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:]

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.