Lynch v. Donnelly - Oral Argument

ORAL ARGUMENT OF WILLIAM F. MC MAHON, ESQUIRE, ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We will hear arguments this morning in Dennis Lynch against Donnelly.

Mr. McMahon, you may proceed whenever you are ready.

Mr. Mahon: Thank you, Mr. Chief Justice, and may it please the Court.

The issue in this case is whether the establishment clause prohibits a municipality from including a creche in a traditional and dominantly secular Christmas celebration.

The city of Pawtucket, Rhode Island, has for over 40 years sponsored an annual Christmas celebration.

It consists of parties, Christmas carols, the lighting and decoration of public buildings, and a display situated on the grounds of a museum in the center of the commercial area of the city.

The display, which is laid out over 40,000 square feet, consists of a wishing well, colored lights, a 40-foot high lighted spruce tree, figures of Santa Claus, a live Santa Claus, and various figures of stars and bells and lights and a large Season's Greetings, 48 feet long and lighted.

Included in this display, covering approximately 14O square feet out of the total 40,000 square foot area, is a creche.

Unidentified Justice: Has the creche been there for 40 years, used every year for 40 years?

Does the record show that?

Mr. Mahon: Yes, Justice, but the display has not been in that location for those 40 years.

It has been in this location since 1973.

Unidentified Justice: But a creche has been used for 40 years?

The record shows that?

Mr. Mahon: That is correct, Justice.

The creche consists of a small stable and approximately 15 figures ranging in height from one foot to five feet.

The District Court has permanently enjoined the city from continuing its practice of including the creche in its Christmas celebration.

It did so by applying the three-part test set forth by this Court in Lemon against Kurtzman, concluding that the city's sponsorship of the creche violated each portion of that test.

The Court of Appeals, by divided vote, affirmed, agreeing with the District Court as to the first two parts of the Lemon test, but further invalidating the city's sponsorship of the creche under the strict scrutiny analysis applied by this Court in Larson against Valente.

It is the position of the city before this Court that the public recognition of the nativity scene in the American Christmas is not a promotion of religion, but really is an acknowledgement of the religious heritage of the American Christmas.

In order to determine whether government--

Unidentified Justice: I am just curious as to one fact.

Was a stay order issued in this case, or an injunction?

Mr. Mahon: --A permanent injunction was issued, yes, Justice.

Unidentified Justice: And it is still in effect?

Mr. Mahon: That is correct, Justice.

Unidentified Justice: So that in... This concerned 1980, didn't it?

Mr. Mahon: That is correct.

Unidentified Justice: So that in 1981 and 1982 you had no creche?

Mr. Mahon: The city has not sponsored a creche.

The city transferred the creche to a private group under a conditional agreement dependent upon the injunction in this case, and if the injunction in this case were to be dissolved, then the city would reacquire the creche.

The private group has changed the location of the creche, but it is in the same area, but the city is enjoined from the practice of continuing it, and I might note that the record indicates that the particular creche in question had a useful life which was close to expiring and would probably have to be replaced in any event.

Unidentified Justice: Has it been on public property in the last two years?

Mr. Mahon: This has not been on public property, Chief Justice, since 1973.

The property in question is owned by the Slater Mill Museum Corporation, which operates the... has restored the old Samuel Slater cotton mill and operates it as a national museum.

It is submitted that in order to--

Unidentified Justice: Then the city sponsored creche from 1973 up until 1980 was basically not on city property, but the exhibits were put together by the city?

Mr. Mahon: --And owned by the city, Justice.

Unidentified Justice: And owned by the city.

Mr. Mahon: Yes.

But in 1981 and 1982, only the secular portions of the display have been owned and maintained by the city.

The city has had nothing whatever to do with the creche since this injunction was issued, and in fact the creche, while still in the same general area, has been moved.

It is submitted by the city that the distinction between the promotion of religion and the recognition of religion must be determined by examining the context in which the religious element is presented.

We respectfully submit that in this context the city is celebrating a legitimate national holiday and not promoting religious dogma.

Furthermore, we will contend that the Lemon test was inappropriately applied by the courts below because it was applied only to the creche, as though it existed in a vacuum, and it will be our submission that the appropriate focus for the Lemon test should be to the entire government activity and not really to the religious element contained within it.

This Court has frequently recognized that the traditions of the American people are saturated with religious influences.

As recently as the end of the last term, in March against Chambers, this Court sustained legislative prayer and legislative chaplaincies, noting that they have been imbedded in our traditions since the adoption of the First Amendment.

With respect to holidays, the Thanksgiving tradition also goes back to the First Congress, which requested President Washington to declare a day of national prayer and thanksgiving.

In McGowan against Maryland, this Court held that the recognition of Sunday as a day of rest was a legitimate public activity notwithstanding the fact that in so doing, it was aiding religions who attract worshippers on that day and who in fact receive some substantial portion of their financial support on that day.

Unidentified Justice: Mr. McMahon, is there anything we can refer to to let us know how long it has been the practice in this country for public bodies to have nativity scenes displayed?

Is there anything you can cite to us in that regard?

Mr. Mahon: Specifically, I cannot, Justice.

The recognition of Christmas began in the middle part of the last century.

1936... 1836 was the first recognition of the legal holiday.

In Rhode Island it was 1852.

It became a federally recognized holiday in 1870, and it was during that period that nearly all the states adopted Christmas a legal holiday, but specifically with respect to the use of the nativity scene, we have been unable to locate that data.

