Allegheny v. ACLU - Oral Argument

Argument of Peter Buscemi

Chief Justice Rehnquist: We'll hear argument now in No. 87-2050, County of Allegheny v. American Civil Liberties Union and related cases.

Mr. Buscemi, you may proceed whenever you're ready.

Mr. Buscemi: Thank you.

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

Five years ago this Court decided a case called Lynch against Donnelly.

In that case the Court upheld a Christmas display in Pawtucket, Rhode Island against a First Amendment challenge.

The display contained a rather large nativity scene with figures as big as five-feet tall.

The City of Pawtucket owned the display, erected it, and maintained it each year as part of a display in the vicinity of the City Hall and a private park near the downtown shopping center.

Unknown Speaker: So, it was on private property?

Mr. Buscemi: Yes, Your Honor.

The mayor himself participated in the lighting of the display each year, and a ceremony to which people were invited... the public was invited.

And the city's involvement in the display was never challenged.

Indeed, that was the reason that the case came before this Court in the first place.

Had there been no city involvement, of course, there would have been no constitutional issue presented in Lynch at all.

The Court rejected the Establishment Clause challenge in Lynch and held that the display did not compel or seek to compel adherence to any religious belief and did not violate the Establishment Clause.

The way in which the Court put the issue to be decided in Lynch is significant for today's case.

The Court said that the issue for decision in Lynch was whether the Establishment Clause prohibits a municipality from including a creche or nativity scene in its annual Christmas display.

That is how the Court began its opinion.

In the five years since Lynch was decided, three federal courts of appeals have considered Establishment Clause challenges to Christmas displays in various cities around the country, including Pittsburgh, Chicago, and Birmingham, Michigan.

Unknown Speaker: And we had a Scarsdale, New York case.

Mr. Buscemi: Yes, Your Honor.

That was affirmed by an equally divided court.

And, in any event, the Scarsdale case was slightly different, as you may remember, because it involved a request by a group to put a display in a park.

It was not a city display that was challenged after it was erected, as was the case in the Chicago case, the Birmingham case, and the case that's here today, the Pittsburgh case.

This case is here on certiorari to the Third Circuit and it involves displays in the Allegheny County Courthouse and in the City-County Building which is directly across the street from the Allegheny County Courthouse in downtown Pittsburgh.

The Allegheny County Courthouse display consists of a nativity scene which is surrounded by Christmas trees, poinsettia plants, wreaths on the windows behind the staircase, and is used as the site for a choral program that takes place throughout the Christmas season each year.

Unknown Speaker: What was it that surrounded the creche in the Pawtucket case?

Mr. Buscemi: Well, the creche in the Pawtucket case was surrounded by a variety of things, including a jumbo candy-cane, a talking wishing well, some reindeer, a Santa Claus, a sleigh and a variety of Christmas symbols.

Unknown Speaker: And did the court find that that had some significance for the Establishment Claim?

Mr. Buscemi: Well, that's a matter of dispute in the case, Your Honor.

As I read the Court's opinion, the Court did not very heavily stress the additional items that were included in a display.

The opinion for the Court--

Unknown Speaker: None of those things that you've listed were... surrounded the creche in this case.

Mr. Buscemi: --All right.

That's correct, Your Honor.

The... the staircase on which the nativity scene was displayed in this case was decorated with Christmas trees, poinsettia plants and wreaths.

There were other decorations elsewhere in the building, not immediately on the staircase.

The staircase was also used as the site for the choir programs that took place every day during the Christmas season during the noon hour.

In addition, the bottom of the staircase, which is on the second floor of the county courthouse, opens into an area called the Gallery/Forum area which the Court can see in the pictures that are reproduced in the joint exhibit volume.

That Gallery/Forum area is an area that's used to display a variety of artwork throughout the year.

It's not any kind of an integral part of the Christmas display.

In any event, as far as we are concerned, the opinion in Lynch does not stress the additional secular elements in the Christmas display.

They are listed at the beginning of the Court's opinion, but very little, if any, of the Court's opinion puts any emphasis on them as a key factor in the Court's decision.

What is a key factor in the Court's decision and what applies equally here is the context of the holiday season.

The nativity scene here, just like the nativity scene in Lynch, was not erected in the abstract.

It was erected as part of a holiday celebration that was sponsored by the County of Allegheny and then the separate display on the City-County Building--

Unknown Speaker: Counsel--

Mr. Buscemi: --sponsored by the city.

Unknown Speaker: --would you think that the context of the Christmas season would justify holding a religious service in the City-County Building?

For example, a Catholic mass or a similar service, at Christmas time?

Mr. Buscemi: Well, Your Honor, that question was raised during the oral argument in Lynch, and I think I'll answer it the same way as the Solicitor General answered it on that occasion.

I think that probably tests the limit of the Court's decision in Lynch, but I would say that would be appropriate as long as it were a noncoercive ceremony.

That is, it did not involve any compulsion and it did not involve anything more than a de minimus expenditure of public funds.

We think... our first submission to the Court about the legality of both the nativity scene and the other display is that they are passive displays.

The Court mentioned in Lynch twice that they were... that the display in that case was a passive symbol of the holiday.

And we think that that in and of itself is ground for sustaining the displays in this case.

I might add, just so that the facts are clear, the second display is in the front of the City-County Building.

It consists of a 45 foot Christmas tree.

There is an 18 foot menorah attached to the pillar next to the Christmas tree.

And there are... there is a sign from the mayor of the City of Pittsburgh, the text of which is reprinted in the briefs... talks about a salute to liberty and a reminder that the festive lights... that the festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.

Unknown Speaker: Do you think the message conveyed by a display may be different when the symbol is located in a city hall or a courthouse instead of a park in a commercial district, a private park?

Mr. Buscemi: Your Honor, we don't think so.

At least, not in this case.

And the reason is that the city's involvement with the display in Lynch was absolutely clear as well.

That was how the case came to this Court.

Moreover, at the very beginning of the Court's opinion in Lynch, the Court noted that the kind of display that the Court was addressing in Lynch was of the kind that was frequently displayed on public grounds throughout the United States.

