Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-13-1997

ACLU NJ v. Schundler
Precedential or Non-Precedential:

Docket 95-5865,95-5866,96-5023




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                          ___________

               Nos. 95-5865, 95-5866 and 96-5023
                          ___________


AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, on behalf
          of its members; ROBERT LANDER; ADAM JACOBS;
          JOEL SOLOW; and ANN SORREL

                         vs.

BRET SCHUNDLER, in his official capacity as Mayor of
          the City of Jersey City, New Jersey; THE CITY
          COUNCIL OF JERSEY CITY, NEW JERSEY; CITY OF
          JERSEY CITY, NEW JERSEY

          Bret Schundler, the City Council of
               Jersey City, and the City of Jersey
               City, New Jersey,

                         Appellants No. 95-5865 and
                                No. 95-5866.

                          ___________


AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, on behalf
          of its members; ROBERT LANDER; ADAM JACOBS;
          JOEL SOLOW; and ANN SORREL

                               Appellants No. 96-5023

                         vs.

BRET SCHUNDLER, in his official capacity as Mayor of
          the City of Jersey City, New Jersey; THE CITY
          COUNCIL OF JERSEY CITY, NEW JERSEY; CITY OF
          JERSEY CITY, NEW JERSEY

                          ___________


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW JERSEY

                     (D.C. No. 95-cv-00206)

                          ___________


                               1
                        ARGUED AUGUST 7, 1996

       BEFORE:   NYGAARD, LEWIS and McKEE, Circuit Judges.

                     (Filed January 13, 1997)

                             ___________


Kevin J. Hasson (ARGUED)
The Becket Fund for Religious Liberty
2000 Pennsylvania Avenue, N.W.
Suite 3200
Washington, DC 20006

Attorney for Bret Schundler, the City Council of Jersey
          City, New Jersey, and the City of Jersey
          City, New Jersey


Ronald K. Chen
Rutgers Constitutional Litigation Clinic
Rutgers University School of Law
15 Washington Street
Newark, NJ 07102

David R. Rocah (ARGUED)
American Civil Liberties Union
2 Washington Place
Newark, NJ 07102

Attorneys for American Civil Liberties Union of New
          Jersey, Robert Lander, Adam Jacobs, Joel
          Solow and Ann Sorrel


                             ___________

                        OPINION OF THE COURT
                            ___________



LEWIS, Circuit Judge.
           Toward the end of each calendar year, people around the

world celebrate what has come to be known as "the holiday

season."   Some do so by adorning their lawns with various

religious or secular ornaments, which are usually intended to


                                 2
convey an individual's interpretation of the holiday season.

Thus, while some may subtly express an acknowledgement of the

season through a lighted tree or a candle in a window, others may

prefer a dazzling array of lights, ornaments, and a cast of

religious and secular characters.

          Although the Constitution provides no guidance on

matters of taste or aesthetics, it does provide protection for

citizens to erect even the most energy-consuming,

taste-challenged holiday display.    In particular, the Free

Exercise Clause guarantees the citizen's right to celebrate the

season's religious origins.   This right is reinforced by the

Establishment Clause, which prevents the government from imposing

its religious will upon its citizens.    Thus, while the individual

citizen can express himself or herself freely during the holiday

season through the display of religious symbols, the

Establishment Clause imposes constraints on the content of

government-sponsored holiday displays.    By restricting government

displays, the Establishment Clause prevents government from

sponsoring, celebrating, or endorsing religion.

          The uncertain contours of these Establishment Clause

restrictions virtually guarantee that on a yearly basis,

municipalities, religious groups, and citizens will find

themselves embroiled in legal and political disputes over the

content of municipal displays.   As a result, threats of municipal

display lawsuits and restraining orders have become almost as

much a part of the holiday season as last-minute shopping sprees.




                                 3
          In this case, we must determine whether the City of

Jersey City, New Jersey, should be permitted to erect a display

containing a crèche and a menorah on the lawn in front of its

City Hall.   We will affirm the district court's holding that the

City's original display of the crèche and the menorah violated

the Establishment Clause.    In addition, we will hold that the

district court applied the wrong standard to determine that the

City's second display, which added Santa Claus, Frosty the

Snowman, and a red sled to the crèche and menorah, did not

violate the Establishment Clause.

                                  I.

                    Facts and Procedural History

          Appellees and Cross-Appellants, the American Civil

Liberties Union of New Jersey ("ACLU") and four residents of

Jersey City brought this action against Appellants and Cross-

Appellees, the City of Jersey City (the "City"), its mayor and

its city council.   The ACLU sought to preliminarily and

permanently enjoin the City from erecting and maintaining a

holiday display containing a crèche and a menorah on the lawn

(also known as "City Hall Plaza") in front of its City Hall.      The

City has displayed the crèche and menorah in City Hall Plaza for

at least the past thirty years.       Both the crèche and menorah, as

well as the property on which the displays are located, are owned

by the City.

          Jersey City displays its crèche, a representation of

the Christian nativity scene, on the days immediately preceding

and following Christmas.    The crèche is a depiction of the day


                                  4
Jesus was born in a manger in Bethlehem.    The City's display is

approximately twelve feet long by eight feet wide and includes

replicas of Joseph, Mary, Jesus, and the Three Wisemen, as well

as traditional manger imagery such as farm animals and hay.     The

event depicted by the crèche has particular significance to the

Christian religion, which worships Jesus as the Son of God and

the Messiah.

          Jersey City displays its menorah, a nine-branched

candelabrum, during the Jewish holiday of Hanukkah.    A menorah is

used by Jews to commemorate the Miracle of the Oils, a seminal

event in Jewish history that took place during the rededication

of the Temple of Jerusalem.    The lighting of the menorah is the

central ritual of Hanukkah.    As the Supreme Court recognized in

Allegheny County v. ACLU, 

, 587 & n.33 (1989), in

contrast to the Christian celebration of Christmas, Hanukkah is

not one of the central religious holidays of Judaism.

          Jersey City customarily displays the menorah on the

Plaza lawn to the left of the main entrance to City Hall and the

crèche on the lawn to the right.     Because the Hanukkah festival

normally overlaps with the Christmas season, the menorah and

crèche are usually displayed at the same time.    In 1994, however,

when the present action was initiated, Hanukkah fell unusually

early on the calendar (November 28 to December 5).    Consequently,

the City took down the menorah display the day before it erected

the crèche.    The City also decorated an evergreen tree with

Christmas ornaments on the Plaza lawn on December 14.    Other than




                                 5
this tree, the crèche and menorah displays were unaccompanied by

any other traditional secular symbols of the holiday season.1

            The ACLU sent a letter to Jersey City Mayor Bret

Schundler asking the City to reevaluate its practice of

displaying religious symbols on public property.   In response,

the City erected a sign adjacent to its display in front of City

Hall on December 16, 1994, which read:    "Through this display and

others throughout the year, the City of Jersey City is pleased to

celebrate the diverse cultural and ethnic heritages of its

peoples."    Thus, when the ACLU initiated this lawsuit, the Jersey

City holiday display was comprised of a crèche, a Christmas tree,

and the sign.