The creche is a symbol of Christmas which has been used by the American people together with stars and bells and Santa Claus and reindeer.

It has its origin--

Unidentified Justice: Haven't you noticed a lot of Christmas celebrations without creches?

Mr. Mahon: --That is correct, Justice.

Unidentified Justice: You keep saying they all go along together.

Mr. Mahon: Well, of course, any symbol of Christmas may be used alone.

Unidentified Justice: But this case is not aimed at all of the decorations, right?

Mr. Mahon: That is correct, Justice.

Unidentified Justice: This case is aimed at one item.

Mr. Mahon: That is correct.

Unidentified Justice: Well, why don't we talk about that one item without all of the others?

Mr. Mahon: Because that one item cannot be properly evaluated in terms of what it is doing without relating it to the overall celebration of which it is a part.

The creche--

Unidentified Justice: Mr. McMahon, do you think that for... a city could display a nativity scene alone without other displays such as Santa Claus and Christmas trees and so forth?

Mr. Mahon: --Well, obviously, Justice, that would be--

Unidentified Justice: In your view?

Mr. Mahon: --That would obviously be less secular than the record shown in this case.

However, the most important part of the context, we would submit, is Christmas itself, and any symbol of Christmas, including the creche, is a symbol of what is a national secular holiday.

A lone figure with Santa Claus does not represent one isolated item of Christmas.

It represents the entire Christmas holiday for what it is.

We respectfully submit that the District Court was in error in stating that the portions of the holiday celebration could be dissected.

They are integrated.

They become merged over the years, through the uses of the people.

Unidentified Justice: Mr. McMahon, what is your answer to Justice O'Connor's question, supposing there was nothing but a creche?

Mr. Mahon: My answer is, it would still be permissible, Justice, as a symbol of Christmas.

Unidentified Justice: So then we can ignore the remainder of the exhibit.

Mr. Mahon: No, Justice.

I think that in this case it is so clearly secular that the question as to... the lone question is not presented on this record.

However, were it presented, we would submit that it remains a legitimate symbol of Christmas.

In this case, however, it is so overwhelmed by secular symbolism that the question presented by Justice O'Connor is not before the Court.

The Christmas holiday, although it clearly has its origin in Christmas observance, is a secular folk festival.

The nativity scene is interwoven into the American celebration, but the American celebration is a combination of feasting and fraternizing and music and art and various types of socializing, and the religious portion of Christmas is simply one component of it, and it is a component that recognizes its religious heritage.

Unidentified Justice: Mr. McMahon, could the city display a cross for the celebration of Easter under your view?

Mr. Mahon: Justice, I think that, first of all, Easter is not a recognized public holiday, and the association of a cross with a specifically religious holiday might well implicate the promotion of religion.

I would point out, however, that even that is probably less religious than the Thanksgiving Day established by President Washington's proclamation in 1789, but I would say that absent that historical base, the cross specifically at Easter might well be a promotion.

However, I would point out that again it is a matter of context, because in the American cemetery in Normandy, for example, there are... it is filled with crosses and stars of David and other symbols.

The same is true in Hawaii on the beaches.

In many Memorial Day ceremonies the cross and the star of David and other religious symbols are employed.

So, we would submit that in the context which your question poses, Justice, it might well be a promotion, but nevertheless the cross and the star of David have legitimate secular uses depending on the context.

We, of course, concede that there are contexts in which the creche it elf used as a... in a religious exercise, obviously in a church, the creche could be a... its religious meaning could be isolated and accentuated.

It is the context which determines--

Unidentified Justice: What meaning does the creche have other than religion?

Mr. Mahon: --It is a symbol of Christmas, Justice.

It is a symbol of Christmas as the other secular symbols are.

Unidentified Justice: Recognized by all religions?

Mr. Mahon: No, but Christmas--

Unidentified Justice: I didn't think it was.

Mr. Mahon: --Christmas itself--

Unidentified Justice: It is one religion, isn't it?

Mr. Mahon: --Christmas itself is, Justice, yes.

Unidentified Justice: Christmas itself?

Mr. Mahon: The holiday of Christmas is a denominational holiday.

Sunday is a denominational day.

The recognition of Sunday in McGowan against Maryland was not inhibited by the fact that Sunday is a religious day only for certain denominations, and it is a benefit only to--

Unidentified Justice: You mean the other denominations other than Christians don't give presents, drink liquor, and have a ball on Christmas?

Mr. Mahon: --That is because it is secular, Justice, yes.

That is because--

Unidentified Justice: Well, now, a minute ago you said it was religious.

Now you say it is secular.

Mr. Mahon: --No, Justice, it is a dominantly secular holiday in its contemporary celebration.

It has religious roots and some religious components.

The religious components are part and parcel of the--

Unidentified Justice: My question is, according to your argument, is it religious or secular?

Mr. Mahon: --The holiday, Justice, or the creche?

Unidentified Justice: Either.

Mr. Mahon: The holiday is a dominantly secular holiday with a religious origin and some religious component.

The creche is a dual symbol.

It is a religious symbol and it is also a holiday symbol.

Which meaning predominates depends upon the setting.

In a setting where the religiousity is promoted, then the religious meaning of the symbol dominates.

In a setting--

Unidentified Justice: It is part religious.

Mr. Mahon: --Oh, certainly.

Unidentified Justice: According to you.

Isn't it?

Mr. Mahon: Certainly, Justice.

As is Christmas.

Unidentified Justice: And the state is giving money to a religion?

Mr. Mahon: The state is celebrating the traditions of the American people, Justice.