And, in fact, I think there's a very strong argument that the display on the steps of the second floor of the county courthouse, a display which the record shows was not even seen by 90 to 95 percent of the people who enter the courthouse, is far less prominent and far less likely to convey any message of government approval than is the display in Pawtucket, which was erected and maintained by the city and which was illuminated by the city in a ceremony to which the public was invited.

Unknown Speaker: Are all symbols passive?

Would a cross be passive?

Or a swastika, which brings forth powerful emotions?

Mr. Buscemi: Yes.

I think the symbol itself is a passive device.

Now, there are cases that you may be aware of from the lower federal courts involving enormous crosses that were illuminated either on a hillside or the side of a very prominent building and that were found to be violations of the Establishment Clause because of the dominance of the symbol over the community and the inability to avoid the symbol and the fact that it looked as if the city were endorsing this as a symbol for the entire community.

That is far from the case here.

As far as the passive-active dichotomy, I think my answer to your question is yes, they would be passive symbols.

We have outlined in our briefs that the evil that was addressed by the Establishment Clause initially was the evil of government coercion.

Either government coercion of adherence to particular religious beliefs or government use of public funds to establish and support a church.

In the absence of those... of either of those things, we... I think we have to recognize that we're on the periphery of what the framers sought to address in the Establishment Clause in the first place.

Now, Justice O'Connor's concurring opinion in Lynch suggested a somewhat broader focus on the concept of endorsement.

And, of course, endorsement or the persuasive value of government action, doesn't necessarily involve coercion.

If the mayor, for example, were to announce that he thought it would be a good idea if the city adopted Judaism as its official religion, that might not involve any coercion but it might nevertheless constitute the kind of endorsement that Justice O'Connor's concurring opinion suggested would be inappropriate.

Unknown Speaker: Am I saying your name right?

Mr. Buscemi: Buscemi.

Unknown Speaker: Buscemi.

What does the city do for Moslems?

I don't know what an equivalently important celebration for Moslems would be.

Ramadan, I don't think they celebrated Ramadan.

It's a penitential season.

But--

Mr. Buscemi: I'm not aware that--

Unknown Speaker: --pick a Moslem holiday.

What if it were shown that the city here did not put up a similar display for the Moslem holiday?

Mr. Buscemi: --I'm not aware that the city does put up a similar display for any holiday.

One of the named Respondents in this case is a Moslem, Mr. Tunador.

He testified at the hearing in this case that the Moslem faith does not use outward symbols, and, indeed, regards them as improper.

Unknown Speaker: Uh-huh.

Mr. Buscemi: So, just to answer your specific question--

Unknown Speaker: Well, pick another faith.

Or make up one.

You, you see my point.

In, in order to avoid endorsing or appearing to favor one sect of religion over another, which I think the Constitution does not permit, does the city have to do this for every group?

Mr. Buscemi: --The key point in the Lynch case and the key point in my answer to your question would be the Christmas holiday season itself.

That is, the distinction that I would make between this case and the case that you pose is that Christmas has already been recognized as a national and a state holiday.

Christmas... and that is, in fact, the central thrust of the Court's opinion in Lynch.

Christmas, with its name, derived from Christ, and Christ's mass, has been recognized as a holiday, it's celebrated, the public employees are paid for not... even though they don't work on that day.

And the recognition of the historical origins of the holiday was seen by the Court in Lynch as having, at least in part, a secular purpose.

Unknown Speaker: Well, that explains the creche but not the menorah.

Mr. Buscemi: The menorah, I think, Your Honor, is part and parcel of the holiday season, as it is celebrated by the residents of Pittsburgh.

And that, indeed, is what was said by the district court in this case, and it was also what was testified to by the witnesses called by the Petitioners in the case.

The Chanukah holiday occurs on calendar at approximately the time of Christmas.

The menorah was designed to... for the purposes set forth in the mayor's message, to remind the people in Pittsburgh of the light of liberty and our legacy of freedom, and there was a secular component to that symbol.

Unknown Speaker: Do the creche and menorah have to be about the same size?

What if you have an enormous creche and a little tiny menorah, or an enormous menorah and a little tiny creche?

Mr. Buscemi: Well, in fact, in this particular case we had a menorah next to a Christmas tree without a nativity scene, and then a nativity scene on the staircase indoors without a menorah at all.

So, I would not draw any conclusions based necessarily on the size of the figures.

In fact--

Unknown Speaker: Well, what if--

Mr. Buscemi: --as I said--

Unknown Speaker: --the menorah were there without a Christmas tree next to it?

Just standing alone.

And it relates to a religious holiday, not a public holiday?

Mr. Buscemi: --Well, Your Honor, I would say that that would also be permissible.

I don't think that the Christmas tree is necessary to the constitutionality of the display.

And I don't think that the Court's decision in Lynch suggests that, that it would be.

It's really the same point that was made by Judge Wels in his dissent in this case in response to the majority's attempted distinction of Lynch on the two bases that, one, there was an unadorned nativity scene, which was factually incorrect.

But even if it had been factually correct, I don't think that Lynch's emphasis on the holiday season would be negated even if it were unadorned.

And, secondly, it's the city hall location, which Judge Wels also addressed in his dissent.

So, I don't think anything would change.

But I think that the presence of the Christmas tree emphasizes the overall holiday setting which the Court found so important in Lynch.

Unknown Speaker: Did any of the Plaintiffs in this case challenge the Christmas tree by itself?

Mr. Buscemi: No, sir.

There was no challenge to the Christmas tree, no challenge to the choral program of Christmas carols, no challenge to any of the other decorations in the county courthouse.

And that was made explicit on several occasions during the hearing.

If the Court please, I would appreciate the opportunity to save the remainder of my time for rebuttal.

Unknown Speaker: Very well, Mr. Buscemi.

Mr. Lewin.

Argument of Nathan Lewin

Mr. Lewin: Mr. Chief Justice and may it please the Court:

The irony of this case insofar as it applies to the menorah is that an apparently successful effort on the part of the City of Pittsburgh to demonstrate to its population neutrality with regard to all religions by displaying a symbol which is religious as well as nonreligious to the Jewish community is being attacked as violating the Establishment Clause.

The holiday season that is involved here is, of course, a season which is recognized throughout the United States, and throughout the world indeed, but principally because its focus is a day that has become a secular holiday but has very substantial religious overtones to the majority population in this country.

It is not from the vantage point of the Jewish faith a time of a principal holiday that Jews celebrate.

