Religion and Law: Organizations and Programs

Chapter 4

Religion and Law: Organizations and Programs

The last two chapters discussed the role of the state action doctrine, rational basis review and strict scrutiny analysis in deciding the system-reference and functional relevance of actions and events without addressing the ambiguous role of organizations or the temporal dimension of decision-making. The tangled body of doctrine produced in the course of the Court’s interpretation of the religious clauses of the First Amendment (1791) provides useful occasions for such investigation.¹ Here we will see the inadequacy of result-oriented or purposeful tests to ensure consistency in adjudication and will go on to demonstrate how systems theory can provide some clarity in that regard.

A Double Bind

Controversy over the proper relationship between politics and religion in the legal tradition of the US dates to the establishment of the first North American English colonies. Seven of the original 13 colonies that were to become the US had established either the Church of England or the Congregational Church. This symbiotic relation between the political system and religion became problematic as adherents of diverse denominations and religions arrived in the New World and grew in number. Tax collection for the established Church became a source of political conflict, with minority denominations calling for an end to both taxation in support of established Churches and government control over Church-related matters. The Test Oath Clause of the Constitution (1787) prohibiting any religious test “as qualification for any office or public trust under the United States” and the religious clauses of the First Amendment were born out of this tension. They were to prevent political intervention in religious life and religious intervention in political affairs.

Whatever the intentions of those who crafted the text of the Amendment, its language bound only the federal government. Since States were left to deal with religion as they pleased, a result was increasing splintering of Christianity and a Christianized nationalist rhetoric. Thus, it was not surprising that upon his arrival in America, Alexis de Tocqueville took immediate note of the inhabitants’ strong religiosity.2 While similar observations can be easily corroborated today,³ the meaning of religious freedom and the constitutional ban on the establishment of religion has changed drastically.

Until the 1940s, when the Free Exercise Clause⁴ and the Establishment Clause⁵ were made applicable to the States, the Court had decided only two cases under these provisions.⁶ Since then, the double bind of “free exercise” and no “establishment” of religion has provided endless controversy in literally all social communication systems. Time and again, the Court has been called upon to decide the correct application of the code “constitutional/unconstitutional” in matters concerning religion. The Court’s response has varied across social systems and over time: Property tax exemptions to Churches are found constitutional,⁷ but sales tax exemptions on religious merchandise are not.⁸ Loaning textbooks to religious schools is found constitutional,⁹ but supplementary salary for their teachers is not.¹⁰ Chaplaincy in legislatures is found constitutional,¹¹ but school prayers are not.¹² Displaying religious symbols on public property is sometimes constitutional¹³ and sometimes not.¹⁴

It is not clear whether and when the Free Exercise Clause is to be interpreted negatively, i.e., as “what the government cannot do to the individual,” or positively, i.e., as “what the individual can exact from the government.”¹⁵ Nor is it obvious whether the Establishment Clause prohibits state sponsorship of any religion or allows its equal support of all religions. Distinctions and tests have emerged, only to be undermined by competing ones, with little integration in legal doctrine or reasoned allocation to specific domains.

To make sense of this doctrinal incoherence, attention is often drawn away from the law to its environment, from jurisprudence to its social and political contexts. If eighteenth-century conflicts over tax collection for established Churches were born out of tensions among various Protestant sects, we are told, massive Catholic immigration and the advent of public education in the nineteenth century created conflicts over prayers in public schools and funding for Catholic schools. In the twentieth century, with the rise of the welfare state, the shift in public policy from assimilation to multiculturalism and accommodation of cultural differences, and the recent rise of politicized fundamentalist Christianity, myriad claims to religious accommodation and access of religious organizations to public funds have come to the fore. As the balances of force between and within various coalitions of Protestants, Catholics, Jews, practitioners of other religions and public secularists shifted and their policy preferences changed, the Court is said to have mostly followed suit.16 In other words, as the environment of the legal system changed, judicial responses to claims to religious freedom changed as well.

Notwithstanding the importance of demographic changes and shifting balances of power in producing variety in the legal system through legislation or litigation, this chapter draws attention to various social systems by reference to which this variety can be made meaningful and the ambiguous character of organizations. It begins with the doctrinal confusion around the public funding of religious organizations and discusses the inadequacy of result-oriented tests to reliably determine their system-reference. Next, it discusses the ambiguity surrounding state-sponsored religious expression in public fora. An account of the relative stability of the Court’s response to religious interventions in the public education system follows. Finally, it examines the Court’s response to claims to religious accommodation.