            On December 21, 1994, the ACLU filed a complaint in the

Superior Court of New Jersey seeking a declaratory judgment and a

permanent injunction to prevent the City from displaying a

menorah and a crèche on the Plaza in front of Jersey City City

Hall during the winter holiday season.    In their five-count

complaint, the ACLU alleged violations of the First and

Fourteenth Amendments of the United States Constitution, as well


1.    It is unclear whether the district court was aware that the
1994 display contained the Christmas tree or whether it concluded
that the tree was too far removed from the crèche and the menorah
to be considered part of an integrated holiday display. See
Dist. Ct. Op. at 11-12. The Christmas tree is an evergreen tree
that stands on the City lawn. During the holiday season, the
City typically transforms the evergreen into a Christmas tree by
decorating it with lights and other ornaments. The district
court's possible confusion regarding the tree may have been
caused by the fact that the tree was not visible in the
photographs of the display that were entered into the record.
For whatever reason, the district court did not consider the tree
to be a component of the 1994 display.



                                 6
as three provisions of the New Jersey Constitution.2   The City

removed the action to federal district court.    On September 19,

1995, both parties moved for summary judgment.

          On November 28, 1995, the United States District Court

for the District of New Jersey issued an order granting the

ACLU's motion for summary judgment on counts one and three,

sustaining their claims based upon the Establishment Clause of

the First Amendment of the United States Constitution and the

Religious Preference Clause of the New Jersey Constitution.    ACLU

of N.J. v. Schundler, No. 95-206, 

, at *8 (D.N.J.

Nov. 28, 1995).   The district court entered a permanent

injunction prohibiting the City from "erecting the crèche and

menorah display described in the complaint in this action, or any

substantially similar scene or display at the front entrance of

the City of Jersey City City Hall or on other property owned,

maintained, or controlled by the defendants in their official

capacities."   ACLU of N.J. v. Schundler, No. 95-206 (D.N.J.

Nov. 28, 1995) (order granting injunction).

          On December 13, 1995, despite the district court's

injunction, Jersey City erected its annual holiday display in

front of City Hall.   The 1995 display consisted of the

traditional crèche and menorah but also included a four-foot tall
2.    The five counts are based on alleged violations of the
following: (1) the Establishment Clause of the First Amendment
of the United States Constitution; (2) the Equal Protection
Clause of the Fourteenth Amendment; (3) the Religious Preference
Clause of Article I, Paragraph 4 of the New Jersey Constitution;
(4) Article I, Paragraph 3 of the New Jersey Constitution; and
(5) Article I, Paragraph 5 of the New Jersey Constitution, the
state equivalent of the Federal Equal Protection Clause.



                                7
plastic figure of Santa Claus, a four-foot tall plastic figure of

Frosty the Snowman, and a red wooden sled.     Frosty and the sled

were placed on the same side of the Plaza as the crèche, and

Santa was placed near the menorah and the Christmas tree.     The

1995 version of the crèche was slightly different from the 1994

version.   The figures in the crèche were taken out of the manger

and placed in a circle to one side of the empty manager.     The

City Hall Plaza Christmas tree was also slightly different, as it

was decorated with Kwanzaa symbols in addition to the usual

lights and holiday ribbons.   This modified 1995 display was also

accompanied by two 20" x 30" signs bearing the City seal and the

statement:   "Through this display and others throughout the year,

the City of Jersey City is pleased to celebrate the diverse

cultural and ethnic heritage of its people."

           In response to the City's 1995 display, the ACLU

submitted applications to the district court for both a

preliminary injunction against further display of the menorah and

crèche and a judgment that the City was in civil contempt of the

injunction issued November 28, 1995.   On December 18, 1995, the

district court issued an order denying the ACLU's request for a

preliminary injunction and its petition for contempt.    The court

concluded that the addition of Santa and Frosty, as well as the

sled and the Kwanzaa symbols, brought the City's display into

compliance with the Establishment Clause.    The district court

thus modified its order of November 28, 1995, to require the City

to maintain the additional secular holiday exhibits (i.e.,
Frosty, Santa, and the sled) in order to remain in compliance



                                8
with the Establishment Clause.   ACLU of N.J. v. Schundler, No.

95-206 (D.N.J. Dec. 21, 1995) (order denying preliminary

injunction). The district court, in entering the order, stated:
I conclude that by making these additions defendants
          have sufficiently demystified the [holy],
          they have sufficiently desanctified sacred
          symbols, and they have sufficiently
          deconsecrated the sacred to escape the
          confines of the injunctive order in this
          case.


Tr. at 12.

          The City timely filed notices of appeal on December 20,

1995, from both the November 28 order and injunction, as well as

the December 18 order modifying that injunction.     The City

asserts that the district court erred by concluding both that its

1994 holiday display of a crèche and a menorah was

unconstitutional and that its 1995 holiday display was

constitutional as modified.   In other words, the City asserts

that both its unmodified 1994 display and its modified 1995

display were in compliance with the Establishment Clause.       On

January 4, 1996, the ACLU cross-appealed from the December 18,

1995 order denying their second application for injunctive

relief.   The ACLU maintains that both displays violate the

Establishment Clause of the First Amendment.

                                 II.

                The Supreme Court's Display Cases

          The Establishment Clause of the First Amendment

declares that "Congress shall make no law respecting an

establishment of religion."   U.S. Const. amend. I.    In the

Supreme Court's seminal modern Establishment Clause case, Everson


                                 9
v. Board of Education, 

, 15 (1947), the Court

recognized that "[n]either a state nor the Federal Government can

set up a church.    Neither can pass laws which aid all religions,

or prefer one religion over another."    The Court, paraphrasing

Thomas Jefferson, stated that the First Amendment "has erected a

wall between church and state."    

metaphor, however, overstates

the actual level of separation of church and state the Court has

required in its Establishment Clause jurisprudence.    The Court

has determined that government may acknowledge the nation's

religious heritage and that not every law or practice that

confers a benefit upon religious institutions is

unconstitutional.    See Committee for Pub. Educ. & Religious

Liberty v. Nyquist, 

, 760 (1973).3

          We have recognized that the much-maligned test arising

out of Lemon v. Kurtzman, 

(1971) (the "Lemon test"),

continues to provide the analytical framework courts must use to

determine whether a particular practice violates the

Establishment Clause.    ACLU of N.J. v. Black Horse Pike Regional
Bd. of Educ., 

(3d Cir. 1996) (in banc).   In Black

Horse Pike, we stated:
The Lemon test has been the subject of critical debate
          in recent years, and its continuing vitality
          has been called into question by members of
          the Supreme Court and by its noticeable
          absence from the analysis in some of the

3.    One commentator has noted that the Supreme Court's
Establishment Clause jurisprudence suggests that "the wall of
separation is about to resemble the one that divided Berlin --
demolished, yet ghostly and evocative." Ira C. Lupu, The Trouble
With Accommodation, 60 Geo. Wash. L. Rev. 743, 768 (1992).



                                  10
          Court's recent decisions (including Lee).
          Nevertheless, Lemon remains the law of the
          land, and we are obligated to consider it
          until instructed otherwise by a majority of
          the Supreme Court.

  The Lemon test is a three-pronged test requiring

the following:   (1) the statute or government practice must have

a secular purpose; (2) its practical effect must be one that

neither advances nor inhibits religion; and (3) the statute or

government practice must not foster "an excessive government

entanglement with religion."   

.

           The Supreme Court first applied the Lemon test to a

government-sponsored holiday religious display in Lynch v.

