The nativity scene pictured above looks typical. The blessed Mary is gazing adoringly upon the baby Jesus with Joseph, the Wise Men, and the shepherds by her side. There is something distinctly different about this crèche, at least according to the Supreme Court. For this crèche hails from the shopping district of Pawtucket, Rhode Island. It was paid for and maintained by public funds, which led to an Establishment Clause lawsuit. While it might seem obvious to you that a nativity scene is a religious symbol, the Supreme Court thought otherwise.
During oral argument at the Supreme Court, the city attorney for Pawtucket argued that Christmas had become a “secular folk holiday,” not a religious one. The attorney also argued that that the promotion of religion through the crèche was “overwhelmed by secular” displays – including figures of Santa Claus and his reindeer, a Christmas tree, a banner reading “Season’s Greetings,” images of carolers, and (somewhat bizarrely) a clown and an elephant.
The Supreme Court’s opinion in Lynch v. Donnelly largely adopted the city’s position. Chief Justice Burger argued that the benefit to religion is only “indirect, remote, and incidental” because of the context in which the crèche is displayed and because it is a “passive symbol.”
There are two ways to interpret Burger’s opinion, either his rationale was a ruse or he sincerely believed that a few secular objects could overwhelm the religiosity of a nativity scene. If the former is true, a fraud upon the Establishment Clause has been committed. I have written a paper that considers the implications of the second conclusion. Here’s the abstract:
Over the past 25 years, federal courts have sanctioned displays of religious symbols on public property – including the crèche, the Ten Commandments, and the Latin cross – by privileging their secular value or because nearby secular symbols wash away their religiosity. This paper contends that these cases have resulted in government secularization of the religious. Though the appearance of religion has increased in the Public Square, this effort has been partially self-defeating because the distinctive substance of religion has been eroded by this jurisprudence, thereby weakening the sanctity of religion. Minimizing the religious import of these symbols makes dialogue over the proper reach of the Establishment Clause effectively impossible.
I will leave the last word on this issue to Justice Harry Blackmun, who wrote a stinging dissent in Lynch. (Twenty years later, Justice Scalia adopted a very similar position concerning Texas’ attempt to secularize the Ten Commandments.) Blackmun writes:
The creche has been relegated to the role of a neutral harbinger of the holiday season, useful for commercial purposes but devoid of any inherent meaning and incapable of enhancing the religious tenor of a display of which it is an integral part. The city has its victory – but it is a Pyrrhic one indeed…Surely this is a misuse of a sacred symbol.