Public Funding

Direct and indirect public funding of religious organizations in the US is rooted in the British common law of charitable trusts and equity.¹⁷ Churches are exempt from tax. Collectively, charitable and non-profit religious organizations receive billions to offer various social services, from feeding the poor and sheltering the homeless to educating the young.¹⁸ The Court has handled this paradox (i.e., the categorical prohibition of establishment of religion, on the one hand; and the continued direct and indirect public funding of religious organizations, on the other) by emphasizing the extra-religious functions of such organizations and/or the individual (rather than organizational) character of the aid recipients. Absent a clear principle to determine in advance under what conditions such organizations are to be treated as religious institutions or social service providers, the Court has oscillated over their entitlement to public support. As a result, religious organizations have been able to secure public funds in the name of their extra-religious activities and at the same time enjoy exemptions from general rules in the name of religious freedom.

The majority observed the function of religious schools as primarily educational and only secondarily religious. In so doing, it changed the constitutional question from an Establishment Clause challenge into an Equal Protection one.19 Since the statute applied to public and non-profit private schools alike, and parents were free to send their children to either, the Court found no Establishment Clause violation. In fact, excluding the parents of children attending religious schools, the Court held, violated the Equal Protection Clause. If transportation costs to public and non-profit schools could be subsidized, the state could not discriminate between schools or students based on religion. The First Amendment, the Court held:

requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.²⁰

There was, however, an almost equally strong support on the bench for observing religious schools as part of the societal system of religion and denying them access to public funds. While the Constitution did “not deny the value or the necessity for religious training,” a dissenting opinion argued, it did “deny that the state can undertake or sustain [it] in any form or degree.”²¹ Another dissenting opinion emphasized the foundational role of religious education for the Church:

Catholic education is the rock on which the whole structure rests, and to render tax aid to its Church school is indistinguishable to me from rendering the same aid to the Church itself … we cannot have it both ways. Religious teaching cannot be a private affair when the state seeks to impose regulations which infringe on it indirectly, and a public affair when it comes to taxing citizens of one faith to aid another, or those of no faith to aid all.22

Thus, the modern era of Establishment Clause jurisprudence began with a split on the bench over the primarily educational or religious function of religious schools. There was also an implicit divide over the appropriate program for the correct application of the code “constitutional/unconstitutional.” The dissents in Everson followed a conditional program with an “if … then” structure. For them, if a school was religious, it was part of a Church; therefore, its direct or indirect public funding would violate the Establishment Clause. A bare majority, however, opted for a purposeful program, which involved speculation about potential outcomes of funding schemes. Giving primacy to the secular function of religious schools and following a purposeful program, Everson sent the Court down the slippery slope of determining which activities were secular enough to be supported by public funds and through which arrangements.

Transportation subsidies were followed by providing textbooks, equipment, remedial instruction, supplementary salary for teachers, etc. As new funding provisions introduced more variety into the legal system, the Court was left with little legal ground to consistently distinguish among them. To reconcile contradictory decisions, new distinctions were introduced, only to be superseded or abandoned in subsequent decisions, hence the continued oscillation and split decisions on the constitutionality of direct and indirect public funding of religious schools. While Everson insisted on the principle of no aid to religion and upheld the law as an aid only to parents, today that very principle has come under attack. There is strong support on the bench for equal distribution of aid to all religions in the name of neutrality among religions, and between religion and non-religion. Let us examine the Court’s arguments in some leading and landmark cases.

In 1948 the Court found Illinois’ use of public schools for religious instruction and its administration by the Public School Board during the school week a violation of the Establishment Clause.²³ Yet, when in 1952 New York City permitted its public schools to release students during school hours to attend religious centers for religious or devotional instructions, the majority (six Justices) found no fault.²⁴ The dissent rightly argued that if the program was not a political support of religion, New York could simply have shortened the school day and facilitated voluntary and optional attendance at religious centers. The fact that it did not do so was because many students would not go to church on their own volition. They were first deprived of their freedom for this period under state authority, and then were sent to church.25 Yet, since the program involved neither using public school buildings nor spending public funds, the Court failed to see how, in the context of compulsory schooling, the release time programs used the state’s coercive power to ensure attendance at religious centers. The Court argued that there was no constitutional requirement for “government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.”²⁶

