The crèche display is to celebrate the Holiday recognized
by Congress and national tradition and to depict the origins of that Holiday.
The crèche is no more an advancement or endorsement of religion than the
congressional and executive recognition of the origins of Christmas. It would
be ironic if the crèche in the display, as part of a celebration of an event
acknowledged in the Western World for 20 centuries, and in this country by the
people, the Executive Branch, Congress, and the courts for 2 centuries, would so
“taint” the exhibition as to render it violative of the Establishment Clause.
To forbid the use of this one passive symbol would be an overreaction contrary
to this Nation’s history. Yet in this case, the Court reversed that ruling,
declaring:
The display of a crèche a representation of the nativity
of Jesus conveys an endorsement of religion, in violation of the establishment of
religion clause of the Federal Constitution’s First Amendment and therefore
must be permanently enjoined prohibited. Ironically, when the Court upheld the
use of a crèche in Lynch, it had been government-owned; yet the crèche
forbidden in this case had been privately-owned. This irony did not escape the
notice of Justice Anthony Kennedy in his dissent:
Nor can I comprehend why it should be that placement of a
government-owned crèche on private land is lawful while placement of a privately-owned
crèche on public land is not. If anything, I should have thought government
ownership of a religious symbol presented the more difficult question under the
Establishment Clause, but as Lynch resolved that question to sustain the
government action, the sponsorship here ought to be all the easier to sustain.
Kennedy was dumbfounded that the Court was striking down a completely passive
religious expression:
There is no suggestion here that the government’s power
to coerce has been used to further the interests of Christianity or Judaism in
any way. No one was compelled to observe or participate in any religious
ceremony or activity. The crèche and the menorah are purely passive symbols of
religious holidays. Passersby who disagree with the message conveyed by these
displays are free to ignore them, or even to turn their backs, just as they are
free to do when they disagree with any other form of government speech. A major
factor in the Court’s order to remove the crèche was that it had been located
in a portion of the courthouse from which Santa and the reindeer were not
visible. Very simply, there had been nothing close enough to the crèche to
secularize it. This prompted Justice Kennedy to observe:
The majority embraces a jurisprudence of minutiae the
trivial.