Donnelly, 

(1984).   In Lynch, a 5-4 decision, the

Court upheld the constitutional validity of a winter holiday

display maintained by the city of Pawtucket, Rhode Island.     The

display was situated in a private park.   The display itself was

owned by the city and included a crèche, a wishing well, a Santa

Claus house (with a live Santa), a Christmas tree, reindeer

pulling Santa's sleigh, candy-striped poles, a "Seasons

Greetings" banner, hundreds of colored lights, live carolers, and

cutout figures of a clown, an elephant, and a teddy bear.     

  The Court, applying the Lemon test, found that:    (1) the

display, because it contained secular as well as religious

symbols, had the legitimate secular purpose of recognizing and

celebrating a national holiday; (2) the crèche did no more to

advance or inhibit religion than the myriad government benefits

and endorsements previously held constitutionally permissible;




                                 11
and (3) there was no evidence of administrative entanglement of

religion.   

            Justice O'Connor's concurrence in Lynch focused

primarily on the second prong of the Lemon test.   She styled her

approach as an "endorsement test," which stated that

"[e]ndorsement sends 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."    

(O'Connor, J.,

concurring).    The context of the particular government practice

was at the core of Justice O'Connor's endorsement test.    She

stated:
Every government practice must be judged in its unique
          circumstances to determine whether it
          constitutes an endorsement or disapproval of
          religion. In making that determination,
          courts must keep in mind both the fundamental
          place held by the Establishment Clause in our
          constitutional scheme and the myriad, subtle
          ways in which Establishment Clause values can
          be eroded. Government practices that purport
          to celebrate or acknowledge events with
          religious significance must be subjected to
          careful judicial scrutiny.

(emphasis added).
            In Allegheny County v. ACLU, 

(1989), the

Supreme Court again considered the constitutionality of a

holiday display.    Allegheny County involved two different

displays.    The first display was a crèche located on the Grand

Staircase of the Allegheny County, Pennsylvania Courthouse.      

  The second display was a menorah placed next to a

Christmas tree and a sign saluting liberty, all of which were



                                 12
located just outside the Pittsburgh City-County Building.       

  The crèche display was surrounded by a fence and a

poinsettia floral frame and included small evergreen trees but

did not include traditional secular holiday figures.        The crèche

had at its crest an angel bearing a banner that proclaimed

"Gloria in Excelsis Deo," which translates to "Glory to God in

the highest."   

& n.5.    The menorah, on the other hand,

was placed next to a Christmas tree and a sign saluting liberty.

           The Court's decision in Allegheny County spawned

several opinions and two different holdings.    A 5-4 majority held

that the display of the crèche in the county courthouse violated

the Establishment Clause.   A 6-3 majority upheld the

constitutional validity of the display of a menorah next to a

Christmas tree outside the City-County Building.4

           Writing for the 5-4 majority, Justice Blackmun

discussed the Court's move away from Lemon toward a "refined

. . . definition of governmental action that unconstitutionally

advances religion."   

   Focusing on the word

"endorsement" put forth by Justice O'Connor's concurrence in

Lynch, Justice Blackmun concluded that:
The Establishment Clause, at the very least, prohibits
          government from appearing to take a position
          on questions of religious belief or from
          "making adherence to a religion relevant in
          any way to a person's standing in the
          political community."




4.    In Allegheny County, the ACLU specifically challenged the
display of the menorah, not the Christmas tree.




                                13


(citing 

(O'Connor, J.,

concurring)).

           Justices Blackmun and O'Connor represented the swing

votes.   Both Justices voted to allow the menorah and the

Christmas tree display and to disallow the crèche display.      To

pinpoint the Court's reasoning in permitting the menorah and

Christmas tree display while condemning the crèche display, we

must analyze the rationale of the swing votes.

           Justice Blackmun began his opinion (writing for the

majority) by recognizing that the crèche display at issue in the

case conveyed "praise to God in Christian terms [which] is

indisputably religious -- indeed sectarian -- just as it is when

said in the Gospel or in a church service."    

    Justice

Blackmun then distinguished Lynch, flatly rejecting the notion

that Lynch rendered crèche displays per se constitutionally

permissible.    On the contrary, Justice Blackmun emphasized that

nothing in the context of the display at issue detracted from the

crèche's religious message.    In addition, Justice Blackmun

recognized that the crèche sat on the Grand Staircase in the

courthouse, which was "the main and most beautiful part of the

building that is the seat of county government."    

     As

such,
[n]o viewer could reasonably think that it occupies
          this location without the support and
          approval of the government. Thus, by
          permitting the "display of the crèche in this
          particular physical setting," 

(O'Connor, J., concurring), the county
          sends an unmistakable message that it
          supports and promotes the Christian praise to
          God that is the crèche's religious message.



                                 14


  Thus, given the content and context of the crèche

display, Justice Blackmun, writing for the majority of the Court,

concluded that:
Lynch teaches that government may celebrate Christmas
          in some manner and form, but not in a way
          that endorses Christian doctrine. Here,
          Allegheny County has transgressed this line.
           It has chosen to celebrate Christmas in a
          way that has the effect of endorsing a
          patently Christian message: Glory to God for
          the birth of Jesus Christ. Under Lynch, and
          the rest of our cases, nothing more is
          required to demonstrate a violation of the
          Establishment Clause.

          Later in his opinion Justice Blackmun, no longer

writing for a majority of the Court, presented the reasons why he

voted to allow the menorah and Christmas tree display.       Justice

Blackmun recognized that government celebration of Christmas and

Hanukkah as religious holidays would violate the Establishment

Clause,5 but concluded that Allegheny County's display of a

Christmas tree and a menorah "recognizes that both Christmas and

Chanukah are part of the same winter-holiday season, which has

attained a secular status in our society."     

  His

conclusion was based largely on the fact that he considered the

Christmas tree to be a secular symbol due to the fact that "many

Americans place Christmas trees in their homes without

subscribing to Christian religious beliefs."    

Justice Blackmun also relied heavily on the spatial context of

the display, commenting that:

5.    In this discussion, Justice Blackmun stated that "[t]he
display of a menorah next to a crèche on government property
might prove to be 

n.61.


                                15
The tree, moreover, is clearly the predominant element
          in the city's display. The 45-foot tree
          occupies the central position beneath the
          middle archway in front of the Grant Street
          entrance to the City-County Building; the 18-
          foot menorah is positioned to one side.
          Given this configuration, it is much more
          sensible to interpret the meaning of the
          menorah in light of the tree, rather than
          vice versa. In the shadow of the tree, the
          menorah is readily understood as simply a
          recognition that Christmas is not the only
          traditional way of observing the winter-
          holiday season.

           In her concurrence, Justice O'Connor also focused on

the question of endorsement.   Reviving the endorsement test she

formulated in her concurrence in Lynch, Justice O'Connor

presented the reasons for treating the crèche in Lynch

differently from the crèche in Allegheny County:
In Lynch, I concluded that the city's display of a
          crèche in its larger holiday exhibit in a
          private park in the commercial district had
          neither the purpose nor the effect of
          conveying a message of government endorsement
          of Christianity or disapproval of other
          religions. The purpose of including the
          crèche in the larger display was to celebrate
          the public holiday through its traditional
          symbols, not to promote the religious content
          of the crèche. Nor, in my view, did
          Pawtucket's display of the crèche along with
          secular symbols of the Christmas holiday
          objectively convey a message of endorsement
          of Christianity.