It happens to be a time when there is also a minor Jewish festival, which is the Festival of Chanukah.

And, therefore, to demonstrate to the citizens of Pittsburgh its respect for minority faiths, the city erected immediately adjacent to a very large Christmas tree... and we have a photograph at page 4 of our petition of the scene... a 45-foot high Christmas tree.

Immediately adjacent to that, an 18-foot high menorah.

And we submit that, given the context, that is a perfectly appropriate and permissible educational effort on the part of the state.

This Court has said repeatedly ever since its opinion in Abington and Schempp that even actions, things that are not passive, but things such as bible readings, that are done for instructional purposes for religion generally are permissible.

And we submit that taken in proper context what this menorah does at... a time of a major Christian holiday is it advises the citizenry that there are other faiths that celebrate at that very same time--

Unknown Speaker: Mr. Lewin--

Mr. Lewin: --their own holidays.

Unknown Speaker: --Mr. Lewin, do you think the city had a duty to put up the menorah if there had been a request for or having already decided to display the creche?

Mr. Lewin: That's our--

Unknown Speaker: A constitutional duty?

Mr. Lewin: --We argue alternatively, Justice Stevens, that under Larson and Valente there is a basis for such an argument.

We are not presented with that, of course, in this case.

But we think that given the overwhelming Christian nature of an exhibit such as either a creche or a Christmas tree, if a Jewish group, or indeed any other group, were to approach--

Unknown Speaker: Well, that's the--

Mr. Lewin: --were to approach the--

Unknown Speaker: --next question I was going to ask.

Mr. Lewin: --city and it were possible--

Unknown Speaker: If then you have two religions represented, would you have a constitutional obligation to satisfy the request of a third or fourth and a fifth that might have different... pagan symbols or whatever they might be?

Mr. Lewin: --We think that a city that has a place, such as the steps of city hall, or something, where it could put other symbols, should not discriminate among religions and should--

Unknown Speaker: The how large--

Mr. Lewin: --in fact--

Unknown Speaker: --how large--

Mr. Lewin: --put other symbols there as well.

Unknown Speaker: --How large must the religious group be to be entitled to that kind of representation?

Mr. Lewin: Well, frankly, I think a religious group that is a bona fide religious group.

It needn't be very large.

It may say, at that time,

"We would like to have some indication of our faith. "

at that time.

Unknown Speaker: I suppose three or four persons who sincerely believed in the particular faith would be sufficient.

Mr. Lewin: Well, again--

Unknown Speaker: Well, why not?

Mr. Lewin: --I think it's--

Unknown Speaker: Why not?

Mr. Lewin: --It's--

Unknown Speaker: Is this a majority rule kind of thing--

Mr. Lewin: --No, I don't... it's not a majority rule, Justice Stevens.

But I think it... it's really a question... I think an impracticality--

Unknown Speaker: --I mean, there can be a very large religion from, you know, another country where they have only three or four representatives in Pittsburgh, but they may feel just as deeply about it.

Mr. Lewin: --And I think that for... indeed, if, for example, the City of Pittsburgh had a public forum which was open to religious faiths to conduct meetings on, it would be guided by the same the standard.

Unknown Speaker: Well, has it not adopted a public forum?

Isn't that what it's done?

Mr. Lewin: Well, in this case the evidence, frankly, doesn't support the public forum position because there was no effort made at the trial level to demonstrate that the steps of City Hall were a public forum.

We were denied leave to intervene at that stage of the case and no party made that... made that showing.

However, it would be precisely the McCreary case, Your Honor.

If in fact there is a public forum and there is a bona fide group and the group says,

"Look, we should be entitled to some representation. "

I think given limitations on time, place and manner, which this Court has regularly applied in these situations, I think a state has an obligation not to discriminate among religious faiths.

But, of course, again,--

Unknown Speaker: How about a menorah for a very small group?

Is... I mean, they'd all be the same size or--

Mr. Lewin: --No, they need not be the same size, Justice Scalia.

They... again, I think a rule of reason applies.

If you've got a limited space and there are groups that want to have some display at that time, to show respect for that group I think the city does have an obligation not to convey to its population there's only one faith in this country and that faith is the Christian faith that celebrates Christmas as a religious holiday.

And that's really what is done at Christmas time in terms of minorities.

The minorities, whether they are the Jewish minority, or the Moslem minority that celebrate their principal holidays at other times, are surrounded in our society by many, many symbols that indicate the majority faith.

And the problems with regard to endorsement... I think that Justice Brennen pointed out in his dissent in Lynch and Donnelly... apply when you have a symbol of a majority faith because that appears to be the state endorsing it.

But there could be no realistic appraisal on the part of anybody who saw that menorah standing next to the Christmas tree that Pittsburgh, which is not more than 10 percent Jewish population, is encouraging its citizens to become Jewish and is endorsing the Jewish faith.

That's a totally unrealistic appraisal of what that menorah is, even if the menorah is a religious symbol.

Because all that it is, in that context, is educational.

And to answer Justice O'Connor's question as it might apply to a Jewish ceremony, if there were a Jewish ceremony... and, again, this case does not involve a ceremony surrounding the menorah... but if there were a Jewish ceremony, we submit in the context of the holiday season and the display it would be an educational or instructional ceremony.

If Jews are permitted even on the steps of city hall to light a menorah in that context, it's not the state encouraging people to light menorahs, it's the state saying to the citizens of Pittsburgh,

"Look at this object. "

"To a minority faith, which are not second-class citizens in the United States, that is a respected tradition. "

"And we want you to learn about that tradition. "

And that's really all that Pittsburgh has done in this context.

Unknown Speaker: --Well, Mr. Lewin, why wouldn't the city have to open up its steps on another holiday for another religious faith?

Mr. Lewin: That's... I submit, Justice White, that... that's a much more difficult question than when it is already opening it up to the majority faith.

In other words, if--

Unknown Speaker: Well, I know, but if a religion says we have no business... we haven't any interest in putting our symbol up there at Christmas time.

That is... we don't celebrate at Christmas time.

We celebrate some other time.

And the city should show its... show that it isn't discriminating or endorsing a particular religion on another day.