Unidentified Justice: Are they religious?

Mr. Mahon: Well--

Unidentified Justice: They are giving money to celebrating a religious event.

Mr. Mahon: --Well, perhaps in the same way that the practice of paid chaplaincies is giving money to subsidize that particular religious activity.

However, we would say it is not the subsidization of religion, but it is the subsidization of a secular national folk festival which contains a religious element.

It is... We respectfully submit that in applying the Lemon test, it is necessary to determine first what is the government doing.

It is our position in this case that the government is not promoting religion.

The government is celebrating Christmas.

And in applying the Lemon test to the record in this case, it is necessary to examine the entire government activity and to determine the function which the creche plays in that entire celebration.

Unidentified Justice: Do you concede the applicability of the Lemon test here?

Mr. Mahon: Well, we don't think it's necessary, Justice, but we feel that we have demonstrated in our brief that the creche in this case satisfies the Lemon test because of its secular content, but no, we feel that the principles themselves are sufficient to validate this practice.

Under McGowan, under Marsh, we feel that... and the principles in the other cases enunciated by this Court we feel are more than sufficient to sustain the activity in this case.

Unidentified Justice: But as I remember, the Lemon test was not applied in Marsh, very vigorously, anyway--

Mr. Mahon: That is correct, Your Honor--

Unidentified Justice: --particularly as a historical approach anyway.

Mr. Mahon: --because presumably this Court felt that the historical evidence rendered it unnecessary.

I would like to reserve the balance of my time for rebuttal.

Chief Justice Burger: Very well.

Mr. Solicitor General.

ORAL ARGUMENT OF REX E. LEE, ESQUIRE, ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE

Mr. Lee: Mr. Chief Justice, and may it please the Court, I would like to emphasize just briefly two characteristics of Pawtucket's creche that in our view make it a constitutionally permissible governmental acknowledgement of an important part of the American culture and heritage.

The first of these characteristics is that this symbol is part of a larger package.

It is not an end in and of itself.

Everyone in this case accepts the premise that the celebration of Christmas as a national holiday is not an establishment of religion.

It follows in our view that a non-coercive acknowledgement of this undisputed fact... that one of the constituent elements of this recognized holiday is religious... is similarly constitutional.

If it is permissible for Congress to make Christmas a national holiday, then it is permissible for Pawtucket to announce the onset of the holiday, and similarly to announce that one of the constituent elements of that holiday is religious.

Christmas in this country in 1983 means many things.

For the non-religious as well as for the religious, it is the most joyous of our holidays.

Regardless of one's religious beliefs, Christmas is a time of homecoming.

It is a time for family and friends, for gifts and parties.

It is also a time of good will, and of concern for the needs of our fellow human beings.

It is an eclectic holiday, and it has its symbols.

One of those symbols is the creche, which is a reminder that of all the sources from which the American Christmas has grown over the years, one of them is religious.

Neither in the Christmas context nor any other does the First Amendment require that we exclude enriching and important aspects of our history and our traditions as illegitimate and therefore as non-existent.

It was not by governmental decree that Christmas acquired its religious aspect.

That came about as a matter of undeniable historical fact, and to deny its existence, to exclude it from our national consciousness is nothing less, I submit, than intellectual and historical dishonesty.

It is cultural censorship, if you will, which is a First Amendment concern, but not because the First Amendment requires it.

Every single argument raised by the lower courts and by respondents against the creche are equally applicable to Christmas itself.

If Christmas can survive the First Amendment, as every party to this case concedes that it can, then so can an acknowledgement of the fact, the undisputed fact, that religion is one of its ancestors.

The in-between position, which would keep Christmas as a national holiday but force a pretention that it is something other than what it is will not withstand analysis.

Unidentified Justice: What test in your view should the Court apply, Mr. Lee, in testing these things?

Mr. Lee: We submit, Justice O'Connor, that the test that ought to be applied is one that is narrowly tailored to the particular First Amendment concerns of religious symbols.

You could use the three-part test, and we agree with Mr. McMahon--

Unidentified Justice: Do you think that the three-part test would perhaps better describe most of the Court's cases if we read the purpose and effect together rather than purpose or effect?

Mr. Lee: --I do.

I think if you are going to keep that test it would be better to do it that way, and indeed, I am somewhat sympathetic with the three-part test, because in attempting to articulate one of my own, very often you do come back to these two concerns of purpose and effect.

Nevertheless, I simply submit that if you will take a sample of the efforts of other courts, state and federal, that have grappled with this issue of religious symbols and the First Amendment in the context of such things as the national motto and the pledge of allegiance and the creche and a number of other things, the madonna on the seal, you come away, I submit, with the unmistakeable conclusion that we have really lost sight of what the ultimate First Amendment inquiry is and that these three tests themselves have become the ultimate inquiry, and the reason is that they impart a kind of an artificial objectivity, and to use Justice Powell's language, analytical tidiness that in fact is non-existent, and they give the impression of having really accomplished the purpose without our ever examining what the true First Amendment values are.

And for that reason, we submit that a test, if you want to put it in terms of purpose and effect, fine, but that it ought to concentrate on such things as a recognition first that it is a symbol, and starting from that premise, ask yourselves what it is a symbol of, and is it legitimately adjunct to something else, rather than being, is it promotional or is it merely commemorative.

And the final question that I would ask is, is it coercive?

Now, with respect to the creche, I submit that of all of the possible symbols that government might have selected or that might be used by government, the least potential for coerciveness, or that there is none that has less potential for coercion than does the symbol.