. . .   I agree that the crèche displayed on the Grand
           Staircase of the Allegheny County Courthouse,
           the seat of county government, conveys a
           message to nonadherents of Christianity that
           they are not full members of the political
           community, and a corresponding message to
           Christians that they are favored members of
           the political community. In contrast to the
           crèche in Lynch, which was displayed in a
           private park in the city's commercial
           district as part of a broader display of



                                16
          traditional secular symbols of the holiday
          season, this crèche stands alone in the
          county courthouse. The display of religious
          symbols in public areas of core government
          buildings runs a special risk of making
          religion relevant, in reality or public
          perception, to status in the political
          community.

(O'Connor, J., concurring) (citations omitted)

(emphasis added).

          Justice O'Connor agreed with Justice Blackmun that the

menorah and Christmas tree display was constitutionally

permissible for "reasons which differ somewhat."   

Justice O'Connor, like Justice Blackmun, concluded that a

Christmas tree was a secular object but disagreed that the

menorah was largely secular in the context of the display.    She

viewed the menorah as "the central religious symbol and religious

object" of Hanukkah.   

  The question for her,

therefore, was whether "the Christmas tree is a predominantly

secular symbol and, more significantly, [whether it] obscures the

religious nature of the menorah and the holiday of Hanukkah."

this question, Justice O'Connor concluded:
By accompanying its display of a Christmas tree -- a
          secular symbol of the Christmas holiday
          season -- with a salute to liberty, and by
          adding a religious symbol from a Jewish
          holiday also celebrated at roughly the same
          time of the year, I conclude that the city
          did not endorse Judaism or religion in
          general, but rather conveyed a message of
          pluralism and freedom of belief during the
          holiday season. Although the religious and
          indeed sectarian significance of the menorah
          is not neutralized by the setting, this
          particular physical setting changes 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,


                                17
           negates any message of endorsement of that
           content.

(citations omitted).

           The Supreme Court revisited the Establishment Clause

recently in Capitol Square Review & Advisory Board v. Pinette,

___ U.S. ___, 

, 

(1995).    Again,

the Court produced several opinions purporting to present the

"correct" Establishment Clause analysis.   Capitol Square is

instructive to our analysis because, although it involves private

religious expression in a traditional open forum, the Court

indicated that it will likely apply an endorsement-test approach

to determine the constitutionality of a public religious display.

           In Capitol Square, the Court held that Ohio's denial of

the Ku Klux Klan's application to display an unattended cross on

the statehouse square could not be justified on the ground that

granting a permit would have violated the Establishment Clause.

Justice Scalia wrote for a 7-2 majority of the Court.    

  A second portion of Justice Scalia's opinion, in which he

rejected the application of Justice O'Connor's endorsement test

to the privately-sponsored cross display, was a plurality opinion

joined by Chief Justice Rehnquist and Justices Kennedy and

Thomas.   

  Justice O'Connor, joined by Justices

Souter and Brennan, wrote separately to apply the endorsement

test but concluded that a reasonable observer would not attribute

the religious message conveyed by the cross to the State.      

  Justice Stevens dissented, concluding that a reasonable

observer would normally assume that the placement of a symbol of



                                  18
religious character before a seat of government would convey a

message of state sponsorship.   

  Justice Ginsburg

also dissented, determining that the display of the cross would

have carried a message of endorsement by the State.    

          Justice Scalia, writing for the plurality,

distinguished Allegheny County and Lynch by stating:
In Allegheny County we held that the display of a
          privately-sponsored crèche on the "Grand
          Staircase" of the Allegheny County Courthouse
          violated the Establishment Clause. That
          staircase was not, however, open to all on an
          equal basis, so the County was favoring
          sectarian religious expression. We expressly
          distinguished that site from the kind of
          public forum at issue here, and made clear
          that if the staircase were available to all
          on the same terms, "the presence of the
          crèche in that location for over six weeks
          would then not serve to associate the
          government with the crèche." In Lynch we
          held that a city's display of a crèche did
          not violate the Establishment Clause because,
          in context, the display did not endorse
          religion. The opinion does assume . . . that
          the government's use of religious symbols is
          unconstitutional if it effectively endorses
          sectarian religious belief. But the case
          neither holds nor even remotely assumes that
          the government's neutral treatment of private
          religious expression can be unconstitutional.

(citations omitted).
          Although the plurality refused to apply the endorsement

test to the privately-sponsored cross display in Capitol Square,

it acknowledged that the endorsement test would be properly

employed to test the constitutionality of government speech.      

-49.   Writing for the plurality, Justice Scalia noted,

"[w]here we have tested for endorsement of religion, the subject

of the test was . . . expression by the government itself



                                19
. . . ."   

(citation omitted).   Thus, Capitol Square

indicates that at least a majority of the Court would apply an

endorsement test to determine the constitutionality of a

government-sponsored religious display on government property.

           In light of the Supreme Court's decisions in Allegheny

County and Capitol Square, we conclude that the endorsement test

is the proper analysis to apply to Jersey City's display of

religious symbols on city property.6   Under the facts of this

case, we need not reach the question debated by the members of

the Court in Capitol Square of whether the endorsement test

should be limited in application to government speech, because

the religious symbols at issue here are owned and displayed by

the city government on city government property.7




6.    Again, it is not our intention to depart from this Court's
recent pronouncement in ACLU of New Jersey v. Black Horse Pike
Regional Board of Education, 

, 1484 (3d Cir. 1996)
(in banc), that "Lemon remains the law of the land" as the
governing test for Establishment Clause cases. Rather, we merely
reiterate that in Establishment Clause challenges to religious
displays, the Supreme Court has emphasized that the endorsement
test -- a refinement of the "effects" prong of Lemon -- should be
the focus of our analysis.

7.    We do not mean to imply, however, that a display identical
to the one presented by Jersey City (if privately sponsored)
would necessarily withstand constitutional scrutiny. Rather, we
merely point out that the display at issue here does not fall
within the so-called exception to the endorsement test put forth
by the plurality in Capitol Square. See Capitol Square, 115 S.
Ct. at 2451 (O'Connor, J., concurring).




                                20
                              III.

                      The Original Display

          A.   Government Erection of a Crèche

          Under the endorsement test, a display violates the

Establishment Clause if, in its particular setting, the display

is "sufficiently likely to be perceived by adherents of the

controlling denominations as an endorsement, and by non-adherents

as a disapproval of their individual religious choices."

Allegheny 

.    In applying the endorsement

test to Jersey City's display, we must consider the particular

effects of its display of a crèche.

          One of the principles that emerges from the shifting

pluralities of Allegheny County is that government erection of a

crèche creates an inherent risk of perceived endorsement.      The

crèche, which depicts the event that lies at the very core of

Christianity, is an unambiguous religious symbol.8   Indeed,

Justice O'Connor in Allegheny County recognized that a crèche is

"the central religious symbol of the Christmas holiday."     

          A crèche represents the Christian belief that Jesus was

born to the Virgin Mary to lead humankind on a path toward

salvation and redemption. Yet Jersey City would have us believe

that the symbol of the crèche has achieved such a level of
8.    One commentator suggests that the Supreme Court's decisions
in the display cases are guided by their view of the messages
conveyed by particular religious symbols and whether these
symbols are "pure" or "ambiguous." Calvin R. Massey, Pure
Symbols and the First Amendment, 17 Hastings Const. L.Q. 369,
379-82 (1990).