Mr. Lewin: --Quite frankly, Justice White, if... if there were a, a public forum that was opened up to Christian ceremonies at Christmas time, then I think it would be appropriate to say to a minority faith,

"At the time of your religious holiday that public forum should be available as well. "

And we submit that there are cases, certainly, that this Court has decided that have said that you can't discriminate against religion.

And consequently, the Court has held that public forums have to be open for religious meetings, if they are open for nonreligious meetings.

And, and we submit that if there were a public forum, if there were evidence that this was a public forum, then if there were a Christian ceremony conducted on the public forum, there should be a Jewish or a Moslem ceremony if there is an application for them.

And I think that's--

Unknown Speaker: Well, doesn't it have--

Mr. Lewin: --an answer to Justice Scalia.

Unknown Speaker: --Doesn't it have to be a public forum?

Otherwise, the city is saying,

"This is not a public forum. "

"We've got a perfect right to confine this... the use of these steps to one religion. "

Mr. Lewin: No, I don't think--

Unknown Speaker: The majority religion.

Mr. Lewin: --I think if there is an area that is not thrown open to public meetings and, therefore, there is no evidence that it is a public forum--

Unknown Speaker: Well, here's steps that are thrown open to religious symbols by a majority faith.

Mr. Lewin: --If the steps are thrown open to religious symbols by a majority faith, then I think that they are a public forum as to which a minority faith may say,

"We should also be entitled to have our religious symbol on those steps. "

Unknown Speaker: So, it has to be a public forum for this purpose?

Mr. Lewin: Yes.

Unknown Speaker: For that purpose only.

Mr. Lewin: Yes, I agree.

It would have to be a public forum.

Unknown Speaker: Is it not correct that the whole premise of your argument is that the creche itself conveys a religious message?

Mr. Lewin: The creche conveys a religious message.

We believe the Christmas tree contains an element of a religious message.

And the menorah is... conveys a religious message although we... there is evidence in the record that the menorah has significance other than religious significance as well.

Unknown Speaker: Are you defending Lynch?

Mr. Lewin: Of course we're... yes, we stand--

Unknown Speaker: All right.

Mr. Lewin: --firmly behind Lynch.

We think, though, in this case this goes far beyond Lynch.

In other words, we think in this case even the dissenters in Lynch should recognize that the menorah in terms of its instructional value is permissible in this context.

Unknown Speaker: Thank you, Mr. Lewin.

Mrs. Litman, we'll hear now from you.

Argument of Roslyn M. Litman

Mr. Litman: Mr. Chief Justice, and may it please the Court:

The issue posed... the question posed in this case is whether the Establishment Clause limits at all the government's display of religious symbols during not only Christmas day but during the period, in this case, 45 days, including, preceding, and following Christmas.

Now, the view taken by the Petitioners, the City and County, apparently is that somehow by reason of the fact that Congress has recognized that December 25th is a federal holiday, and because presidents have made proclamations, and the state has recognized it as a state holiday, that somehow that action trumps the Establishment Clause.

We don't think there is any necessity for this Court to take that view.

We don't think this Court said that in Lynch, and it is perfectly appropriate to view those recognitions of Christmas as a holiday in terms of the states being allowed to celebrate its secular aspects, but not in terms of, as counsel for the county has argued, having a mass in the courthouse, having symbols in the courthouse.

I think it's important for this Court to understand that there are two displays here.

Justice Stevens, in terms of your question about does the creche require the menorah, the Court should understand that the creche stands a one.

It is in the courthouse, and it is in the most prominent and most public place in the courthouse.

Let me dispel the impression that counsel gave when he suggested that the record shows that only... that 90 to 95 percent of the people don't see it.

That was never found as a fact in this case nor could it have been because it was so inherently incredible.

That same witness testified at page 158 of the record that that is the most beautiful and most public place in the courthouse.

And, the Third Circuit found specifically that it was in a public place where people would see it.

The second display is the display involving the manorah.

That is in another building by another governmental body.

The creche is the county, the menorah is by the City of Pittsburgh... and that menorah is not on the steps of, but on the face of the building itself.

Unknown Speaker: And it is with the Christmas tree?

Mr. Litman: That is exactly correct, Justice Rehnquist.

Now, we take from Lynch that the key question in evaluating governmental displays is whether the display amounts to government endorsement of religion, of a... of a particular... or of a particular religious message.

That is to say, does the display send a message to non-adherents that they are outsiders, not full members of the political community, and the accompanying message to adherents, that they are insiders, favored members of the political community?

This Court in Lynch held that a nativity scene did not do that.

These displays do, and they do so for reasons that are constitutionally important and meaningful.

And I'd like to just briefly identify three of those.

First--

Unknown Speaker: Well, the... the two displays are, are somewhat different, aren't they, Mrs. Litman?

Mr. Litman: --They are totally different displays, Justice Blackmun.

Unknown Speaker: But you take the position that you're supporting both of them in your position?

Mr. Litman: We take the same position as to both of them.

That is, that both of them violate the Establishment Clause.

Unknown Speaker: From your point of view, the county one is easier, isn't it?

Mr. Litman: Well, Justice Blackmun, I think that the county one could be considered to be an easier one in one sense.

That is to say that the display of the nativity scene here... and there have been a lot of words said by counsel and in the briefs as to what that display conveys.

But we produce that at pages 3 to 8 of the joint exhibit volume, and I think page 7 particularly reflects the nativity scene as... as it was so that you can see with your own eyes of the impression conveyed by the nativity scene and see whether indeed you feel that the message attested to by the law clerk whole judge's chambers were in that building who had to pass that nativity scene many times a day and had to make his way past it because it takes up over half of the staircase of the main landing... when he said that looking at that scene it evoked in him a memory of when his people... in the middle ages when his people were persecuted and forced to live in ghettos.

Unknown Speaker: Unembellished by anything except flowers?

Mr. Litman: Yes, Justice Blackmun, and I think that it is significant that both Father Swiderski, who testified saying that this profaned his symbol to have it there between the signs of the county commissioner here, the official signs, the controller and the treasurer here, and the nativity scene, which he testified was similar to the kinds one sees in a, in a Catholic Church.

And Ellen Doyle, one of the Plaintiffs who is a religious Catholic, said the scene was reminiscent of the ones in a Catholic Church.

