Lynch v. Donnelly (1984) Case Study

by Natalie McDermott

A week before Christmas Day in 1980, Pawtucket, Rhode Island citizen Daniel Donnelly —alongside other city residents, respondents, and the American Civil Liberties Union—brought an action in Federal District Court against the city’s mayor, Dennis Lynch (Witte, Nichols, and Garnett 2022, 92). It was in response to the Christmas display that the city erected annually in a high-visibility park owned by a nonprofit organization in the city’s shopping district. It consisted of a Santa Claus house, a decorated Christmas tree, reindeer pulling a sleigh, and a life-size Nativity scene beneath a banner that read “SEASONS GREETINGS.” The creche consisted of “traditional figures, including the Infant Jesus, Mary and Joseph, angels, shepherds, kings, and animals, all ranging in height from 5” to 5’” and cost the city $1,365 when purchased in 1973 (Lynch v. Donnelly, 3). It took up ten percent of the display space, and made up fifteen percent of the various figurines (Witte, Nichols, and Garnett 2022, 101). Donnelly and his colleagues believed that the inclusion of the creche, which had been a tradition since at least 1943, violated the Establishment Clause of the First Amendment, applicable to the states through incorporation in the Fourteenth Amendment. The District Court ruled in favor of the plaintiffs, and the Court of Appeals affirmed this decision. However, in March 1984, the Supreme Court of the United States found that, notwithstanding the religious significance of the Nativity scene, Pawtucket had not violated the Establishment Clause. The city was allowed to continue displaying the creche, to the dismay of the plaintiffs who were seeking its omission from the display in the future. Chief Justice Burger delivered the opinion of the Court, which, in a 5-4 decision, upheld the constitutionality of what they deemed a “passive” creche display (Lynch, 11). Burger applies the Lemon Test – a framework for Establishment case analysis from Lemon v. Kurtzman in 1971 – but maintains that “this Court has been unwilling to be confined to any single test or criterion” (669). Thus, his argument is three-pronged: that the creche display had a secular purpose, lacked a principle effect that promoted or inhibited religion, and did not foster excessive entanglement between government and religion. The most relevant contextual facts to Burger’s argument were the commercially secular purpose served by the display in the Christmas holiday and the similarity between the display’s supposed ceremonial deism and other widely-accepted instances of connection between church and state, like the inclusion of religious art in federally-funded museums and “In God We Trust” operating as a nonsectarian motto on United States currency (693, 714). The Burger Court defined Establishment in Lynch as “making adherence to a religion relevant in any way to a person’s standing in the political community” (687), repeatedly emphasizing the inevitability and necessity of “acknowledgement” to prevent the government from adopting “a stilted indifference to the religious life of the people” (714). Although Burger insists this understanding of the Establishment Clause “comports with the contemporaneous understanding of the Framers’ intent,” (668), it liberally adopts specificity that is loosely derived from the Constitutional definition, “Congress shall make no law respecting an establishment of religion” (U.S. Const. amend. I). Notably, Lemon - which provided the test employed by Burger in his opinion – had a different definition of Establishment: “to prevent, as far as possible, the intrusion of either [the church or the state] into the precincts of the other” (Lemon, 614). Applying the Lemon Test without maintaining its definition of Establishment results in a significant blindspot in Burger’s majority opinion, as an individual or community

can still feel coerced into a particular religion without it palpably affecting their standing in the political community. Burger first defends the creche’s secular purpose, which the Court construed as “the Government’s acknowledgement of our religious heritage and governmental sponsorship of graphic manifestations of that heritage” (677). He references precedents set in Committee for Public Education & Religious Liberty v. Nyquist (1973), which affirmed that “not every law that confers an ‘indirect,’ ‘remote,’ or ‘incidental’ benefit upon [religion] is, for that reason alone, constitutionally invalid” (Nyquist, 771). Nyquist, a case in which Burger himself concurred that all sections of Chapter 414 of New York’s Education and Tax Laws unconstitutionally favored Roman Catholic private schools, notably led the court to claim that “it has never been thought either possible or desirable to enforce a regime of total separation” (760). Burger then straddles a trepidatious line between acknowledgement, accommodation, and favoritism as he deems the criticism of the creche highly hypocritical when compared to other permissible State-affiliated endeavors. He lists other tangentially-related examples, like “congressional and executive recognition of the origins of Christmas, or the exhibition of religious paintings in governmentally supported museums” (Lynch, 669). The only example that Burger gives credence to, beyond mentioning it in passing, was Marsh v. Chambers, a 1983 case from the previous term in which the Court upheld the chaplaincy practice in Nebraska state government. He compares the level of “endorsement” of religion by the creche in Lynch as equal to that of the legislative prayers approved in Marsh, and suggests that a ruling against Lynch would call into question the legitimacy of the opinion in Marsh (Lynch, 693)

Secondly, Burger argues that the central effect of the inclusion of the creche was secular, simply serving the purpose of acknowledging the public holiday. The Constitution was not intended to “require complete separation of church and state; it affirmatively mandates accommodation,” he writes, and the creche, a “passive display,” was an example of this caveat (673). The Court expresses concern that the omission of the creche from the rest of the display - which includes several clear references to the Christmas season - would be perceived as “callous indifference” to the religious practices of Pawtucket citizens (673). This reasoning, Burger insists, harkens back to the Court’s decision in Zorach v. Clauson in 1952, in which New York schools’ “released time” for offsite religious observance was deemed constitutional in an act of considerable religious accommodation (Zorach, 315). Burger also references Justice Brennan’s concurring opinion in School District of Abington Township, Pennsylvania v. Schempp in 1963, that religious symbolism may “serve such wholly secular purposes as solemnizing public occasions… in a manner that simply could not be fully served in our culture if government were limited to purely nonreligious phrases” (Lynch, 717). Thus, Burger not only believes that the creche is constitutionally acceptable, but also crucial to accommodate the purpose of the Christmas display itself – even though he claims this purpose is nonsectarian. He calls back to Marsh prayers at the conclusion of this phase of the argument once again, saying that the creche’s “reason or effect merely happens to coincide or harmonize with the tenets of some… religions” (682). Finally, the Court briefly reconciled that, while the creche’s display did cause some level of government entanglement with religion, it only manifested in political divisiveness that was a product of the publicity of the case itself. Burger criticizes the District Court’s assertion that this case involved excessive entanglement because “a litigant cannot, by the very act of commencing a lawsuit… create the appearance of divisiveness and then exploit it as evidence of entanglement” (684-85). Furthermore, since there is no evidence of communication between the