                               21
secular status that it is religiously benign.    We are not so

persuaded.   The mere fact that a religious symbol is pervasively

displayed during the holiday season does not diminish its

religious significance.   A crèche unambiguously represents a

belief that is not universally shared by the citizens of this

country.   In fact, many citizens believe that Jesus may only be

understood as a Hebrew prophet.    For some devout observers of

their respective faiths, it is heresy to ascribe a divine

character or purpose to Jesus' life or death.    Indeed, as Justice

Brennan recognized in his dissent in Lynch, "[F]or Christians,

that path [toward salvation and redemption] is exclusive,

precious, and holy.   But for those who do not share these

beliefs, the symbolic reenactment of the birth of a divine being

who has been miraculously incarnated as a man stands as a

dramatic reminder of their differences with Christian faith."

(Brennan, J., dissenting).

           When government chooses to speak by erecting a crèche

on government property, the principles at the core of the

Establishment Clause are clearly implicated.    See Capitol 

("In Allegheny County, we held that the
display of a privately-sponsored crèche on the `Grand Staircase'

of the Allegheny County Courthouse violated the Establishment

Clause.    That staircase was not, however, open to all on an equal

basis, so the County was favoring sectarian religious

expression.").   By erecting a crèche itself, on city property, a

city sends a stronger message of endorsement of religion than

when it merely provides a forum for private religious speech.      In


                                  22
the former context, the government is effectively conveying the

message that "we celebrate the holiday season by recognizing the

birth of Christ."    As Justice O'Connor noted in Allegheny County,

"[T]he display of religious symbols in public areas of core

government buildings runs a special risk of making religion

relevant, in reality or in public perception, to status in the

political community."     Allegheny 

(O'Connor, J., concurring).    Accordingly, we conclude that Jersey

City's display of a crèche on City Hall Plaza -- the very seat of

Jersey City government -- conveyed a message of religious

endorsement.

             Further, we note that the expenditure of public funds

to erect and maintain a religious display directly implicates the

Establishment Clause.    Jersey City's display was erected and

maintained with public funds.     If a city taxpayer objected to the

religious display, he or she could not have opted out of

contribution to the display, even if fundamentally repugnant to

his or her own beliefs.    Of course, taxpayers often exercise

little control over how the government spends its money on a

daily basis, but the Establishment Clause presents unique

constraints on the expenditure of public funds for religious

purposes.9    Most importantly, the Establishment Clause requires

the government to remain neutral towards religion in its

expenditure of public funds.

9.    In recognition of these constraints, the Supreme Court has
acknowledged taxpayer standing in the Establishment Clause
context, while rejecting taxpayer standing in others. See Flast
v. Cohen, 

(1968).




                                  23
             Here, Jersey City expressed a religious preference by

erecting a religious display through the expenditure of taxpayer

dollars.10    Moreover, by using taxpayer dollars to fund a display

containing religious symbols, Jersey City has increased the risk

that the display's religious message will be attributed to the

city and its taxpayers.     In other words, Jersey City's use of

public funds to erect and maintain its display increased the

"risk of making religion relevant . . . to status in [Jersey

City's] political community."    Allegheny 

(O'Connor, J., concurring).

             Jersey City's display of a crèche was accompanied by a

menorah, a sign, and a Christmas Tree.    Jersey City maintains

that this context alters the message of endorsement conveyed by

the display of the crèche.    We disagree.   The menorah is a

religious symbol.    And when displayed with a crèche, the

menorah's religious significance is emphasized.     Moreover, the

token inclusion of the Christmas tree does little to mitigate the

religious message of the crèche and the menorah.    Thus, the

display cannot be viewed as anything but a constitutionally

impermissible dual endorsement of Christianity and Judaism.

             Read together, Lynch, Allegheny County, and Capitol
Square emphasize the importance of perceived government

endorsement of religion in Establishment Clause analysis.       A


10.   For an interesting discussion of the Establishment Clause
implications of using taxpayer dollars to fund religious
displays, see generally Jesse H. Choper, Securing Religious
Liberty: Principles for Judicial Interpretation of the Religion
Clauses (1995).




                                  24
comparison of Jersey City's display with the displays involved in

Allegheny County and Lynch reinforces the conclusion that Jersey

City's original display impermissibly endorsed religion.     In

Allegheny County, a privately-owned nativity scene was displayed

on the main staircase of the county courthouse, bounded by a

wooden fence, poinsettias, and a plaque stating "This Display

Donated by the Holy Name Society."    Allegheny 

.   Thus, even with a sign proclaiming private ownership of the

display, the Court held that the display, in its context (on the

grand staircase of the Allegheny County Courthouse), communicated

state endorsement of religion.   In Lynch, the government-owned

and maintained crèche was part of a "winter wonderland" display

and was situated in a privately-owned park not located near any

visible seat of government.   Because there were no external

indicia of government sponsorship of the crèche, the risk of

perceived endorsement was significantly lessened.    And in Capitol

Square, the Court upheld the constitutionality of the display of

a privately-sponsored cross in a public square because the

government was not "sponsoring" the speech.

          In this case,   Jersey City not only owned and

maintained the crèche but chose to erect it on City Hall Plaza --

the very seat of Jersey City government.    Moreover, the sign that

accompanied the display proudly proclaimed that the display was

sponsored by Jersey City.   Like the crèche in Allegheny County,
the crèche and the menorah were located prominently at the

visible seat of government power.     The City placed the display

such that all visitors to City Hall were confronted with


                                 25
prominent religious symbols.   The Establishment Clause prohibits

the government, when speaking, from expressing favoritism towards

a particular religion.   By using the City Hall Plaza as a forum

from which to communicate its endorsement of Christianity and

Judaism, Jersey City violated the Establishment Clause.11

          B.   The City's Diversity/Pluralism Justification

           The City maintains that its celebration of many

different religions throughout the year should be considered the

"context" in which the crèche and the menorah should be viewed,

effectively converting its religious displays from "endorsement

of religion" into a "celebration of diversity."

           There are three reasons why the City's

diversity/pluralism justification fails to pass constitutional

muster.   First, notwithstanding Justice O'Connor's recognition of

the values of religious pluralism in Allegheny County, government

endorsement of one or any number of different religions is

unconstitutional.   Second, a reasonable observer cannot be

presumed to be aware of the various religious and cultural

celebrations that take place throughout the year in Jersey City.

 Third, the City's policy of celebrating many different

religions, while perhaps laudable, is a classic example of



11.   The ACLU also challenged the constitutionality of the
display under the New Jersey Constitution. In interpreting the
New Jersey Establishment Clause, New Jersey courts have relied on
Federal Establishment Clause jurisprudence. See Ran-Dav's County
Kosher, Inc. v. State, 

, 1358 (N.J. 1992). Thus, we
need not consider separately whether the displays are consistent
with the New Jersey Constitution.



                                26
government entanglement with religion.      We will discuss each of

these points in detail below.

          (1)   Endorsement of More Than One Religion

          The City, in support of its diversity/pluralism

justification, relies on the following language from Justice

O'Connor's concurrence in Allegheny County:
By accompanying its display of a Christmas tree -- a
          secular symbol of the Christmas holiday
          season -- with a salute to liberty, and by
          adding a religious symbol from a Jewish
          holiday also celebrated at roughly the same
          time of the year, I conclude that the city
          did not endorse Judaism or religion in
          general, but rather conveyed a message of
          pluralism and freedom of belief during the
          holiday season.