Unknown Speaker: Mr. Lewin's point is that precisely to eliminate any such misperception on the part of this young man, it would be good to have a menorah there as well.

Mr. Litman: Well, of course, Justice Scalia, I would assume that perhaps Mr. Lewin would like a menorah next to the nativity scene, although that... that wasn't asked.

And his point, yes, is that next to the Christmas tree--

Unknown Speaker: Uh-huh.

Mr. Litman: --which is the premise of his argument... he says that the Christmas tree by itself sends a religious message, and, therefore, that necessitates that the city have the menorah as well.

That's for the second display.

But it's very important to recognize that what we're talking about here is not any displays by Chabad, the intervenor, not by the people... no one exercising... free exercise rights.

These displays, each of them, is by the governmental body.

They are gratuitous displays of--

Unknown Speaker: It was in Lynch--

Mr. Litman: --selected--

Unknown Speaker: --It was in Lynch too, of course.

Mr. Litman: --Yes.

Yes.

Lynch was, too.

But unlike Lynch, these displays are at government headquarters where the presence of government is pervasive and unmistakable.

Not only that, the buildings are courthouses much like this one where certain classes of citizens are compelled to come, under compulsion of law, and which constitutes buildings, we would think that, irrespective of whether they bear a sign such as this one does, "Equal Access Under Law", that every citizen should come to and does come to with the expectation--

Unknown Speaker: Well, where--

Mr. Litman: --that he or she will be treated equally irrespective of religion.

Unknown Speaker: --Where was it in Lynch?

Mr. Litman: In--

Unknown Speaker: I had the impression it was in a place that it would be even more difficult to avoid.

Mr. Litman: --It... it--

Unknown Speaker: And it was clear that that was a governmental display, wasn't it?

You really want us to make a distinction on the basis of whether, whether it's in a... on government property even though the display is obviously a government display, is obviously in a place where a lot of people nave to see it?

Mr. Litman: --Justice Scalia, I think that the, the decision in this case should hinge on the confluence, the combination of all three factors.

And that is to say whether here, in these buildings where you have government engaged in... what the court said in Ball was a symbolic embrace between church and state where you have the kind of fusion of church and state that this Court has struck down in Larson.

And where you have symbols that are undilutedly, intensely religious.

That there is no question that these symbols convey the prohibited message to, to outsiders, to non-adherents, that they are outsiders in the political--

Unknown Speaker: Counsel, why did you drop any claim about the carols that were sung?

Mr. Litman: --I would like to, to address that.

Justice Marshall, with respect to the carols, let me dispel the notion that's been created that somehow these displays all hinge together on the carols.

This display, the creche where the carols were sung, stands for 45 days.

The carols are sung for less than 24 hours of that entire period.

During the six-plus-week period, a less than three-week period is devoted to carols, and it is only at the lunch hour that, that anyone comes in.

Justice Marshall, we did not raise the carols because what was... that was not a part of the original complaint.

But the critical thing here is that the nativity scene--

Unknown Speaker: You don't think--

Mr. Litman: --stands--

Unknown Speaker: --the carols had any connection with religion?

Mr. Litman: --I think... I think they... they very likely right, Justice Marshall.

Unknown Speaker: Well, why did you drop it?

Mr. Litman: Oh, it wasn't dropped, Your Honor.

It was not raised in this case, and we could not claim here that it had a relation because, indeed, it was not made part of the case.

And the significant thing here is that the nativity scene and the menorah displays stand alone.

They are 24-hour, round-the-clock displays.

Unknown Speaker: Is that going to be the line?

One line is this was on government-owned property as opposed to simply being obviously done by government in a place where all citizens have to see it.

Now, the second line is 24 hours versus 40 days.

Isn't it clear that if this is bad, that carols are bad, too?

I mean, assuming that it's... that they're not Santa Claus carols.

I mean, you're talking Silent Night and religious carols.

Mr. Litman: In this case not, Justice Scalia, because the... well, in this case not so clear because the carols are done by outside groups.

The nativity scene, however, and the menorah displays are for those respective governments, their pronouncements.

It's government speech that we're talking about with--

Unknown Speaker: Mrs. Litman--

Mr. Litman: --respect to the displays.

Unknown Speaker: --do you think that the city and county government can open up a courthouse or other public building to allow carolers to come in and sing at holiday seasons, and presumably other groups as well, at appropriate times?

Mr. Litman: Justice O'Connor, with respect to that... and, of course, that is not the question before the Court... I think that one could raise a question as to the propriety of singing one religion's carols.

But we have not pressed that claim in this case.

Unknown Speaker: So, you take the--

Mr. Litman: Nor is it--

Unknown Speaker: --position that a public building cannot become a public forum, in effect?

Mr. Litman: --This building... neither the courthouse... certainly the courthouse is in no way a public forum.

And the City-County Building... and we have to be careful to distinguish.

What we're talking about are not the outside sidewalks or steps.

We're talking about the face of the building, such as this.

Unknown Speaker: Well, you don't think--

Mr. Litman: We don't have a public--

Unknown Speaker: --that a public body can permit groups to come in and sing religious songs?

Mr. Litman: --I think... I think a public body could permit groups to come in, Justice O'Connor, and we have not argued that they cannot.

But in this case, what we are presented with is whether a public body can make pronouncements.

Unknown Speaker: Yes, but we're talking about what the Establishment Clause would permit under your theory.

And the next case is down the road.

Mr. Litman: With respect to displays where we are... where we are clearly, in, in this... in this case and in cases like it, in cases where you have the displays, we are clearly focusing on government's action.

And we know that the Establishment Clause traditionally has been... has been held to be a limitation on what government may pronounce.

Unknown Speaker: Oh, if there was a sign on this creche that said,

"This creche was hand-painted and donated and has been put here by the Knights of Columbus. "

or the First Presbyterian Church, that would be okay, then?

It would be like the carols.

Mr. Litman: I think not, Justice--

Unknown Speaker: It wouldn't be the government doing it.

It would be the First Presbyterian Church doing it.

Mr. Litman: --I think not, Justice Scalia.

And I think not for the reason given by Judge Flor in the United Jewish Congress case versus Chicago, where there were six disclaimers.

That if you put a frankly... an intensely religious display--

Unknown Speaker: Uh-huh.