In Board of Education v. Allen, the Court upheld a New York Education Law requiring local public school authorities to lend textbooks free of charge to all students in grades seven to 12, including those in private schools.²⁷ The dissent saw the New York Law as a “flat, flagrant, open violation of the First and Fourteenth Amendments”²⁸ and argued that, unlike bus fares, books went to “the heart of religious education,” which was first and foremost in the service of religion and not secular education.²⁹ Nonetheless, the Court again treated religious schools as part of the education system, emphasized their role in “secular education” and claimed that the beneficiaries were “parents and children,” not the schools.³⁰

This evaluation changed in Lemon v. Kurtzman, which ruled against providing salary supplements to teachers in religious schools.³¹ For the first time, a strong majority (seven Justices) recognized that parochial schools constituted “an integral part of the religious mission of the Catholic Church.” To reconcile this holding with Allen (which had upheld supplying religious schools with textbooks), the Court distinguished between textbooks and teachers. While the contents of textbooks were ascertainable, the Court held, teachers’ handling of subjects was not. The Court went further and spoke of an inherent “conflict of functions” between religious and secular aspects of education.³² To address this potential conflict of functions, Rhode Island had specifically required teachers in religious schools who were eligible to receive a salary supplement to teach only those courses and texts offered in public schools and not engage in religious instruction. Ironically, those very safeguards were found to be in violation of the Establishment Clause as they required “continuing state surveillance” to ensure restrictions were obeyed. In addition to “excessive and enduring entanglement between state and church” and undue political interference with the operation of religious schools, this could lead to “political divisions along religious lines” as partisans on both sides would begin to mobilize to further their cause through legislative bodies.33

After two decades oscillating between the educational and religious functions of religious schools, the Court acknowledged that what separated the Church from the state, rather than a “wall,” was “a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”³⁴ As state aid to religious schools was an “innovation” with potentially “self-perpetuating and self-expanding propensities,” especially when backed by “substantial political support,” the Court cautioned against taking steps that could set in motion a “downhill thrust … difficult to retard or stop.”³⁵ This, of course, was far from an imaginary risk.

In 1840, there were only 200 Catholic schools in the US. By 1964, the number had increased sixtyfold. Not only did 57 percent of the 9,000 Catholic parishes have Church schools, but, more importantly, those schools consumed between 40 and 65 percent of the parish’s total income. With constant conflict between Protestants and Catholics for the control of public schools and funding of parish schools, by 1900, 35 States had constitutional prohibitions against public funding of religious schools. In 1971, less than a half-dozen states lacked such provisions.³⁶

Nonetheless, instead of providing a clear principle to decide the primary system-reference of religious schools, Lemon v. Kurtzman gave rise to a three-pronged purposeful test, later known as the Lemon test, which stipulated that for legislative or administrative action involving religion to survive a constitutional challenge, it must: 1) have a secular purpose; 2) not have the primary effect of either advancing or inhibiting religion; and 3) not result in an excessive entanglement of government with religion. Failing to ground the decision primarily in ascertainable facts, the Lemon test only facilitated speculation and disagreement about anticipated outcomes of disputed provisions and permissible and impermissible entanglements between Church and State.

As the Court was dragged into more controversies for the resolution of which it had no firm legal ground, applying the Lemon test became increasingly discretionary.³⁷ But the tests that came to supplant it did little better. Without a clear principle and a conditional program to decide the entitlement of religious organizations to public support, whether and to what extent particular funding schemes and their stated goals advance or hinder religion remains a matter of speculation. Each oscillation produces ripple effects in the environment of the legal system, triggering more litigation and in due course requiring additional distinctions to reconcile a ban on the establishment of religion with continued public funding of religious schools.

For example, in School District of the City of Grand Rapids v. Ball, the Court struck down two Shared Time and Community Education programs instituted in 1976–7 in Michigan offering publicly funded classes in leased classrooms in non-public schools, all but one of which were religious.38 This included supplies, materials, equipment and salaries to teachers, often full-time employees of Catholic schools. Likewise, in Aguilar v. Felton, the Court found the use of federal funds³⁹ to pay salaries of public school employees providing remedial instruction to children from low-income families in parochial schools an indirect subsidy to religious schools, and thus unconstitutional.⁴⁰ Emphasizing the religious setting of instruction, the Court refused to put faith in individual teachers to keep apart the secular and religious dimensions of their services.