I like the use of, say, an anthem, or an oath of office, or a pledge, of allegiance whose religion-acknowleding words, the individual must either affirmatively state or be noticed for declining to do so.

The presence of an outdoor creche leaves the individual completely free to react to it however he or she pleases without anyone else knowing what that reaction is.

Now, it is true that the primary issues presented by the creche are... we pidgeonhole them, we categorize them as establishment clause issues.

But this Court's decisions make it very clear that in deciding establishment issues, free exercised values are nevertheless very relevant and should not be ignored.

The creche is one that is--

Unidentified Justice: Mr. Solicitor General--

Mr. Lee: --Excuse me.

Unidentified Justice: --May I ask you one question?

Mr. Lee: Yes.

Unidentified Justice: The two elements of your test, as I understand it, are the absence of coercion, the fact that it is a recognized symbol, and it is part of a larger package.

Mr. Lee: That is correct.

Unidentified Justice: Well, for many people, going to church or saying prayers and attending religious ceremonies are also part of the Christmas tradition.

Would you apply your test to say an overt prayer is a very small part of the total display, or saying mass in the square, something like that?

Mr. Lee: Where it is governmentally sponsored?

Unidentified Justice: Governmentally sponsored, but part of a much larger display, and only totally voluntary and non-coercive, and just as part of the symbols that many of us respect very deeply.

Mr. Lee: That is a hypothetical that is much harder than this one.

It is one that tests the outer limits of my theory, but I would answer it yes.

Unidentified Justice: That would be permissible?

Mr. Lee: In my view, yes.

Unidentified Justice: When Congress authorizes the payment of something like $30,000 a year, I think, for the chaplain in the House and the chaplain in the Senate, is that symbolic or is it substantive?

Mr. Lee: Well, it is certainly less symbolic than is this case.

Now, in that case, Marsh versus Chambers, which we of course supported with an amicus brief, there was an additional concern, which was mainly historical, and the Court reached the right result in that case relying on historical considerations, and I might point out in that respect that in Marsh versus Chambers, the Court very properly did not apply the three-way test.

It could have done so, and I submit that the reason that that approach was sound was simply that the three-part test is just not all that helpful in deciding the constitutionality of chaplains' prayers, and the same is true here.

Unidentified Justice: Well, I suppose there, though, there was rather clear evidence of the intent of the framers of the First Amendment.

Mr. Lee: That's correct.

Unidentified Justice: Do we have that kind of evidence here with respect to display of a nativity scene?

Mr. Lee: Not with that degree of specificity, Justice O'Connor.

Let me just submit finally that to the extent the First Amendment is involved in this case at all, it favors Pawtucket's right to continue to do what it has done for almost half a century.

No one in this case is contending that Christmas itself must be disestablished as a national holiday, and neither is anyone denying that one of the elements of this holiday is religious.

The First Amendment not only does not require, it would, I submit, be positively offended by a ruling that would say to the city of Pawtucket, yes, you may announce Christmas in every respect except for one.

The one thing you may not announce is that Christmas has anything to do with the birth of Christ.

That would make the acceptability of the announcement turn on its content, more specifically on its lack of religious content, in clear violation of First Amendment principles.

For these reasons, we submit that the judgment of the lower court should be reversed.

Unless the Court has further questions, I have nothing.

Chief Justice Burger: Mr. DeLuca?

ORAL ARGUMENT OF AMATO A. DE LUCA, ESQUIRE ON BEHALF OF THE RESPONDENTS

Mr. Luca: Mr. Chief Justice, and may it please the Court, with the possible exception of the cross, the nativity scene is one of the most powerful religious symbols in this country, and most certainly one of the most powerful Christian religious symbols in this country.

It is, as all of the parties agree and acknowledge, the biblical account of the birth of Christ, the Christian Messiah, the Redeemer, according to the gospels of Matthew and Luke as contained in the New Testament.

Pawtucket's purchase, the maintenance, and the erection of the fundamental Christian symbol involves government in religion to a profound and substantial degree.

It has aligned itself with a universally recognized religious symbol and belief.

I would like to bring to the Court's attention that although the religious symbol, the creche, is contained in a display that is on private property... it is owned by the Slater Museum Historical Society... it is adjacent to the City Hall.

City Hall is approximately 100 feet away from this area.

Also, the creche and the display itself is... there is a ceremony that is held by the mayor of the city of Pawtucket each year, a lighting ceremony, which announces the commencement of the display in the Hodgson Park area.

The music that is played at the display is the same music that is also played inside of City Hall, and all of the festivities that take place at the display and at City Hall are paid for and sponsored by the city of Pawtucket.

Unidentified Justice: Well, Mr. DeLuca, you say that although the property, the real property, I take it, on which the creche is located is private, it is only... it adjacent to city property.

Now, if the city did not own the creche itself, so that everything that was contributed to the display, including the creche, were privately owned, it wouldn't violate the First Amendment, the fact that it was right next door to the City Hall, would it?

Mr. Luca: Well, I think that in the... I think that in understanding that the city owns all of the symbols and all of the artifacts that are contained in this display, and assuming that that... the creche were purchased and paid for privately without any other explanation that it is private, then I think it would still violate the establishment clause for the First Amendment, because there is no indication to anyone looking at that that the display or the creche is not part of the broader display which is put up and sponsored by the city.

Unidentified Justice: Would you regard the prayer that I spoke of to your friend in the House or the Senate or in any state legislature as purely symbolic, or is it a matter of substance?