Mr. Litman: --in a building that is so closely linked, that has this symbolic link with government, you can't dispel the concept that government is endorsing it.

And let me say--

Unknown Speaker: That's a very rational position until you say that carols are okay.

Mr. Litman: --Well, I don't... I don't say that the carols are okay if the government is doing that, Justice Scalia.

Unknown Speaker: No, the government isn't singing the carols.

It's letting groups come in to sing the carols.

Just as it's letting groups come in to put up the creche.

Mr. Litman: If I have given you the impression that I... that I said carols are okay, I have misled you.

Unknown Speaker: Okay.

Mr. Litman: With respect to the sign, incidentally--

Unknown Speaker: Mrs. Litman--

Mr. Litman: --Yes, Justice Kennedy.

Unknown Speaker: --does the government have a duty to accommodate religion?

Mr. Litman: I, I believe that... it does, Justice Kennedy.

But in this case one of the critical factors is that we don't have accommodation.

This is not the case--

Unknown Speaker: Well, I, I, I understand.

But at same point... and that certainly precludes the appearance of hostility to religion, does it not?

Mr. Litman: --I, I think... I think clearly that it does.

Unknown Speaker: Would you say that at some point a... an attempt by the government to purge religious symbols from our life can constitute hostility to religion?

At some point.

Mr. Litman: Well, I have not actually thought about the concept of having government purge it, but I would think clearly it appears to me from your question that, yes, there would be a point at which it would be violating the free exercise rights we all have.

The critical--

Unknown Speaker: So, if... suppose that the government officials at the inauguration left during the invocation that preceded the Presidential Inaugural.

There was an invocation before and an invocation after.

Should government officials have left?

Mr. Litman: --I think not, Justice Kennedy, because under the--

Unknown Speaker: Or perhaps--

Mr. Litman: --McDaniel v. Paty--

Unknown Speaker: --sat down while everybody else was standing up?

Mr. Litman: --Excuse me?

Unknown Speaker: Or perhaps sat down while everybody else was standing up?

Mr. Litman: I think not.

I think that government officials, as this Court has held in McDaniel v. Paty, have free exercise rights as well.

Unknown Speaker: Isn't the reason for that that if you insisted on that action, it would show hostility to religion?

Mr. Litman: Perhaps it would show that, but I would premise my, my answer on the fact that government officials, like others, as this Court has said, have free exercise rights.

While--

Unknown Speaker: If we ban Christmas carols in all public buildings, could that be interpreted reasonably by some people as hostility to religion?

Mr. Litman: --I think, Justice Kennedy, that there comes a point at which this Court must say that the Establishment Clause does prohibit government from making certain religious pronouncements.

That point is not always easy to reach.

In this case it is because it is so far to whatever the point should be.

But, obviously, in cases there are balances required between free exercise and establishment.

What makes this case easy is there is no tension between free exercise and establishment.

In this case, this is not accommodation.

This is promotion.

This is not neutrality.

This is favoritism.

And to, and to address the, the question of would the government have to put up a menorah of a certain size, or the question of Justice Scalia of what does the government do for Moslems, the answer is the government does nothing for Moslems.

And even the... that is, the county, and the City of Pittsburgh doesn't either.

But the, the display of the City of Pittsburgh, this frankly Judeo/Christian symbol, certainly conveys--

Unknown Speaker: Did Moslems request that something be done for them?

Mr. Litman: --No, they did not, Your Honor.

But, but that brings into... into question the issue of in order for a government to be neutral, as this Court has insisted it must be, may it take the position that it can sit back and wait for, for religions to ask?

Unknown Speaker: Well, certainly one thing... one way it could justify doing that is, we were told by opposing counsel that the Moslems simply do not want something like that.

So that perhaps if they don't ask it means they are not in the least bit desirous of having a public display.

Mr. Litman: That might be the case, but, but what the record showed in this case, what Malik Tunador testified, was that in his religion personification of the deity... and he included Jesus Christ as one of the figures that one should not profane... that personification by figures is a profanation of, of his symbol.

But to, to focus, Mr. Chief Justice, on how does a government treat religions equally the question is... and Chabad has suggested that they sit back and wait to be asked... and perhaps it would mean that they don't want symbols.

On the other hand--

Unknown Speaker: I would... I would suppose under your theory it wouldn't make... it wouldn't help... it wouldn't help the city much if it welcomed everybody on the... all religions on the front step.

I would think that would be favoring religion.

Mr. Litman: --Here is the problem.

Unknown Speaker: Isn't that... Isn't that right?

Mr. Litman: I think as between the view of favoring religion and non-religion, yes, that would be correct.

Unknown Speaker: You would still be here--

Mr. Litman: But here--

Unknown Speaker: --You would still be here even if the Moslems requested and they were on the front steps and everybody else was that wanted on.

Mr. Litman: --Justice White, that would be the case.

However, in this case you have the added problem that these displays are frankly denominational, frankly non-neutral.

They, they, they have the preferential kind of treatment that this--

Unknown Speaker: Well, if--

Mr. Litman: --Court struck down.

Unknown Speaker: --there were ten different ones, I suppose each one of them would be denominational.

Mr. Litman: Well, that, that, that might... that is so.

But the problem is that what we have here is one that is frankly Christian and one that is... if we accept Mr. Lewin's argument that a Christmas tree gives a Christian message.

If we don't accept that, then there's no reason, there is no basis to having a menorah--

Unknown Speaker: Do we have to decide that question to decide this case, do you think?

Mr. Litman: --We think, Justice O'Connor, that to... that to accept Mr. Lewin's position this Court is compelled to decide that.

I think absent that... and we don't think it is preserved for appeal... but, absent that as a basis, they certainly can't say that the menorah celebrates Christmas.

And their... its whole premise in being there is, they say, to counterbalance what they say is the Christian message delivered by the Christmas tree.

But the kind of preferential treatment you have here is the kind this Court said it would not accept and it struck down in Thornton v. Caldor.

The, the kind of neutrality that we don't have here is the kind of neutrality this court insisted on in Larson.

And there is this problem, Mr. Chief Justice.

As you indicated in your dissent in Larson in dealing with the Unification Church, what if the city gets a request, if somebody gives them a picture of the Reverend Moon.

Now, do they have to put that up or will the government then be involved in deciding is the Unification Church a religion?