                                * * *

A reasonable observer would, in my view, appreciate
          that the combined display is an effort to
          acknowledge the cultural diversity of our
          country and to convey tolerance of different
          choices in matters of religious belief or
          nonbelief by recognizing that the winter
          holiday season is celebrated in diverse ways
          by our citizens. In short, in the holiday
          context, this combined display in its
          particular physical setting conveys neither
          an endorsement of Judaism or Christianity nor
          disapproval of alternative beliefs, and thus
          does not have the impermissible effect of
          "mak[ing] religion relevant, in reality or
          public perception, to status in the political
          community."


Allegheny 

(quoting 

(O'Connor, J., concurring)).      The City maintains that

Allegheny County stands for the proposition that government

celebration of different religions is not in fact "endorsement"

of religion that runs afoul of the Establishment Clause.




                                 27
            The City misreads Justice O'Connor's emphasis on

pluralism and diversity.    The menorah in Allegheny County, while

viewed by Justice O'Connor as a religious symbol, was placed next

to a Christmas Tree, which the Court (including Justice O'Connor)

considered a secular symbol.    Thus, Justice O'Connor concluded

that the display, in context, endorsed neither Judaism or

Christianity.    The secular nature of the Christmas tree,

concluded Justice O'Connor, converted the display into a

celebration of diversity and pluralism and distinguished it from

an endorsement of religion.

            But it is important to note that Justice O'Connor's

pluralism/diversity justification for the menorah and Christmas

tree display in Allegheny County was not based on the fact that

two different religions were represented in a display.     She

emphasized that the Christmas tree created a secular context

emphasizing diversity and pluralism.    It remains clear that

government celebration of one particular religion, or even more

than one religion, can constitute government endorsement of

religion that violates the Establishment Clause by "sending a

clear message to nonadherents that they are outsiders or less

than full members of the political community."    Allegheny 

(O'Connor, J., concurring).    We do not suggest

that all government celebrations of diverse cultures need be free

of all religious content.    Indeed, such celebrations would likely

be impossible given religion's inherent role in many different

cultures.   We merely recognize that government celebration of

more than one religion cannot magically transform a government


                                 28
endorsement of religion into a secular "celebration of diversity

and pluralism."

          (2)     The Perspective of the "Reasonable Observer"

          The City argues that the reasonable, informed observer

of the original Jersey City display should be presumed to be

aware of the City's year-round celebration of different cultures

and religions.    According to the City, it should be apparent to

such an informed observer that the display is a celebration of

culture and not an endorsement of religion.

          In discerning here the viewpoint of the "reasonable

observer" we are asked to consider whether the observer is aware

of the "history and context" of the challenged government

activity.12   Justice O'Connor, for one, has not hesitated to

impute a significant amount of knowledge of "history and context"

12.   Although we agree with the City that the endorsement test
necessarily focuses on the perception of some formulation of a
"reasonable observer," we note the nearly impossible task of
giving content to the hypothetical reasonable observer in our
multicultural society. In his dissent in Allegheny County,
Justice Brennan identified the risk of subjective construction of
the viewpoint of the "reasonable observer":

      I shudder to think that the only "reasonable
          observer" is one who shares the particular
          views on perspective, spacing, and accent
          expressed in Justice Blackmun's opinion, thus
          making analysis under the Establishment
          Clause look more like an exam in Art 101 than
          an inquiry into constitutional law.

Allegheny 

(Brennan, J., dissenting).
      Indeed, in Capitol Square the concurring and dissenting
Justices struggled over the definition of "reasonable observer,"
disagreeing over just how informed a reasonable observer needed
to be. See Kathleen M. Sullivan, Parades, Public Squares and
Voucher Payments: Problems of Government Neutrality, 

.
Rev. 243, 252-53 (1996).




                                  29
to the reasonable observer.    See Capitol 

(O'Connor, J., concurring); Wallace v. Jaffree, 

,

76 (1985) (O'Connor, J., concurring).

            Justice Stevens, in contrast, has rejected Justice

O'Connor's "ideal" reasonable observer, finding her conception to

be more akin to a "well-schooled jurist" than a mere reasonable

observer.   Capitol 

n.5 (Stevens, J.,

dissenting).    Explicitly rejecting the assumption that reasonable

viewers are aware of the history of the public forum at issue,

Justice Stevens noted that Justice O'Connor "apparently would not

extend Establishment Clause protection to passers by who are

unaware of Capitol Square's history."     

n.14.

            Moreover, several courts of appeal have refused to

allow the "history and context" of a practice to trump an

otherwise clear endorsement of religion that would be apparent to

a so-called reasonable observer.      See Robinson v. City of Edmond,

, 1232 (10th Cir. 1995) ("[A]n appeal to history

. . . is indeed an argument which could always `trump' the

Establishment Clause, because of the undeniable significance of

religion and religious symbols in the history of many of our

communities."); Ellis v. City of La Mesa, 

, 1525-26
(9th Cir. 1993) (refusing to consider the "historical

significance" of a municipality's display of a cross in a city

park); Harris v. City of Zion, 

, 1415 (7th Cir.

1991), cert. denied, 

(1992) (striking a city seal

containing Christian symbols and concluding that "[n]o appeal to




                                 30
history can abate [a sectarian] message when the images in the

seal are abstract symbols of a particular Christian sect").

          We agree with Justice Stevens that assuming the

reasonable observer is aware of "history and context" when

viewing a municipality's religious display is "a highly unlikely

supposition."    Capitol 

(Stevens, J.,

dissenting).    In our view, when testing for endorsement, we must

take into account the perspective of those citizens within the

community who hold minority religious views.13

          Thus, we cannot agree that an observer of the display

who is a new resident to Jersey City, has no understanding of the

history of the community, but has a strong sense of his or her

own faith, a faith not depicted in the display, is somehow less

"reasonable" an observer than the Christian or Jewish observer

who has lived in Jersey City for twenty years.    It follows that

this new resident of Jersey City should be entitled to no less

Establishment Clause protection than a long-time resident.

          Accordingly, we conclude that the reasonable observer
of Jersey City's display cannot be presumed to have knowledge of

Jersey City's different cultural and religious celebrations.     The

City argues that the "reasonable observer" sees a "time lapse

photograph" depicting Jersey City's various celebrations.    This

is a view that departs from reality.    A reasonable observer of

13.   For further discussion of this point, see Kent Greenawalt,
Quo Vadis: The Status and Prospects of "Tests" Under the
Religion Clauses, 8 Sup. Ct. Rev. 323, 374 (1995) (noting that
the reasonable observer "should have only an ordinary amount of
knowledge of the law and of the history of symbols in public
places").



                                 31
Jersey City's display stands before City Hall, flanked by two

religious symbols:    the crèche and the menorah.    There are no

other visual components, other than the sign proclaiming the

City's celebration of diversity, that can give the observer the

"time-lapse photograph" effect.14      A general awareness of the

City's celebration of diversity throughout the year is obscured

by the physical presence of the symbols of Christianity and

Judaism before City Hall.

          (3)    Entanglement

          The City also argues that its erection of the crèche

and the menorah are part of an overall plan to celebrate

different religions and cultures.      This argument must also fail.

 Put simply, Jersey City has pursued a quintessential type of

government action that "fosters an excessive entanglement with

religion."    Lemon v. Kurtzman, 

, 613 (1971).

