On the same day (July 3, 1989) that the Supreme Court handed down its castigated and celebrated decision on abortion, it also ruled in the highly publicized "crèche-menorah" case (County of Allegheny v. American Civil Liberties Union). Both cases are glaring illustrations of the fragmented condition of our highest judicial body, which now seems able to achieve only marginal consensus on issues pertaining to our most fundamental freedoms. The Court in its abortion decision takes a significant step forward--toward reclaiming a lately lost American freedom (the right of our unborn to live). The Court in Allegheny takes an appalling stride backward, severely delimiting another fundamental American freedom--that of religion.
The County of Allegheny case involves a tale of two religious faiths engaged in public manifestations. Orthodox Jews, desiring to remind all people of the spiritual meaning of the religious feast of Chanukah, had undertaken to display, on the premises of Pittsburgh's City-County Building, a symbolic representation of the feast in the form of an 18-foot menorah, or nine-branched candelabrum. For the past six years, this display had been maintained for the three-week period in December encompassing the eight-day Jewish holiday of Chanukah. The menorah was owned by Chabad, a Jewish religious group. It was stored, annually erected, and removed by the city at taxpayers' expense.
Simultaneously, a religious display celebrating Christmas, sponsored of the past seven years by the Holy Name Society, a Catholic religious group, and erected and removed at its own expense, was being maintained during the Christmas season on the Grand Staircase of the Allegheny County Courthouse. This display consisted of a crèche, or scene in the manager, with figures representing Jesus, Mary, and Joseph and with an angel at its crest bearing a banner reading "Gloria in Excelsis Deo!"
The Supreme Court, responding to a suit brought by the American Civil Liberties Union, held the menorah to be constitutionally acceptable yet the crèche to violate the Constitution. A surprised public has asked two questions: Why did the Court treat the Christian exhibition differently from the Jewish? What was really wrong with either exhibition?
The reasoning of Justice Harry Blackmun, which carried the endorsement of a 5-4 majority, attempted to supply credible answers to those questions. As to both the crèche and menorah, Blackmun said that the First Amendment's establishment clause prohibits government's endorsing or promoting religion and that government endorses or promotes religion when it presents physical objects to send religious messages. Whether it is sending a religious message depends on whether the object is religious in character and whether its physical setting is one that will cause viewers to regard the object as conveying a religious message.
Having set up this "physical setting-eye of the beholder" test of constitutionality, Blackmun applied it to the menorah and the crèche. He pointed out that (1) the 18-foot menorah was situated next to a 45-foot Christmas tree (which, he said, "is not itself a religious symbol") and (2) at the foot of the Christmas tree was a sign bearing the mayor's name and containing 31 words comprising a secular "Salute to Liberty." These two factors, Blackmun reasoned, took the constitutional curse off the
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