Religious Symbols in Public Places
The issue: What rules should govern the placement of religious symbols in public places?

Like many other perplexing constitutional issues, the issue of what religious symbols may occupy various public spaces is essentially a where-to-draw-the-line question.  Only absolutists would find objectionable a religious painting in the National Gallery of Art, and only absolutists would see no problem with the placement of a giant crucifix on top of the Capitol Building.  A line will have to be drawn, and the differences between a constitutionally permissible religious display that is close to the line and a constitutionally impermissible display that is also close to the line may seem laughably small--or even silly.  Welcome to "the-two-plastic-animals rule."

Lynch (1984) and County of Allegheny (1989) both concern the placement of nativity scenes on public property during the Christmas season.  In Lynch, the Supreme Court uses the three-prong Lemon test to conclude that a creche in Pawtucket, Rhode Island does not violate the Establishment Clause.  Five years later, the Court uses the same test in Allegheny to conclude that a creche in a county building violates the Establishment Clause.  The distinguishing feature, Justices Blackmun and O'Connor suggest, is that the Pawtucket display included secular Christmas symbols such as a Santa Claus and--yes--two plastic animals (reindeer and elephants).  The presence of the secular symbols made the overall effect of the display more a celebration of a season than an endorsement of religion. By contrast, Allegheny County's display featured only a creche surrounded by poinsettias-- and no secular symbols. (The Court in Allegheny upholds the constitutionality of a menorah, also set on public property in Pittsburgh, in part because it is dwarfed by a nearby 45-foot Christmas tree, minimizing the likelihood that the menorah could be taken as a sign of government endorsement of Judaism.) [See photos of the two displays involved in Allegheny below:]

Creche found to violate Establishment Clause in 
Allegheny County v. ACLU.

Menorah found NOT to violate the Establishment Clause
in Allegheny County v. ACLU.

In 1995, in Capitol Square Review Board, the Court considered whether a free-standing cross, placed by the KKK in a public square across from the Ohio State Capitol building, would violate the Establishment Clause.  Concluding that the space in question was a public forum (a space traditionally used for, or  set aside for, expressive activity), the Court ruled that private placement of the cross would not constitute an endorsement of religion.  Writing for four members of the Court, Justice Scalia insisted that the test was not whether a reasonable person might perceive the cross to be an endorsement of Christianity by Ohio.  Scalia said the real issue is whether Ohio promoted religion, and promotion is not--he concluded-- to be found when a private organization is allowed to use a public forum for religious expression on the equal terms with other organizations.

Private crosses, including Klan cross, in front of the Ohio statehouse. These are the crosses involved in Capitol Square.

In 2019, the Court signaled both a new approach to these cases and a new willingness to tolerate religious symbols on public land.  In American Legion v American Humanist Association, the Court reversed a lower court decision to order the removal of a 32-foot tall Latin cross installed on public land in 1925 to honor WW I veterans who had died during that war.  Writing for the Court, Justice Alito offered reasons for refusing to apply the Lemon test and instead recognizing a presumption of constitutionality in the case:

If the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met. In many cases, this Court has either expressly declined to apply the test or has simply ignored it.

This pattern is a testament to the Lemon test’s shortcomings. As Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them. It could not “explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings, . . . certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving.” The test has been harshly criticized by Members of this Court, lamented by lower court judges, and questioned by a diverse roster of scholars.

For at least four reasons, the Lemon test presents particularly daunting problems in cases, including the one now before us, that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations. Together, these considerations counsel against efforts to evaluate such cases under Lemon and toward application of a presumption of constitutionality for longstanding monuments, symbols, and practices.

The Lemon Test: Is It On Its Last Legs?
Government action violates the Establishment Clause unless it: 
1. Has a significant secular (i.e., non-religious) purpose, 
2. Does not have the primary effect of advancing or inhibiting religion, and
3. Does not foster excessive entanglement between government and religion.
Note: Consensus over the appropriateness of using the Lemon test has broken down since Allegheny.  It is likely that only a minority of the current Court favor applying the test in its old form--and they only in certain types of cases.  Before she left the Court, Justice O'Connor, in what she calls a "refinement" of the second prong of the Lemon test, would focus on whether the action challenged causes reasonable person to conclude that government has endorsed either a particular religion or religion in general.  Justice Kennedy would not find an Establishment Clause violation--at least in prayer cases--without evidence of at least indirect coercion to affirm religious beliefs.  Justices Scalia, Thomas, and (and probably Roberts and Alito) are even less inclined to find Establishment Clause violations, generally limiting them to cases of direct coercion of religious affirmation.

The Court's New Rejection of the Lemon Test in Certain Cases

The Court recently has suggested the Lemon Test is not appropriately applied in certain cases--specifically those in which a practice has a longstanding history, as in monuments with religious significance that have long been on public land, or in the cases of longstanding traditions to begin legislative days with ceremonial prayers.

 The Ten Commandments in the U. S. Supreme Court

Ten Commandments monument in front of the Texas State Capitol
 in Austin.  Its placement was upheld by the Supreme Court.

In the 1980 decision of Stone v Graham the Court, in a 5 to 4 vote, struck down a Kentucky law that required the placement of a copy of the Commandments in public school classrooms.  In June 2005, the Supreme Court decided two more cases, also by 5 to 4 votes, involving the placement of the Ten Commandments on public property.  The Court upheld a challenge to to the placement of a framed copy of the Commandments on the walls of two Kentucky county courthouses (McCreary County v ACLU), but rejected a challenge to the placement of a large stone monument (installed by the Fraternal Order of Eagles) in front of the Texas Capitol (Van Orden v Perry).  In the Kentucky cases, the Court found the placement of the Ten Commandments was motivated by the religious purpose of promoting religion, while in the Texas case the Court concluded that the monument, placed by a private organization on the state grounds some forty years earlier and surrounded by other monuments, had--in its context--the primarily secular purpose of reminding  viewers of the role religion played in shaping national values. 