Mr. Luca: I think that prayer is purely symbolic, and I think this Court made that observation in Marsh versus Chambers, in conjunction with relying on the unique history that this Court found to be applicable to the prayer in Nebraska and generally in legislatures and in Congress.

Unidentified Justice: Now, is it purely symbolic in your view when the chaplain gets up and asks for divine guidance on the members of the legislative body?

Is that your view, that it is purely symbolic?

Mr. Luca: Yes, it is, Mr. Chief Justice.

I believe that when the chaplain begins his invocation, I think it serves two purposes.

One, it gets the attention of the individuals who are presumably beginning the session, and two, it is simply a formalized way of commencing the session, asking people to meditate, to begin to experience and indeed appreciate the seriousness with which they must approach the business that is going to be before them today as Congressmen and Congresswomen, and I think that is the primary purpose of that kind of invocation in that setting.

Unidentified Justice: It has nothing to do with any religious faith, in your view?

Mr. Luca: Well, it most certainly is an acknowledgement of a religious faith.

I have to admit that, Mr. Chief Justice.

However, there is a big difference between an acknowledgement of religion without actually sponsoring a religious point of view as opposed to in this particular case, where we are not only acknowledging religion, but we are acknowledging a particular form of religion, notably Christianity.

I do not think anyone can argue that the nativity scene does not depict the historical birth of Christ.

We all acknowledge that Christ was born approximately 2,000 years ago.

What the nativity scene does, it acknowledges the divinity of Christ.

It acknowledges that the Christian Messiah has come, and that in conjunction with Easter, I think, in biblical terms any way, is indicative of and personifies precisely what Christians believe, to the exclusion of course, of all the non-believers and those individuals who do not have Christian philosophy or religion.

Approximately one week after this suit was filed, there was a press conference held at... in the display, in front of the nativity scene.

A podium was erected specifically for the purpose of holding this press conference.

The press conference was called by the mayor of the city of Pawtucket, Mr. Lynch.

At that press conference, Mr. Lynch made it clear, and present, of course, were the media.

There were a group of school children that came down from a nearby public school along with their teacher, and a variety of other individuals who had stopped to listen to the mayor give his... or begin his press conference.

This was at 1:30 in the afternoon.

At that press conference, he avowed publicly and was reportedly widely in the media, in the newspaper and on television, that he was going to fight the American Civil Liberties Union in order to keep Christ in Christmas.

The purpose of the mayor's statement and its effect was clearly religious and clearly Christian, and the message was heard and was echoed by the many letters which are part of the record in this case, by the many letters both from people in Pawtucket, outside of Pawtucket, and from--

Unidentified Justice: Well, that was basically the mayor's reaction to something that your clients had done, I take it.

Is there any reason to think the mayor would have done that had not he been challenged... had not the city been challenged in its creche display?

Mr. Luca: --Well, he may not have done that if it hadn't been challenged, if the suit had not been filed, but I think it is indicative of the purpose and effect of the erection of that display, of the creche.

The fact that he believes that the creche should be continued as part of the display because what we are trying to do and what we will be doing is to fight the American Civil Liberties Union and all of the non-believers and atheists to keep Christ in Christmas, that goes... I'm sorry.

Unidentified Justice: Well, do you say that when the mayor said he was going to

"fight the American Civil Liberties Union."

he was... you suggest he was declaring war on non-believers and atheists.

I don't think of the American Civil Liberties Union as necessarily standing for non-believers and atheists.

Mr. Luca: I am not suggesting that.

What I am suggesting is that when the mayor took the... when the mayor as the mayor of the city of Pawtucket, as the elected official of all of the people of the city of Pawtucket, believers and non-believers, Christians and non-Christians, stood before the nativity scene in an orchestrated press conference to announce that he was going to fight to keep Christ in Christmas, I think that the effect... it can be fairly inferred that the effect of that press conference was to suggest that what we are trying to do, that is, what the people who brought this suit are trying to do is take a religious symbol away from the majority of the people who happen to believe that Christmas is for Christ, and anyone who is against that is against what the majority of the citizens of Pawtucket believe.

I don't believe that he was engaging... or announcing that he was engaging in warfare, but I do believe that he announced--

Unidentified Justice: Don't you think an opinion can be written upholding you side without mentioning the mayor?

Mr. Luca: --Do I think... Yes, I do, Mr. Justice Marshall.

Unidentified Justice: Well, why are you staying on it so long?

Mr. Luca: I brought the mayor's press conference to your attention because I thought it was... had some probative value, but I would also like to suggest that in spite of the mayor's publicly avowed purpose of the creche in the Christmas display--

Unidentified Justice: Well, excuse me for even mentioning it.

Mr. Luca: --The city at the trial offered three other reasons for the inclusion of the nativity scene in the annual Christmas display.

The first was economic.

The second was cultural and traditional, and the third was aesthetic.

The District Court, since there was no evidence offered as to the aesthetic value of the creche, made a finding that there was obviously no evidence to support that position.

He went on to address the issues... the reasons of economic, cultural, and traditional.

The District Court found in applying the secular purpose test that the city's own witnesses... they had two witnesses, two merchants testify, and they admitted that the deletion of the creche from the display itself would have no economic impact on the downtown area, the commercial... the commercial area of Pawtucket.

One of the reasons, obviously, that the city gave for including the creche was because it attracted shoppers.

These individuals readily admitted that that was not the case.