And what do they do with Scientology or, or, or with groups that have no symbols.

Or, of course, with--

Unknown Speaker: I think it would... it would have to be a group that has a symbol that is related to the celebration of the particular season that we said in Lynch allowed the government to enter into this field in a, in a special area where it can't normally do it.

Mr. Litman: --Well, of course--

Unknown Speaker: What's distinctive about the menorah is the Jews celebrate the same season in a different aspect.

And if there was another group that celebrated the same season, presumably... it for some reason Reverend Moon was celebrated at Christmas time, which would seem unusual to me, I suppose you'd have to put his picture up.

Mr. Litman: --Justice Scalia, of course, the Petitioners here urge that what justifies the... ignoring the prohibitions of the Establishment Clause at this time is that Petitioners say that Lynch said that during this amorphously defined Christmas season, however long that is, one can put up--

Unknown Speaker: Forty-five days.

Mr. Litman: --Well, 45 days here.

But if during this 45 days one can put up symbols related to Christmas and then they get... under that umbrella they put in the menorah because it happens that the... that the Jewish religion has Chanukah at that time... let me point out, however... and I think it's of critical importance in deciding the case... that this Court understand that the impact of these symbol on religious minorities in this country is very, very strong.

The feeling... aside from Chabad, the Court will note that not only the Jewish law clerk and the Jewish lawyers in this case urged that these symbols not be permitted, but with unanimity, the, the, the majority of the Jewish population in this country have filed briefs here urging this Court--

Unknown Speaker: Well, wasn't that true--

Mr. Litman: --not to--

Unknown Speaker: --Wasn't that true curing Lynch, too?

Mr. Litman: --It was true in Lynch.

But the significant thing here, Your honor, is that, I hope it will underscore for the Court, that they would rather not have... and they asked this Court not to permit government to endorse their symbol, the menorah, rather than have to suffer it at the cost of having the--

Unknown Speaker: But that's--

Mr. Litman: --Christian symbol, the creche--

Unknown Speaker: --apparently a disagreement among different sectors of the Jewish faith.

Mr. Litman: --Well, I think not.

Well, it, it, it may be.

And this one sector of the Jewish faith doesn't... although... although until today they have never taken a view with respect to the creche.

Their intervention here has been limited to the, the menorah.

But the great majority... and you have briefs as amici here from all over this, this country, the Jewish populations urging this court not to permit either of these displays.

And knowing, with the history that they... that they have had, with the many years of living under governments that used religious displays not to foster tolerance and love among religions but to foster intolerance and hatred and bigotry, and knowing that when, when their own religious--

Unknown Speaker: Mrs. Litman, what do you do about Christmas?

Mr. Litman: --Excuse--

Unknown Speaker: What do you do about the federal government declaring Christmas to be a holiday?

Mr. Litman: --I think that... I think that--

Unknown Speaker: Why is that not bad?

Mr. Litman: --you say... that is perfectly fine, Justice Scalia.

We would not object to December 25th.

We think it is a, a, a valid holiday similar to this Court's decision in McGowan where they said that Sunday had secular reasons.

But we don't go on from there and embrace the county's notion that somehow that validates or wipes cut the Establishment Clause for 45 days.

Unknown Speaker: Well, isn't that because--

--What if Congress next year declared Good Friday to be a holiday in the Christian... the Friday before Easter?

Mr. Litman: If Congress did that, I think an argument could be made, Justice Rehnquist, that perhaps it was accommodating or recognizing that many people take off on that day anyway.

I don't think that that hypothet is as clear as the... as the case of Christmas, which is celebrated clearly by the majority.

Unknown Speaker: Well, isn't the reason for that... it's because everyone knows that it's not an endorsement?

In your earlier answer to the Chief Justice you said that other groups object to this endorsement of religion.

But that's the issue, isn't it?

Mr. Litman: Yes, of course, that's the issue, Justice Kennedy.

And the reason that it is an endorsement here is because where it is.

Each of these governments has reached out to link arms with a religion.

They have accepted, they have embraced, frankly evangelical symbols.

With respect to the nativity scene, this one doesn't say, like the one in Lynch, "Season's Greetings" or "Happy Holidays" or even "Merry Christmas".

This one says, "Glory in Excelsis Deo", a quotation from the gospel of--

Unknown Speaker: Well, would the message be different if it said "Season's Greetings" and had a few reindeer and candy canes around, and other displays, such as in Lynch?

Mr. Litman: --Justice O'Connor, that is certainly something that the Court would, would have to consider, although we would suggest that that kind of scene would not be appropriate in a courthouse in any event.

The, the easy part about this case is that there--

Unknown Speaker: The Constitution doesn't address--

Mr. Litman: --are those symbols.

Unknown Speaker: --itself to what's appropriate.

It speaks in terms of the Establishment Clause and the Free Exercise Clause.

Mr. Litman: I'm sorry.

I didn't hear the first word you--

Unknown Speaker: So, is the message of endorsement different if it's surrounded by these other objects?

Mr. Litman: --I think that the message of endorsement in this case, Justice O'Connor, comes about from all three factors.

Where the, the, the symbol is, its, its identity, the, the imprimatur of the--

Unknown Speaker: Yes, I asked you--

Mr. Litman: --state is unconscionable.

Unknown Speaker: --if it would be different if it were surrounded by the other things--

Mr. Litman: I think--

Unknown Speaker: --such as in Lynch.

Mr. Litman: --I think... I think that it would not be permissible, but I think it would be a different display.

It would not have the--

Unknown Speaker: Why?

Because of its location?

Is that what it boils down to?

Mr. Litman: --No.

No.

I think not, Justice O'Connor.

But I think when you have the candy canes and the Santa Claus, one might more easily be able to say they're not getting a religious message.

Where you have a nativity scene, as this one, or a, a menorah, where none of those are there, then the, the religious message is undispelled--

Unknown Speaker: What about poinsettias and wreaths?

I don't think there were any poinsettias in Bethlehem.

Why isn't that like a candy cane?

Mr. Litman: --Well--

Unknown Speaker: Or a Christmas tree?

Or... or--

Mr. Litman: --it's one of--

Unknown Speaker: --Or wreaths?

I don't know that that's... is that part of a secular or part of the religious?