A practical effect of the decision was to deprive poor students attending many religious schools of remedial services available at public schools and at those religious schools that could offer such programs off-campus. So, rather than “religious/non-religious,” in practice “rich/poor” came to determine access to publicly funded remedial educational services. Aguilar was overruled in Agostini v. Felton.⁴¹ While the facts of the case had not changed, the Court held that the Establishment Clause jurisprudence since Aguilar “dictated” overruling it. This included upholding the provision of vocational rehabilitation services for blind students42 and sign-language interpreters for deaf students in religious schools and colleges.⁴³ These developments, the Court held, made clear that the Shared Time Program was not deemed “as a matter of law … to have the effect of advancing religion through indoctrination.”⁴⁴ What Aguilar had found impermissible (excessive surveillance, administrative co-operation and political divisiveness), Agostini declared unfounded. Thus, for the first time, the door was left open for direct public funding of religious schools. Three years later, in Mitchell v. Helms, a 6:3 plurality decision upheld making loans to religious schools under Chapter 2 of the Education Consolidation and Improvement Act of 1981.⁴⁵ This decision overruled Meek v. Pittenger⁴⁶ and Wolman v. Walter,⁴⁷ which had previously found unconstitutional the provision of instructional material, remedial educational and therapeutic services to religious schools due to the risk of their employment for religious purposes.

[I]f the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose … In short, nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs … This doctrine, born of bigotry, should be buried now.⁴⁸

If Everson began with the dual function of religious schools and tried to restrict aid to their secular function alone, Mitchell eliminated concerns with their religious function altogether. Everson’s principle of no aid to religious schools gave way to equal distribution of aid to religious and public schools. As long as tax support was distributed equally among schools serving the government’s secular purpose, the plurality held, inquiry into their religious beliefs was unnecessary and offensive. Finally, a 5:4 decision in Zelman v. Simmons-Harris upheld tuition aid in the form of vouchers to students attending public or private schools and tutorial aid to students enrolled in public schools.49 Here again the distinction between aid to individuals and aid to institutions came to the fore. Drawing on Muller v. Allen,⁵⁰ the Court called the program one of “true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals,” and thus not in violation of the Establishment Clause.⁵¹ With the voucher programs held constitutional, it may only be a matter of time before publically funded religious charter schools become the center of controversy.⁵²

While in this process the Court is said to have moved from “realism to formalism,” from “realistic assessment of facts,” to “formalities of private choice,”⁵³ the path from Lemon to Zelman is in fact a path from a purposeful program to a conditional one. Unlike Lemon, which conditions the decision on speculation about the future effects of a challenged statute or policy, Zelman only relies on the facts that are ascertainable at the time of the decision. According to Zelman, if a program has a secular purpose, aids individuals, and applies to all schools, then there is no Establishment Clause violation. Unless a principled ground for distinguishing religious schools from other non-profit private schools is articulated, Zelman’s conditional structure can pave the way for more consistent rulings in favor of direct and indirect public funding of religious schools.

The Court’s failure to provide this principle may cast doubt on the justiciabily of the question. Yet, to find this principle, the Court may not need to look much further than the internal operations of religious schools and their own criteria of inclusion/exclusion. If the primary criterion of access to an organization (as functionary or client) is religious affiliation and/or religious communicative competence, then that organization and its operations could be considered as primarily part of the societal system of religion. The scope of their administrative autonomy and legal entitlements and obligations could be decided accordingly. The same rationale could be used to determine the system-reference of specific organizational decisions, regardless of the religious or secular character of the organization. If the premises of a decision are religious, then that decision could be observed with reference to the societal system of religion. If the premises of a decision are not religious, then that decision would not be observed with reference to the societal system of religion, even though the organization making the decision could be religious. In other words, the Court can begin with the organization’s own way of making sense of the event and connecting it to its network of decisions, and see if the principle of selection and connection of communication is religious, economic, educational, etc.

Some elements of this approach can be observed in some of the Court’s rulings. For example, when Jimmy Swaggart Ministries, a non-profit religious corporation affiliated with the Assemblies of God Church, challenged California’s sales tax, a unanimous Court found for California. Sales tax, the Court held, “was no different from other generally applicable laws and regulations—such as health and safety regulations—to which appellant must adhere.”54 In other words, a sale was a sale regardless of its organizational setting, and in a functionally differentiated economic system, the law could not grant a premium to economic actors based on their religious beliefs.⁵⁵ Once engaged in market transactions, religious organizations were observed as economic actors subject to laws applicable neutrally to all buyers and sellers.