Also, as it related to the cultural and traditional reasons advanced by the city, the District Court found that the primary purpose and effect of the nativity scene was to advance religion.

Relying on the testimony and exhibits, the court found no evidentiary support for the cultural and traditional reasons advanced by the city.

Indeed, the court found that the evidence supported a contrary conclusion.

More particularly, the court made a finding that as far as cultural and traditional were concerned, the city made no attempt to disclaim the religious meaning of the creche, and in addition to that there was no evidence to support the allegation that it had been a tradition in Pawtucket to have this type of display or similar religious displays erected over the last 40, 50, or 60 years, or within the history of the city of Pawtucket.

Unidentified Justice: You mean, you disagree that it had been displayed for 40 years?

Mr. Luca: I don't disagree that it has been displayed, Justice O'Connor, since 1973 in its present locale.

I agree with that.

What I am... What I am suggesting to you is that there was no evidence... the city made the allegation that they were merely acknowledging a cultural and traditional aspect of the citizens of Pawtucket.

This is the only holiday that the city of... only religious holiday that the city of Pawtucket has acknowledged culturally or traditionally, and the District Court made that finding.

Unidentified Justice: Several years ago, Mr. DeLuca, there was a ceremony held on the Mall, which is federal property, of course.

My recollection is from news accounts there were 200,000 or 300,000 people, in any event a great many people, and the ceremony was presided over by Pope John Paul II.

Would you say that was a step toward or an establishment of religion violative of the religion clauses?

Mr. Luca: I believe that was on the Elipse across the street from the state... in any event, it was on public property, and I believe... it was my understanding, Mr. Chief Justice, that that property has been used traditionally or historically as a place where people can express their principles, beliefs, or non-beliefs, so that in that context I think that it was inappropriate to have a mass being said by the Pope, because I think that in a sense, that that was an establishment or sponsorship of religion, but at least the argument there that could be made is that it was a forum that was provided to all people, regardless of their beliefs, regardless of their principles, as opposed to a specific sponsorship of a religious symbol, as it is in this case.

Unidentified Justice: Then you think it would be all right to put a creche over on the Mall?

Mr. Luca: No, I don't think it's all right to put a creche over on the Mall.

I think what we have to look at is--

Unidentified Justice: Well, what's the difference?

Mr. Luca: --The difference--

Unidentified Justice: How do you distinguish a high mass from a creche?

Mr. Luca: --Well, I think we have to look at the... as the District Court did in this case, the factual setting.

We have to go, as this Court must do if it is going to apply the Lemon versus Kurtzman test, is look at the factual setting, the circumstances surrounding the erection of the creche, the circumstances surrounding the Papal mass, or any other religious symbol that would be displayed or enacted, performed on public property.

We just can't look at it in a vacuum and say that it is okay or it is not okay.

We have to look at it more in terms of the circumstances evolving from the use of the mass or the symbol.

Unidentified Justice: Well, there was a considerable involvement of government in that ceremony, hundreds of extra policemen on duty, streets closed for traffic control purposes, and all that sort of thing.

That was a considerable governmental involvement, was it not?

Mr. Luca: Yes, it was, Mr. Chief Justice, and I think that I would argue respectfully that it could create or did create excessive government entanglement insofar as the government's relationship with a religious group, most notably the Roman Catholic Church.

But I think that the police... and I may be incorrect in my assumptions, but I believe that the costs for the Papal mass, the erection of the altar and the podium and a variety of other costs that were incident to the mass was paid for by the Roman Catholic Diocese.

Unidentified Justice: But not the thousands of dollars involved in the extra management problems, the policing, the traffic control?

Mr. Luca: That's correct.

I think an argument can be made there also as it relates to the question of free exercise, accommodating the free exercise of religion, and of course this Court has noted on many occasions that there is sometimes a clash between free exercise and the establishment clause, and under the circumstances, it may be appropriate, under certain circumstances it may be appropriate for the establishment clause in certain situations to give way to the free exercise of religion so that people can practice their religion without interference from government.

Unidentified Justice: Mr. DeLuca, do you think that any religious effect of the creche display in Pawtucket was diminished by the fact that it included the display of a Christmas tree and a clown and a robot and reindeer and so forth?

Mr. Luca: Well, I think... I have two answers to your question, Justice O'Connor.

First, I think that the District... and I... not think, I know that the District Court made a finding of fact that the setting that the creche appeared in was supportive of its meaning.

There was testimony from a child... not a child, a clinical psychologist by the name of Wurley who said that a display of this type which contains Disney characters, robots, Santa Claus, candy being given out to children, a talking wishing well, is magical.

It is magical to children.

It is designed, it is intended to attract children, and once the children are there, then of course as this witness testified it has a significant impact on that child, and if you are a non-Christian child looking at this display, and if you are a non-Christian child looking at the nativity scene contained in this display, realizing it is supported by the city of Pawtucket, government-supported, then it raises the question for the child and for that child's parents as to whether or not they are okay, because they are not part of the culture that is being represented.

It raises the question for the child as to whether or not they are normal because they are not part of or do not believe in the religious symbol that is being displayed in this display, and I don't think that the secular symbols take away from the religious meaning and the religious intent of the nativity scene, no more than the nativity scene infuses any one of those secular symbols, Santa Claus, the talking wishing well, or the reindeers, with a religious meaning of its own merely because the nativity scene is close to it by its proximity.

Unidentified Justice: Well, the city then could not display religious paintings or artifacts in its museum under your theory.

Mr. Luca: No, that wouldn't be the case.