Mr. Litman: --Well, I think in this case, Justice Scalia, it's clearly part of the frame around the, the nativity scene.

And I think if you look at it, you'd have to agree that it enhances and, and makes more prominent the nativity scene.

Unknown Speaker: I don't understand your endorsement point, at least with respect to the Christmas tree and the menorah.

How could you possibly be endorsing either Christianity or Judaism when you have symbols of either?

Now, I can understand how you might say you are endorsing religiousness by acknowledging the religiousness of the people, and this is a significant religious holiday for, for both of these groups.

But as for endorsing one sector rather than another, how could you possibly be?

Mr. Litman: We think what you're endorsing in that case, Justice Scalia is Judeo/Christian symbols that totally ignore in an appalling lack of appreciation for the Moslems, the Hindus, the Buddhists in the population of Pittsburgh, the ever-increasing number of Asian-Americans whom we are in the process of welcoming to our country who don't adhere to the Judeo/Christian symbols, but who are nevertheless part of what, what is, we believe, embraced and protected by the prohibitions of the Establishment Clause.

And, and we think that by... by adhering to the concept that government must remain neutral... we have managed... this country has managed over the last 200 years to preserve a very important right that the framers set for us when they... when they wrote the First Amendment.

And to say, as counsel does, that we can now kick over all of the jurisprudence of this Court on the Establishment Clause, that suddenly we put in a new provision talking about coercion... and he, he neglects to mention to the Court that the same kind of indirect coercion is present here, as the Court found in Engel... but this court has never required coercion.

Their interpretation means that this Court would say that the framers, in enacting the Establishment Clause, enacted a total redundancy because, of course, it would have no meaning.

Unknown Speaker: Thank you, Mrs. Litman.

Mr. Buscemi, you have four minutes remaining.

Rebuttal of Peter Buscemi

Mr. Buscemi: Your Honor, thank you.

The position of the Respondents is basically inconsistent with what this Court decided in Lynch.

Virtually all of the arguments that the Court has just heard would have been equally applicable to the situation in Lynch, a situation in which the Court ruled that the Christmas display of the city was permissible.

As the Court said in that decision, the display was no more an advancement or endorsement of religion than the Christmas holiday itself.

Unknown Speaker: I must say, counsel, that 45 days of a display in a courthouse is a very substantial commitment of a neutral form to an image that is certainly conceded by all to be religious.

Mr. Buscemi: Your Honor, I don't know precisely how long the display in the Pawtucket case was in the park, but I suspect that it was there throughout the Christmas shopping season, because it was right near the downtown shopping district.

And the display there, of course, took up far more space than the display here, in a far more public place, a place seen by far many... far more people than in this case.

Unknown Speaker: Well, there was a lot more material in it than here.

Mr. Buscemi: Well, yes, there was, Your Honor.

But the nativity scene itself was far bigger than the one here.

The simple point is that as this court said at the very beginning of its decision in Lynch, there is an affirmative... the Constitution does not require a complete separation of church and state, it affirmatively mandates accommodation, not merely tolerance, and forbids hostility toward any.

Anything less would require the callous indifference that this Court has said it was never intended by the Establishment Clause.

And the purging of religious symbols, the total elimination of all recognition of religion in our society from public buildings or other public grounds is something that the Constitution has never required and that this Court has never required.

As Judge Weis said at the conclusion of his dissent,

"Lynch advocated an approach of moderation, understanding, and a sense of proportion in ruling on displays commemorating the Christmas season. "

"The Establishment Clause... such displays constitute simply a tolerable acknowledgement of beliefs widely held among people of this country. "

"They pose no threat to religious freedom, but their suppression forebodes ominous consequences. "

Your Honor, the Petitioners in this case support those views and believe that the displays in this case should be sustained for essentially the same reasons that the displays in Lynch were--

Unknown Speaker: Mr. Buscemi, can I interrupt?

You're really... your position then is that basically there is a judgment to be made that the extremes on either side are really not... not realistic alternatives, that we have to make a judgment as to whether the particular display in its particular setting is too much of an endorsement of religion.

Is that right?

That's what those words... the message those words gave me.

Mr. Buscemi: --Well--

Unknown Speaker: Obviously, you're not going to say you've got to take "In God We Trust" off the coins and everything like that.

Nobody would go that far.

So, somewhere along the line somebody has to make a judgment in these difficult cases.

Isn't that right?

Mr. Buscemi: --That's exactly right.

And I think, in fact, one of the characters--

Unknown Speaker: And if there is some... what seems to be an arbitrary line is because somewhere you've got to draw a line.

Mr. Buscemi: --It's precisely what the Court said--

Unknown Speaker: And it would not be ridiculous to say--

Mr. Buscemi: --in Lynch.

Unknown Speaker: --the line is the difference between a commercial display such as you had in Lynch, and a noncommercial display such as you have here.

That's not a frivolous line, is it?

Mr. Buscemi: Well, the question of whether the display in Lynch was a commercial display I think would raise a factual issue.

I don't know that the display--

Unknown Speaker: No, but there's all sorts of secular aspects of that display that are not repeated in this display.

Mr. Buscemi: --Well, that's true.

That's--

Unknown Speaker: And the location was dramatically different, too.

Mr. Buscemi: --That's sort of the "two plastic reindeer rule" of the "Saint Nicholas too" test and--

Unknown Speaker: And what's so wrong... why is that any more arbitrary than any other line that you're going to have to draw in this area?

Mr. Buscemi: --Well, it may--

Unknown Speaker: You put a ridiculous name on it, but nevertheless there is a difference, isn't there?

Well, it may not be more arbitrary, but it seems to me that it does depart from the line that this Court drew in Lynch, which was that the critical consideration was the context of the holiday setting, rather than the accompaniment of the nativity scene by other secular symbols.

Because, of course, then the next question will be are two reindeer enough or do you need eight?

Or, going in the other direction.

Is it all right to say mass in the courtroom?

Mr. Buscemi: --Well, that's true.

Unknown Speaker: You can go in either direction on these things.

Mr. Buscemi: At some point... that's what the Court said in Lynch.

There's line-drawing and no per se rule is possible.

Unknown Speaker: Thank you, Mr. Buscemi.

Mr. Buscemi: Thank you.

Chief Justice Rehnquist: The case is submitted.