Nonetheless, not all transactions with an economic dimension are primarily economic communications. In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, a unanimous Court held that federal anti-discrimination law did not apply to churches’ employment of ministers. This “ministerial exemption” was granted because hiring ministers, “more than a mere employment decision,” involved “internal governance of the church,” in which government could not interfere.⁵⁶ Despite its market resonance, hiring and firing ministers was treated as primarily a religious event, not an economic one. Neither of these decisions determined the system-reference of the event arbitrarily. In the first case, what made the sale of merchandise by a religious organization a sale pure and simple was the fact that the organization would sell the merchandise to whoever had the ability to pay, and not solely to those who displayed particular religious devotion and competence. In the second case, however, despite paying ministers for their services, the Church used religious devotion and competence as the first criterion for employment.

The tax-exempt status of religious educational institutions, however, is more complex, as they emphasize both education and the particularly religious character of its content and delivery. Which is to be treated as primary in determining their tax-exempt status: conferring a public benefit or advancing religion, especially when the two come into conflict? Giving primacy to the former, in Bob Jones University v. U.S., the Court upheld the denial of charitable status, and thus tax exemption, to the University for denying admission to applicants engaged in interracial marriage or dating.57 To justify exclusion of students engaged in such practices, the University had relied on its religious mission and Biblical interpretations, whereas for the Court, it was its educational function that entitled the University to tax exemption. As racial discrimination was held incompatible with educational standards and fundamental principles of public policy, the University could not confer the public benefit for the sake of which tax exemption was granted. “The Government’s fundamental, overriding interest in eradicating racial discrimination in education” was held sufficiently compelling to “substantially outweigh” any burden “on petitioners’ exercise of their religious beliefs.”⁵⁸ In other words, despite the religious character of the University, the Court treated it as part of the societal system of education and found the use of race in its admissions policy an indication of its failure to perform its proper function.⁵⁹

Finding a principle to consistently determine the primary system-reference of organizations along functional lines is particularly urgent in view of the Court’s most recent decision, Burwell v. Hobby Lobby, in which for the first time a for-profit corporation was granted exemption from general laws on religious grounds.⁶⁰ In this decision, the Court did not rely on the First Amendment, but on the Religious Freedom Restoration Act (1993),61 and held that closely held corporations can be exempt from the contraceptive mandate of the Affordable Care Act, which requires employers to buy insurance to cover the cost of certain contraceptives for their female employees. This was the first time that the Religious Freedom Restoration Act was applied to corporations as persons, not only granting them exemption from federal laws but also allowing them to impose consequences of their owners’ religious beliefs onto employees. Parallel confusion persists with respect to state sponsorship of religious organizations’ access to public and quasi-public fora.

Access to Public Fora

The Court has consistently sided with the freedom of religious expression in public venues if such expression is attributable to private actors and the venue is accessible to all for expressive activity. For example, in Cantwell v. Connecticut, the Court reversed the conviction of a Jehovah’s Witness on the charge of breach of the peace for playing, without a license, a phonograph record attacking “all organized religious systems [particularly Catholicism] as instruments of Satan and injurious to man” on the street in a predominantly Catholic neighborhood. While, to ensure “public safety, peace, comfort or convenience,” the state could regulate the time and manner of such activities, conditioning them upon a license granted by a state authority, the Court held, was an undue burden on liberty as protected by the Constitution.⁶² In the same vein, Marsh v. Alabama reversed the trespassing conviction of a Jehovah’s Witness for distributing religious materials in a privately owned company town.⁶³ Although the Court spoke of balancing “the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion,” and giving primacy to the latter,⁶⁴ at issue was the ambiguous character of a company town: Whether it was to be considered primarily a company or a town, a private property or a public forum. The Court sided with the latter. Although the company had legal title to the town, it did not have the same dominion that a homeowner or a farmer has over his house or farm. Having allowed the public to use his property, albeit for his own advantage, the town owner had to abide by statutory and constitutional provisions that protected the right of the public.