I think that the primary purpose in displaying religious artifacts in a museum is to educate.

The city in displaying artifacts which may include religious artifacts did not necessarily--

Unidentified Justice: But according to you the effect would be the same, regardless of the purpose.

Mr. Luca: --Well, but I think--

Unidentified Justice: Children would come to the museum, and be somehow induced to think that the city was supporting the religious symbols that were displayed.

Mr. Luca: --But the setting is completely different in a museum as it is from the display in Pawtucket.

The display in Pawtucket is designed to attract children, to entice them, to make it appear with Disney characters--

Unidentified Justice: Well, I suppose museums are developed to try to entice and attract visitors, including children.

Mr. Luca: --Yes, but not in the same way.

Museums are designed to educate children.

The displays are designed to entertain children.

At the same time as they are being entertained, they are also being exposed to a symbol that has very significant religious significance.

So I think there is a clear difference between the museum, just as this Court in Schemp made the distinction between having a... Bible readings take place in the morning as opposed to utilizing the Bible as an educational tool.

Certainly the teacher could utilize the Bible to inculcate religion during the course of the day.

However, in the setting that the Bible was utilized in Schemp, this Court made the finding that there was a violation of the establishment clause, and I think that it is analogous, that is, this... our case is analogous to that in terms of the setting that it is depicted in.

Realizing that this Court must apply the clearly erroneous standard to the District Court's findings, the city articulates two other arguments.

One is contextural and one is historical, and I believe that I have touched on, in answering some of your questions, the argument that is made by the city as it relates to contextural.

I would like to say that as it relates to the historical argument, Justice O'Connor presented a hypothetical to counsel which I think is very relevant to this case.

If in fact the citizens of the city of Pawtucket or the government of Pawtucket can erect a nativity scene as it has in this case, then in order to celebrate a religious... or a holiday which they allege has become secularized, and because of the secularization of the holiday, a religious symbol is no longer religious, even though its origin is religious, then why cannot the city if at some point in time Easter is declared a national holiday, or before Easter, on Good Friday, when schools are let out, when businesses are closed, why would not the city be allowed to erect in a secular setting a cross or a crucifix?

Why not display Easter bunnies and painted eggs and tulips, which are indicative or represent the secularization or the secular side of Easter along with the erection of a crucifix, since the crucifix really is the reason that Easter is being celebrated?

And I think that that example or that hypothetical really presents to the Court some very, very difficult questions if it decides that the nativity scene should not be taken out of this display, because what will happen, the effect of this Court's decision will really be to open Pandora's box.

Unidentified Justice: Do we know... Do we know that the kind of display that you just suggested at Easter, on Good Friday, would not be permitted?

Mr. Luca: It would be my suggestion that it would not be permitted, that--

Unidentified Justice: Has this Court ever--

Mr. Luca: --No, that is why this case is here.

Unidentified Justice: --No, I am talking about Easter now.

I am talking about your Easter analogy.

We don't know whether that would or would not violate the religion clauses, do we, the establishment clause?

Mr. Luca: I wouldn't--

Unidentified Justice: We don't know judicially.

Mr. Luca: --Based upon... The direct answer is no.

Based upon the decisions that this Court has rendered, my... I would feel very strongly that such a display would be a violation of the First Amendment, just as the nativity scene is in this context.

But it opens the door.

It opens the door to a variety of problems for this Court, for the courts of this country, because if... The simplest solution to this problem, and I am not by saying it is simple suggesting that it is insignificant, or that this case is insignificant, but the simplest solution to this problem is to say, enough, this is where we draw the line, because if the line isn't drawn here, then groups all over this country would have the right to come into government, to the executive branch of government and say, I want to celebrate my religious holiday, and I want you to financially support a symbol that I feel is significant to me in the celebration of my religious holiday.

And if that happens, then this Court and the courts in this country will be inundated with suits in order to determine whether there is a violation of the First Amendment.

Unidentified Justice: But, Mr. DeLuca, isn't that problem also present in your position?

Because we asked your opponent about, suppose there was nothing but a creche, and I'd like to ask you, supposing the creche was just one ornament on the Christmas tree and you could hardly see it unless you looked very closely, would that be illegal?

Mr. Luca: If the creche is owned by the city of Pawtucket, yes, it would be illegal, because it is an acknowledgement of a religious symbol.

It is an acknowledgement of a religious belief.

Unidentified Justice: Well, if it is so... if it is so obscure that very few of the visitors to the scene even see it, then how do you distinguish the museum case where you've got some religious paintings in the museum?

Mr. Luca: Well, I don't think the obscurity of the symbol has... with all due respect, has anything to do with whether or not government is sponsoring or advancing religion.

Unidentified Justice: What if they had three wise men and a star in one exhibit, say?

Would that be enough?

Mr. Luca: As a... with a--

Unidentified Justice: You are going to have a line drawing problem no matter what you do.

Mr. Luca: --I'm sorry.

Unidentified Justice: What if you had an exhibit that had not the creche itself, but just three camels out in a desert and a star up in the sky?

Mr. Luca: Well, then what we need in order to interpret those three symbols or four symbols, the three wise men and the star, is a key.

There is a secondary meaning to those symbols.

The star in and of itself has no religious significance whatsoever.

In order for me to understand that that is a star--

Unidentified Justice: Well, a lamb doesn't have any religious significance, and a barn doesn't.

I mean, you can make the same argument about all the elements of the creche.

Mr. Luca: --With the exception of the child, the baby Jesus in the manger, and the two... and the Virgin Mary and St. Joseph.