Justice Breyer, in his concurring opinion, provide the key fifth vote to allow the monument to remain on the public grounds.  He said cases such as this require a nuanced examination of facts to determine whether the display has effects inconsistent with the values expressed in the First Amendment's two religion clauses.

Lynch v Donnelly (1984)
County of Allegheny v ACLU (1989)
Capitol Square Review Bd. v Pinette (1995)
Van Orden v Perry (2005)
American Legion v American Humanist Assn (2019)

The "Mojave Cross" Case: Salazar v. Buono (2010)
In 2010, the Supreme Court overturned a lower court's injunction that prevented the federal government from implementing a land transfer statute that would exchange a piece of land in the Mojave Preserve, federal land, for a piece of private land of roughly equal value.  The piece of public land to be exchanged for private land contained a controversial Latin cross (see picture above) that had been placed in the Preserve over 70 years ago by the VFW as a way of honoring the nation's war dead.  The lower court viewed the proposed land transfer, clearly designed to defeat an Establishment Clause challenge to the cross, as in itself an unconstitutional establishment of religion.  The Supreme Court disagreed.  Writing the Court's plurality opinion, Justice Kennedy said the cross was not a mere "reaffirmation of Christian beliefs" but a symbol that "evokes the thousands of small crosses in foreign fields marking the graves of Americans who fell in battles."  Four justices dissented.

The official seal of Republic, Missouri, challenged by the ACLU as a violation of the Establishment Clause.

Complaint & Answer
Webb v City of Republic, Missouri (1998)
Article on Republic Controversy


1. Lynch and Allegheny County are both 5 to 4 decisions, but come out differently on whether government placement of a creche in a public space constitutes an establishment. The only justice to be in the majority in both cases was Justice O'Connor.  What seems to be the key difference between the two displays for Justice O'Connor?
2.  Since 1989 when Allegheny County was decided, three new justices have joined the Court: Thomas, Ginsburg, and Breyer (replacing White, Marshall, and Brennan).  With the Court's current composition, do you agree that Allegheny County would be likely to come out the same way today, with Thomas replacing White in dissent?  Do the views of Ginsburg and Breyer in Capitol Square offer any clues as to how they would approach the case?
3.  Why do Allegheny's poinsettias not save its creche the way the talking wishing well and plastic reindeer did for Pawtucket?  How does a judge decide what "adds to" and what "detracts from" a possible message of endorsement?
4.  If Allegheny County's menorah stood next to an 8-foot Christmas tree would it have withstood constitutional challenge?  Does the display (see picture at right) suggest to you a "salute to religious liberty"? Would the salute be clearer if Allegheny County added a giant Buddha such as the Taliban blew up in Afghanistan?
5.  Taken together, Lynch and Allegheny County suggest a Court obsessed with trivial matters such as the presence or absence of plastic animals, but can you suggest a better line to draw?
6.  Should Allegheny County come out differently if the county  put a large sign next to the creche: "The County does not intend by this display to suggest any endorsement of Christianity"?
7.  Is a December music program in a public school constitutional if all the songs are religious and pertain to Christmas?  Is the program saved by adding "Frosty the Snowman"?
8.  What message was the KKK trying to send by displaying its cross in Capitol Square?  Do you see the case as raising Establishment Clause issues? 
9.  Analyze the constitutionality of the Republic, Missouri seal and the Ten Commandments plaque on the County Courthouse in Pittsburgh (see picture and photos above).

ACLU Issue Paper on Religious Symbols
Religious Tolerance Site
Case Study: Religious Symbols

Supreme Court Decides Religious Monument Case
(February 25, 2009)


Question presented:
Is a Utah municipal park a public forum under the First Amendment for erection and permanent display of monuments displayed by private parties, and is the Summum religion entitled to an injunction that would allow it to construct in the park a religious monument containing the Seven Aphorisms of Summum and that would be similar in size, material, and appearance to an existing Ten Commandments monument donated by the Fraternal Order of Eagles to the city several decades ago?

A sampler of questions from the oral argument:
Roberts:  "You have a Statue of Liberty.  Do we have to have a Statue of Despotism?  Or do we have put any president who wants to be on Mount Rushmore?"
Souter:  Does allowing someone to put a John McCain sign on your front lawn suggest that you support his candidacy?
Stevens: Would it be all right for the government to exclude the names of gay soldiers from the Viet Nam Memorial?
Scalia:  What if a group wanted to put in the park "a monument to chocolate chip cookies"?

The Supreme Court, with Justice Alito writing for the Court, found that monuments accepted by the city for display in its park were government speech and therefore not subject to a First Amendment analysis.  Pleasant Grove is free to accept or reject private monuments, at least insofar as its acceptance of a monument cannot be seen to be an
endorsement of religion.
10 Commandments on Public Ground: Van Order v Perry (2005)










The Court, on a 5 to 4 vote, held that the placement in front of the Texas State Capitol of a large stone monument engraved with the Ten Commandments did not constitute an "establishment of religion."  The Court noted that the monument, placed among a number of other monuments that did not have religious messages, had a primarily secular purpose of reminding people of the role religion played in shaping our national history.  The Court distinguished the Texas monument from a framed listing of the Ten Commandments in a county courthouse which the Court, on the same day and also by a 5 to 4 vote, said did constitute an establishment clause violation.  Justice Breyer was the swing vote in the two cases.

Exploring Constitutional Law Homepage