             In Aguilar v. Felton, 

(1985), the Court

reaffirmed the continuing vitality of the "excessive

entanglement" prong of the Lemon test.      Aguilar involved a

challenge to New York City's provision of funding for public

14.   Counsel for the City rely heavily on the "secularizing"
power of the sign accompanying the display. Again, the sign
read, "[t]hrough this display and others throughout the year, the
City of Jersey City is pleased to celebrate the diverse cultural
and ethnic heritages of its peoples." See City Br. 17; City
Reply Br. 11; Oral Arg. Tr. 20, 22, 58, 63, 66. The Supreme
Court has recognized, however, that "no sign can disclaim an
overwhelming message of endorsement." Allegheny 

. We conclude, therefore, that the sign cannot
"secularize" the display, or dilute its message of endorsement,
merely because it conveys to the reasonable observer that the
City engages in year-round celebrations of different cultures and
religions.



                                  32
school instructors who taught remedial classes to private school

students in private school classrooms.   An overwhelming majority

of the participating private schools were religiously affiliated.

 New York City adopted a supervisory system designed to monitor

the classes to ensure that public funds were not used to

inculcate religious beliefs.   In holding that New York City's

program violated the Establishment Clause, the Court stated:
This pervasive monitoring by public authorities in the
          sectarian schools infringes precisely those
          Establishment Clause values at the root of
          the prohibition of excessive entanglement.
          Agents of the city must visit and inspect the
          religious school regularly, alert for the
          subtle or overt presence of religious matter
          in Title I classes. In addition, the
          religious school must obey these same agents
          when they make determinations as to what is
          and what is not a "religious symbol" and thus
          off limits in a Title I classroom. In short,
          the religious school, which has a primary
          purpose of the advancement and preservation
          of a particular religion must endure the
          ongoing presence of state personnel whose
          primary purpose is to monitor teachers and
          students in an attempt to guard against the
          infiltration of religious thought.

(citation omitted) (emphasis added).

          Even if we were to conclude that the City could avoid

the "endorsement" of religion by implementing its plan to

celebrate many different religions and cultures, it could not

avoid an excessive entanglement with religion in the

implementation.   Such a plan would necessitate judgments

regarding which religious and cultural holidays to celebrate,

which religious and cultural symbols appropriately conveyed the

proper non-sectarian message, and decisions regarding the

relative importance and cultural components of different


                                33
religions.    In carrying out this plan, Jersey City Mayor

Schundler would have to address significant questions regarding

specific religions:    Should a rabbi and a priest be consulted

when erecting the menorah and the crèche?    Should a ceremony

accompany the erection of these religious symbols?    Should the

City employ a Muslim cleric during Ramadan Observance Month to

avoid offending a theological protocol of Islam?15

             Another troubling aspect of entanglement pinpointed by

the Court in Aguilar is the very proper and legitimate concern

that governmental involvement in such decisions will alienate

certain members of the political community.    The Court commented

that:
The numerous judgments that must be made by agents of
          the city concern matters that may be subtle
          and controversial, yet may be of deep
          religious significance to the controlling
          denominations. As government agents must
          make these judgments, the dangers of
          political divisiveness along religious lines
          increase.

.



15.   Our analysis does not require consideration of the motives
of Mayor Schundler himself. Our concern runs deeper and is
focused on the dangers associated with placing the power to make
religious judgments in the hands of government officials. On
this point, we remain guided by Justice Black, who wrote:

      The Establishment Clause thus stands as an
          expression of the principle on the part of
          the Founders of our Constitution that
          religion is too personal, too sacred, too
          holy, to permit its "unhallowed perversion"
          by a civil magistrate.

Engel v. Vitale, 

, 432 (1962).



                                  34
            Jersey City, in implementing its plan to celebrate the

diversity and pluralism of various religions and cultures, would

obviously encounter the types of decisions that would produce

political divisiveness.   Many adherents of religions other than

Christianity and Judaism would likely feel politically alienated

if the City were unwilling to erect a display commemorating their

particular religion.   Moreover, the City's continuing role in

deciding how to celebrate various religions will be, in reality,

inevitably guided by politics.    For example, it would be unlikely

that Mayor Schundler (or any other head of a municipality) would

erect a display that would offend a majority of his

constituents.16   That such a political calculation is possible

confirms that these types of religious judgments should not be

placed in the hands of an elected official.

            Thus, we conclude that the City's plan to celebrate

many different religions and cultures would amount to a

constitutionally impermissible entanglement of government and

religion.

                                 IV.

   The Second Display (adding Santa, Frosty, and the Red Sled)

            The district court, in its December 21, 1995 order,

permitted Jersey City's display of a crèche, a menorah, Frosty




16.   Justice Powell identified this as a concern in his
concurrence in Aguilar, commenting that "[i]n States . . . that
have large and varied sectarian populations, one can be assured
that politics will enter into any state decision to aid parochial
schools." 

(Powell, J., concurring).



                                 35
the Snowman, Santa, and a red sled.    As we noted earlier, the

district court stated:
I conclude that by making these additions defendants
          have sufficiently demystified the [holy],
          they have sufficiently desanctified sacred
          symbols, and they have sufficiently
          deconsecrated the sacred to escape the
          confines of the injunctive order in this
          case.


Tr. at 12.    The district court modified its November 28 order by

requiring Jersey City to maintain the additional secular figures

(Frosty and Santa) in the display.     If Frosty, Santa, and/or the

sled were stolen or destroyed, they were to be replaced within

twenty-four hours.

            Without opinion, the district court apparently

determined that the presence of Frosty, Santa, and a sled

cleansed the display of its sectarian qualities.    In so holding,

the district court summarily concluded that the modified display

was constitutional under Lynch and Allegheny County.     ACLU of

N.J. v. Schundler, No. 95-206 (D.N.J. Dec. 21, 1995) (order

denying preliminary injunction).

             This summary conclusion is particularly troubling given

the Supreme Court's emphasis in Lynch and Allegheny County on the
importance of analyzing the specific context of the challenged

display.    The district court offered no assessment of the

demystifying powers of Frosty the Snowman or Santa Claus, or even

the sled.    That is, the court did not explain how the context of

the second display "demystified" the impermissible religious

content (the crèche and menorah) of the original display.

Moreover, we are puzzled as to the origin of the district court's


                                  36
"demystification" (or "desanctification") analysis.    Under

Allegheny County, the relevant analysis focuses on whether the

content and context of the display would convey a message of

government endorsement of religion.    While true that the Court in

Allegheny County found the menorah and Christmas tree display to

convey a secular message, the Court has never suggested that the

demystification powers of certain secular figures could diminish

the religious message conveyed by sectarian symbols.17    As such,

we conclude that the district court erred in determining that the

constitutionality of the modified display depended on whether the

presence of Frosty and Santa "demystified" the crèche and the

menorah.18

             We also note that, in our view, Allegheny County does

not compel the result reached by the district court.     Allegheny

County did not create a per se rule that a "secular" symbol

placed next to a "religious" symbol is constitutional.    The

content of the Allegheny County display was arguably secular.

While Justice O'Connor recognized that the menorah is a religious


17.   If adopted, the district court's "demystification" approach
would lead federal courts and municipal officials to engage in an
ad hoc, arbitrary, constitutional guessing game over the relative
secularizing "power" of individual symbols. For example, a city
mayor would be forced to decide whether the addition of a plastic
candy cane would be enough to bring a crèche display in
compliance with the Establishment Clause, or whether he or she
would also need to add a string of lights. As a practical
matter, we find it unlikely that these difficult questions of
constitutional magnitude can be solved by a plastic Santa or
Frosty.