Whether a corporation or a municipality owns or possesses the town, the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free.⁶⁵

Problems arise, however, if the expression can be attributed to the state and if the venue is not a traditional public forum, but a designated public forum that is to serve a particular or limited public (e.g., students). Here the Court has relied on various tests to decide the constitutionality of state-sponsored or private religious expression. As we shall see, the purposeful or result-oriented character of these tests has failed to produce consistency and coherence in adjudication. Such expressions are found to be constitutional either by denying their religious character, or in the name of tradition, religious neutrality and cultural pluralism. Only when all such attempts fail is a state-sponsored religious expression or display held unconstitutional.

The appeal to tradition is perhaps nowhere more apparent than in the institution of chaplaincy. In 1983, a 6:3 decision held the Nebraska legislature’s chaplaincy practice in accord with the Establishment Clause and the intention of its framers.66 The Court simply assumed that the framers of the Establishment Clause would not have authorized a practice violating it, thus ignoring the shifty ground of politics and the inadequacy of legislative action as a hallmark of constitutionality. This was particularly problematic in view of the known disagreements among members of the first Congress and ambiguities in the minds of its individual members, as was pointed out by the dissent.⁶⁷ Nonetheless, noting that its own sessions and those of lower courts begin with the invocation “God save the United States and this Honorable Court,” the Court used the weight of history and the test of time to excuse itself from subjecting chaplaincy to any of its own tests. If two centuries of chaplaincy in Congress and more than a century in Nebraska and other States had not established any religious denomination, there was no reason to believe it would do so now.

Thus, “a joint exercise of legislative authority by Church and State,” which not only provided “a significant symbolic benefit to religion” but had also proved in practice to be “politically divisive,” splitting the Nebraska legislature on issues of religion and religious conformity, was held constitutional.⁶⁸ The dissent rightly argued that, with increasing religious heterogeneity of the population, practices that were once acceptable can become objectionable and offensive to “the deeply devout and the nonbelievers alike,” and that chaplaincy, involving serious theological dimensions, could not be upheld on the ground that some “formulaic” prayers and mottos were still in use. Nonetheless, passing the test of time and not subject to any constitutional test, chaplaincy persists to this day in Congress, the Senate, many State legislatures and the military.69

On other occasions, however, the Court has relied on various tests to decide the constitutionality of religious expression in the public fora. For example, a 5:4 decision in Lynch v. Donnelly found the inclusion of a crèche or Nativity scene in Pawtucket, Rhode Island’s municipal Christmas display constitutional.⁷⁰ Citing Zorach v. Clauson,⁷¹ the Court spoke of the religious character of American people and the long history of state-subsidized religious holidays. Nonetheless, following the Lemon test, it denied the primarily religious effect of the display. The Court found no reason to believe that the display would advance religion more than tax-exemption for church properties, covering transportation costs of students to religious schools and providing the latter with textbooks. Likening the Nativity scene to the display of religious paintings in public museums and art galleries, the Court found it admissible as a depiction of the “historical origins” of Christmas “long recognized as a National Holiday.”⁷² Having lost their religious meanings, the Christmas display and the crèche were included in a public space with state sponsorship.

Needless to say, the Court’s account of the supposedly uniform and settled historical pattern of celebrating Christmas was far from accurate.⁷³ Nor was its museum analogy warranted. The dissent rightly noted that while religiously inspired material could be treated as art and literature and made the subject of exhibitions, academic instruction and research, a Christmas display was no art exhibition. What made this case hard was not so much the obscurity of principles of decision, but the familiarity and widespread agreeability of the Christmas holiday and the Court’s reluctance to disturb a community practice in place for decades. This reluctance has encouraged further requests to include religious symbols in such displays. Since then, the Court has been busy determining the presence or absence of state sponsorship of such symbols and its permissibility. Distinctions and tests have emerged and receded without yielding a stable principle to determine the system-reference of either the venue or the symbol.

A good example is a 1989 decision in which a fragmented Court held the display of a crèche inside the Allegheny County Courthouse unconstitutional, and the display of a menorah outside the City-County Building constitutional. The government, the Court held, could celebrate Christmas as a cultural phenomenon, a secular holiday, not a holy day. The religious meaning of the crèche and a prominent display of the words “Glory to God for the birth of Jesus Christ” turned the first display into an “unmistakable endorsement of Christianity.” The menorah, however, was seen to convey “a message of pluralism and freedom of belief during the holiday season,”74