city council and local churches about the erection or purchase of the creche over forty years prior, he argues, it is incorrect to presume the affiliation of a specific church with this specific creche (684). Burger omits any argument directed at whether the creche was an instance of excessive entanglement with religion in general, rather than a particular type. Thus, he fails to disprove the government’s endorsement of theism as a whole. Ultimately, the majority opinion’s assessment of Lynch through Lemon was based on the principles of ceremonial deism and religious acknowledgement, which permeated through all three prongs of the Lemon Test. Burger, and O’Connor in her concurrence, emphasize that the United States’ religious origins, described in intentionally vague terms, are an indelible part of patriotic spirit - and omitting the creche would elicit “callous indifference” toward that history (673). Justice O’Connor wrote a concurring opinion in which she agreed with the result of Burger’s opinion, but not the method he employed to arrive there, the Lemon Test. She expresses her concern that “it has never been entirely clear… how the three parts of the test relate to the principles enshrined in the Establishment Clause,” instead choosing to only consider “institutional entanglement and… endorsement or disapproval of religion” (688). Also, Justice Brennan wrote a dissenting opinion that was joined by Justices Marshall, Blackmun, and Stevens. Ardently critical of both the Lemon Test itself and its application by Burger, he claims that Lynch fails two of its prongs. Brennan writes that both the secular purpose and effect “are fully served by the elaborate [decorations]... that are already a part of Pawtucket’s annual Christmas display,” and the inclusion of the creche moves the display from acknowledgement to endorsement (699-700). While Burger claims that the creche’s secularity is evidenced by the commercialism of the holiday display, Brennan rebuts that “unlike every other element of [the display]... the creche reflects a sectarian exclusivity that the avowed purposes of celebrating the holiday season and promoting retail commerce simply do not encompass” (700). At the end of his opinion, Brennan concedes that Burger was correct in calling the creche a threat to excessive entanglement, without actually qualifying it as such. He warns that the decision in Lynch might result in civil unrest and further political division in Pawtucket (703). My view on Lynch almost entirely aligns with Brennan’s dissent, as I find the majority decision to be dishearteningly weak. Firstly, the method itself was deeply flawed; while I think that Lemon provides useful guardrails for the difficult analysis of the Religion Clauses, strict adherence to it did a disfavor to this specific case. As Brennan points out, “the Court’s decision implicitly leaves open questions concerning the constitutionality of the public display on public property of a creche standing alone, or the public display or other distinctively religious symbols such as a cross” (695). Furthermore, in defending its supposedly secular purpose, Burger continuously draws false connections, like between the creche and “the exhibition of religious paintings in governmentally supported museums” and ceremonial prayer in governmental settings (669). These are false equivalencies, as there are distinct secular, even educational, benefits to studying historical religious art or following a long-held tradition that are not present in the creche display, which is solely reflective of specific sectarian roots and scripture without palpable scholarly merit. Also, Burger often relates Lynch to Marsh, when the methods and facts of these cases were quite different. For instance, the Lemon Test was not even applied to Marsh – the dissenting opinion claimed it would have violated all three prongs, if it had been (Marsh, 797). Lynch lacked the rich, well-documented history of the Nebraskan government’s chaplaincy, which predated its very statehood and was widely understood to be purely ceremonial through “rote repetition” (Lynch, 716). Additionally, on a more personal note, I find

these comparisons to be offensive as an individual for whom the creche holds deep significance. Reducing it to an image as secular as the other highly-commercialized or otherwise vapid elements of the display does not accommodate religion, but obstructs it. This effect also plays out in Burger’s weak designation of the creche as central to American history, which I agree with Brennan is “insulting to those who insist for religious or personal reasons that the story of Christ is in no sense a part of ‘history’ nor an unavoidable element of our national ‘heritage’” (712). The only point that I disagree with both the majority and dissenting opinions on is their claim to appropriate disentanglement of church and state. Although there was no particular affiliation between a specific church and the town of Pawtucket, the fact that religious symbolism of any kind was displayed suggests preference of theism over atheism by the city. Ultimately, I can understand how ceremonial deism can operate secularly in United States government – but the creche, in the context of Lynch and the Lemon Test, does not qualify as such.

The Constitution of the United States: A Transcription. National Archives, U.S. National Archives and Records Administration, 4 May 2020, www.archives.gov/founding-docs/constitution-transcript. Committee for Public Education v. Nyquist. 413 U.S. 756 (1973). Lemon v. Kurtzman. 403 U.S. 602 (1971). Lynch v. Donnelly. 465 U.S. 668 (1984). Marsh v. Chambers. 463 U.S. 783 (1983). School District of Abington Township, Pennsylvania v. Schempp. 374 U.S. 203 (1963). Zorach v. Clauson. 343 U.S. 306 (1952). Witte, John, Joel A. Nichols, and Richard W. Garnett. Religion and the American Constitutional Experiment, Oxford University Press, New York, NY, 2022, pp. 92–101.