18.   We note that both the ACLU and the City agree that the
district court's "demystification" approach was flawed. ACLU Br.
at 38; City Br. at 15.



                                  37
symbol, she also recognized that a depiction of a Christmas tree

and a menorah may invoke an image of different individuals

celebrating the holidays at the end of the calendar year.

Allegheny 

(O'Connor, J., concurring).

This time of year is, at least in this country, widely regarded

as "the holiday season."   Thus, Justice O'Connor recognized that

a Christmas tree and a menorah, in the context they were

presented in Allegheny County, endorsed only a secular

recognition of the holiday season.    

-36.

           Government display of a crèche, on the other hand,

cannot convey a meaning separate from the very act it is meant to

portray.   A crèche depicts the Birth of Christ, the event that

lies at the foundation of Christianity.    In Allegheny County, the

Court determined that displays containing a crèche as a primary

focal point, which are situated at the seat of government, are

constitutionally impermissible as they convey a message of

government endorsement.    This is consistent with Lynch, in which

the Court permitted a crèche that was part of a display in a

private park depicting a "winter wonderland" scene because, in

context, there were no external indicia of government

endorsement.

           As we have discussed, the Supreme Court, in its myriad

of approaches in the display cases, has repeatedly emphasized the

importance of examining the context of the display at issue to

determine whether it has the effect of endorsing religion.      In

ACLU of New Jersey v. Black Horse Pike Regional Board of
Education, we discussed Allegheny County and Lynch to illustrate



                                 38
"the importance of the context of a challenged practice" in

conducting an Establishment Clause analysis.   ACLU of N.J. v.

Black Horse Pike Reg. Bd. of Educ., 

, 1484 (3d Cir.

1996).   The context of Jersey City's second display is as

follows:   on one side, a large menorah stands about ten feet from

a four-foot plastic Santa and a Christmas tree decorated with

lights and Kwanzaa symbols; on the other side, the characters of

the crèche are huddled off to the side of a manger, with Frosty

in the background bearing witness and separated from the crèche

by a red sled.    The token additions of the secular symbols do

little to alter the "context" or the focal points of the City's

display.   We reiterate that Jersey City's display of the crèche

at the seat of City government power impermissibly conveyed a

message of government endorsement of religion.   And, in our view,

the City's addition of Santa, Frosty, and a red sled did little

to secularize that message.19


19.   The ACLU, in its brief, artfully addresses the district
court's Establishment Clause analysis by stating that:

      [A]t most, a reasonable observer would construe
          [Frosty and Santa] to be background witnesses
          to the Miracle of the Oils and the Birth of
          Christ, respectively. However confusing the
          presence of a snowman in Bethlehem may be
          from a canonical perspective, a reasonable
          observer informed of the history and context
          of religious displays in front of City Hall
          would invariably characterize them for what
          they

      are - attempts at evasion of constitutional prohibitions
          through superficial secular tokenism.


ACLU Br. at 17.



                                 39
            The difficulty presented by the district court's

hypertechnical Establishment Clause analysis is exacerbated by

its requirement in the injunction that Santa, Frosty, and the

sled were to be replaced within twenty-four hours if any of them

were removed from the display.    Apparently, the district court

found the constitutional "demystification" powers of Frosty,

Santa, and the sled to be so great that their absence for one day

would transform the display back into a government endorsement of

religion.    This reinforces the plain fact that the district court

was convinced that the presence of two, four-foot plastic

figurines of Frosty and Santa, along with a red wooden sled,

"demystified" the religious message conveyed by the City's

erection of a display commemorating the Birth of Christ and the

Miracle of the Oils.    We conclude that this simply cannot form

the basis of sound constitutional analysis.




                                 40
                               V.

          Accordingly, we hold that the City of Jersey City's

display of a crèche and a menorah on the lawn in front of its

City Plaza violated the Establishment Clause.   We also hold that

the district court erred in modifying the injunction based upon

its conclusion that the addition of Frosty, Santa, and a red sled

"demystified" the religious meaning of the crèche and the menorah

and rendered the display constitutional.   As such, we vacate the

district court's modified injunction order and remand the case so

that the district court can consider, consistent with the

standards set forth in this opinion, whether the modified display

was constitutional.




                               41
American Civil Liberties Union of New Jersey, et al. v. Bret
Schundler, et al. Nos. 95-5865, 95-5866 and 96-5023


McKee, Circuit Judge Concurring.


          I agree with the reasoning of my colleagues and

therefore join in their opinion. However, I think it necessary to

state that I think that our analysis here should be defined by

the parameters of Allegheny County v. ACLU, 

(1989);

Lynch v. Donnelly, 

(1984); and Lemon v. Kurtzman,

(1971). I do not think that Capitol Square Review &
Advisory Board v. Pinette, ___ U.S. ___, 

, 

(1995), assists us.

          In Capitol Square, a “10-acre, state-owned plaza

surrounding the Statehouse” in the capitol city of Ohio had been

“used for public speeches, gatherings, and festivals advocating

and celebrating a variety of causes, both secular and religious”

for over a century. 

      By statute, the square was



                                  42
available for use by “the public . . . for free discussion of

public questions, or activities of broad public purpose,” and the

Capitol Square Review and Advisory Board was given the

responsibility for regulating public access.   (internal

quotations omitted).   

That Board rejected a request

by Donnie Carr, the local leader of the Klu Klux Klan, to erect a

display consisting of an unattended cross, and Carr appealed to

the federal courts alleging a violation of the Constitution.    In

reviewing that decision, the Supreme Court limited itself to the

Establishment Clause issue even though Carr argued that the

state’s real reason for rejecting the request was its disapproval

of the Klan’s political views. Thus, the only issue the Court

discussed was the state’s right to limit private speech on public

property that had historically been used as an open public forum.

          The Court began its analysis by noting that

“[r]espondents’ religious display in Capitol Square was private

expression.” 

That expression was clearly entitled to

protection regardless of content. “[W]e have not excluded from

free-speech protections religious proselytizing. . . .” 

defended its rejection of the requested display by arguing

that it had an interest in avoiding official endorsement of

Christianity under the Establishment Clause. The Court relied in

part upon the “endorsement test” and its prior holding in

Allegheny and Lynch to reject that position.
          We find it peculiar to say that government
          ‘promotes’ or ‘favors’ a religious display by
          giving it the same access to a public forum
          that all other displays enjoy. . . . And as a
          matter of Establishment Clause jurisprudence,


                                43
          we have consistently held that it is no
          violation for government to enact neutral
          policies that happen to benefit religion.

Accordingly, I do not think that Capitol Square

illuminates our present inquiry. Our analysis does not involve

private speech. Rather, here, the City itself owned and erected

the display at issue.

          Nevertheless, as the majority quite correctly points

out, Lynch and Allegheny require the result we reach here today.

Furthermore, as my colleagues note, in Lemon, the Supreme Court

held that the Establishment Clause requires that state action 1)

have a secular purpose; 2) have a primary effect that neither

advances nor inhibits religion; and 3) avoid excessive government

entanglement with religion. Lemon, 

. I think my

colleagues’ analysis of Lynch and Allegheny establishes that the

first display is inconsistent with the prohibitions of Lemon and

properly remands to determine the legality of the second display.

Accordingly, I join the opinion with the reservations noted

herein.




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