First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In Lynch v. Donnelly, issued in 1984, Justice Sandra Day O’Connor suggested a “clarification” of Lemon.1 She argued that the Court should ask whether a city’s Christmas display had “endorsed Christianity,” saying that the first and second prongs of the Lemon test relate to endorsement.2 Justice O’Connor stated: “The purpose prong of the Lemon test asks whether government’s actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.” 3 In a later concurrence, Justice O’Connor stated that endorsement should be judged by whether a “reasonable observer” would think the government is endorsing religion.4

The Supreme Court as a whole employed this endorsement variation on Lemon in a number of cases.5 For example, in cases involving non-financial aid to religious schools, the Court sometimes asked whether children or the larger community would perceive the challenged government support as an endorsement of religion.6 Further, like Lynch v. Donnelly itself, some of the Court’s Establishment Clause cases focusing on endorsement have involved government-sponsored displays or monuments involving religious symbols.7 In Lynch, the Court upheld the display of a crèche as part of a set of holiday symbols, but in County of Allegheny v. ACLU, the Court held that a county violated the Establishment Clause by displaying a crèche by itself in a prominent position in a county building.8 The Court held that the latter display “endorse[d] Christian doctrine.” 9 Although there was a sign stating that the crèche was owned by a private religious organization, the Court said that under the circumstances, the sign showed only “that the government is endorsing the religious message of that organization.” 10 Addressing a different kind of symbol in Capitol Square Review & Advisory Board v. Pinette, the Supreme Court ruled that a public body had not impermissibly endorsed religion when it allowed the Ku Klux Klan to set up a cross in a plaza that had been used as a public forum for a variety of speakers “for many, many years.” 11 Given the context, the Court concluded that the cross would be seen as “private speech endorsing religion,” and not attributed to the government.12

Footnotes

1

Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring). Cf. Widmar v. Vincent, 454 U.S. 263, 271 n.10 (1981) (noting that by “creating a forum [for speech] the University does not thereby endorse or promote any of the particular ideas aired there” ); Engel v. Vitale, 370 U.S. 421, 436 (1962) (holding that “the governmental endorsement of [a specific] prayer” was unconstitutional).

2

Lynch, 465 U.S. at 690.

3

Id.

4

Allegheny Cnty. v. ACLU, 492 U.S. 573, 630 (1989) (O’Connor, J., concurring).

5

See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 307–08 (2000) (holding that a school policy permitting student-led prayer at football games conveyed impermissible endorsement, noting the school’s control over the delivery and content of the prayer); Edwards v. Aguillard, 482 U.S. 578, 585 (1987) (applying endorsement version of Lemon's purpose inquiry to hold unconstitutional a state law prohibiting teaching evolution unless “creation science” was also taught); Wallace v. Jaffree, 472 U.S. 38, 56 (1985) (applying endorsement version of Lemon's purpose inquiry to hold unconstitutional a state law authorizing a minute of silence for meditation or voluntary prayer in public schools).

6

Compare Sch. Dist. v. Ball, 473 U.S. 373, 390 (1985) (noting that “[t]he symbolism of a union between church and state is most likely to influence children of tender years” ), partially overruled by Agostini v. Felton, 521 U.S. 203 (1997), with Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990) (holding that secondary school students were “likely to understand” that a school did not endorse student speech that a federal law required it to host on a nondiscriminatory basis), and Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 395 (1993) (holding that there was “no realistic danger” that allowing a private group to use school facilities for religious activities outside of school hours would be perceived as an endorsement), and Good News Club v. Milford Cent. Sch., 533 U.S. 98, 113 (2001) (same).

7

See Lynch, 465 U.S. at 687 (rejecting Establishment Clause challenge to municipal Christmas display that included a crèche).

8

Cnty. of Allegheny v. ACLU, 492 U.S. 573, 601 (1989).

9

Id. at 598–99, 601.

10

Id. at 600. Similar to Lynch, the Court in County of Allegheny upheld the county’s separate display of a menorah “stand[ing] next to a Christmas tree and a sign saluting liberty.” Id. at 614 (opinion of Blackmun, J.). Justice Harry Blackmun and Justice Sandra Day O’Connor separately concluded that the display conveyed an essentially secular message of pluralism in the context of winter holidays. Id. at 616 (Blackmun, J., concurring); id. at 635 (O’Connor, J., concurring). Justice Anthony Kennedy would have allowed the display where he found no evidence of coercion or proselytization. Id. at 663–64 (Kennedy, J., concurring in the judgment in part and dissenting in part).

11

Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 766 (1995) (plurality opinion); see also id. at 772 (O’Connor, J., concurring) (agreeing that the display did not violate the endorsement test).

12

Capitol Square Review & Advisory Bd., 515 U.S. at 765 (plurality opinion); accord id. at 774 (O’Connor, J., concurring). See also Amdt1.6 Relationship Between Religion Clauses and Free Speech Clause. In Salazar v. Buono, the Supreme Court somewhat similarly considered whether a federal district court had properly prevented the federal government from transferring control of public land containing a Latin cross that was erected by a private group as a World War I memorial. 559 U.S. 700, 705–06 (2010) (plurality opinion). The lower court had initially ruled that the monument conveyed impermissible endorsement, and then further concluded that transferring the land was not a permissible way to remedy this constitutional violation. Id. at 708–11. A three-Justice plurality suggested that the memorial was consistent with the Establishment Clause, and concluded that the district court had erred by viewing Congress’s “policy of accommodation” as embodying “an illicit governmental purpose.” Id. at 717–19. Two other Justices would have reversed the ruling on standing grounds. Id. at 729 (Scalia, J., concurring in the judgment).