Unidentified Justice: Well, that could be any mother and father in that--

Mr. Luca: Well, it could be, but the difference between the nativity scene and separating each one of those symbols and... is that in order to appreciate the religious significance of the star, for example, as I started to say, you need a key to unlock the religious significance of the star.

It could mean a--

Unidentified Justice: --I think you need a key for the creche.

Mr. Luca: --No--

Unidentified Justice: I don't think every child who has not been brought up in the Christian tradition would understand its meaning.

Mr. Luca: --No--

Unidentified Justice: There is nothing self-explanatory about a creche to somebody, as Justice Stevens says, to someone who has never been exposed to the Christian religion.

Mr. Luca: --Well, with all... I would beg to differ, Mr. Justice Rehnquist.

First of all, the record supports that there is something very different about the creche.

The people who are contained in the creche, the symbols, the three wise men, the shepherds, are all kneeling in adoration of the child, and the District Court made those specific findings, that the creche... in looking at the creche you can have... no other reason or interpretation could be gleaned from viewing the creche, that here is a religious symbol that... and that is personified or represented by the adoration and the worshipful positions that are taken by the symbols in the display, so that the creche by itself, I think, would--

Unidentified Justice: To say someone is on their knees certainly does not import an exclusively religious connotation.

It could be a temporal scene.

I mean, people are on their knees before kings, emperors--

Mr. Luca: --Well, I think that the creche, and the creche in this case, and any creche that I have ever seen would lend credence to the position that it is not temporal but in fact worshipful, that the appearance of the figures in the display are in a worshipful position, and not simply kneeling down for convenience or for comfort.

They are there to adore the Christian Messiah.

Unidentified Justice: --Well, that is probably true for anyone exposed to the Christian religion, but I think what Justice Stevens was trying to ask you and what I have been trying to ask you is for someone who has not been schooled in that religion.

Mr. Luca: For someone who knows nothing about Christianity?

Then I... if someone has absolutely no knowledge of the birth of Christ and of Christianity's beginnings, and looking at this particular display by themselves, I think that they could import or... the display would import some religious or have some religious overtones.

Unidentified Justice: Mr. DeLuca--

Mr. Luca: Yes?

Unidentified Justice: --would the display up on the frieze in this courtroom of the Ten Commandments be unconstitutional then, in your view?

Mr. Luca: No, it would not be unconstitutional in my view.

I believe that the Ten Commandments as contained in the frieze in this courtroom is not put there to advance religion.

I believe that it, in conjunction with other aspects of the freeze, it is intended to suggest the beginnings of law, the codification of law and how it began.

Unidentified Justice: Well, that is the argument, of course, of the city, that the display of the nativity scene is there to explain the origins of the Christmas holiday observation.

Mr. Luca: But I think that in this setting here in this courtroom, the Ten Commandments in and of themselves do not suggest or advance religion, nor would anyone suggest that the purpose of having the Ten Commandmets in this courtroom is this Court's attempt to advance religion.

Conversely, the Ten Commandments in Stone versus Graham, of course, was found to be a violation of the establishment clause because of its setting, and because of the use that it was being put to.

This Court found, as you know, that the utilization of the Ten Commandments, even though the avowed purpose put in there by the school or by the state was merely to inculcate in children morals and a knowledge of the Ten Commandments, contained religious references to God and

"Thou shalt not have strange gods before me."

and a variety of other religious references, and on that basis the Court found that there was a violation of the establishment clause.

I think that, as I said earlier, ultimately the courts will be asked to decide in each instance whether the erection of various religious symbols are permissible.

An affirmance in this case will make clear to government, to people of this country of all religious persuasions, that sponsorship of religious symbols is not the business of government, and that government represents all people equally on the basis of their citizenship, and not on the basis of their religious affiliation.

Thank you.

Chief Justice Burger: Do you have anything further, Mr. McMahon?

You have two minutes remaining.

ORAL ARGUMENT OF WlLLIAM F. M. MAHON, ESQUIRE, ON BEHALF OF THE PETITIONERS -- REBUTTAL

Mr. Mahon: Thank you, Mr. Chief Justice.

It is respectfully submitted that just as common sense tells us that the Ten Commandment in the frieze of this courtroom is not promoting religion but is symbolizing law, so on the record in this case common sense will tell us that the city is celebrating Christmas and not promoting religious dogma.

The respondents in oral argument here have stressed the circumstances surrounding the religious element as determinative of its constitutional effect.

That, we would respectfully submit, is precisely what the courts below refused to do in this case.

The District Court stated that the city was overemphasizing the importance of context in evaluating the constitutional import of a symbol, and we respectfully submit that as respondent's argument has demonstrated here today, it is impossible to overstate the importance of context, because context makes the symbol what it is.

In response to questions of the Chief Justice, I would submit that the legislative prayers, the public prayers of the first Congress and the Thanksgiving proclamation of George Washington in 1789 were anything but perfunctory, and they were in fact an acknowledgement of the religious content in American life in a very sincere and forthright manner.

The heart of the respondent's position in this case and the decisions below is that it is impermissible for government to keep Christ in Christmas.

We would respectfully submit to this Court that it would be impermissible for government to put Christ in Christmas, it would be impermissible for government to take Christ out of Christmas.

The establishment clause requires strict neutrality.

Christmas was put... Christ was put in Christmas by the traditions of the American people.

This Court may recognize them, and the government may recognize them in the decisions of this Court.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.