it emphasizes the question of whether the religious display is surrounded by secular materials which inevitably lead to the conclusion that government can have a religious display as long as it is not done in a tasteful or respectful manner,” McConnell said. “The Establishment Clause should not be seen as requiring government to secularize culture.”

McConnell added the court should broaden the context in which it determines whether government-sponsored religious displays violate the separation of church and state. By relying heavily on the amount of secular fodder that surrounds such displays, McConnell suggested that the “real established religion is materialism.”

Joseph Conn, a spokesman for Americans United for Separation of Church and State which urged the high court to review the case, decried the lower court's decision for allowing city funding of a religious display.

“We are disappointed the Supreme Court decided not to review this case,” Conn said. “The lower court simply failed to uphold the general principle that government should not advance religion. The court let stand a situation that appears to be a city government promoting one religion over others.”