Another View of Lynch v. Donnelly

Professor Frederick Gedicks (BYU Law), as Andrew Hamilton notes below, argues in the linked paper that Lynch v. Donnelly is a really terrible Establishment Clause decision — indeed, “anti-canonical.”  With respect, I see things a little differently than Fred.  Fred’s claim that “secularized” religious symbols drain such symbols of their “religious significance” is a quite common one.  “Secularism,” in Fred’s piece and for many academic critics of Lynch, means non-religious.  “Secular” and “religious” are antipodes, and it would be inconceivable that a symbol might partake of both qualities.  For Fred, the more “secular,” the less “religious.” 

This is why Fred is confounded and maybe even a little irritated by the Lynch majority’s twin claims that (1) the crèche conveys a “secular” meaning, inasmuch as it symbolizes “a significant historical religious event long celebrated in the Western World,” and (2) the secular significance of the crèche does not in any way reduce or diminish its religious significance.  Lynch, 465 U.S. 668, 680 (1984).  For Lynch’s critics, when the government commemorates a religious event by displaying a religious symbol, it concomitantly bleeds that symbol of its “religious” significance.  And this is also why critics like Fred prefer the dissenting position of Justice Brennan, who wrote that the majority was in reality “explain[ing] away” the crèche’s religious meaning,” or, as Justice Blackmun had it, that the majority was transforming the crèche into a “neutral harbinger of the holiday season.” 

But it does not seem to me that the meaning of symbols is a zero sum game. Isn’t it more likely that a religious symbol will take on multiple meanings with the passage of time, and that those meanings will interpenetrate? 

Fred is disturbed that the crèche’s secularization depletes its religious significance, but at least on one traditional interpretation of the word “secular” as “worldly” or “pertaining to this world,” a municipality’s display of a symbol commemorating the birth of Christ in this world is hardly non-religious.  Indeed, in this sense, the secularization represented by the crèche is supremely religious — acknowledging the moment when God became man.  It might be true that this meaning of the crèche is not the one that many, or even most, municipalities have in mind when they decide on their holiday displays.  But it’s certainly not an obscure or arcane meaning. 

The most common reaction to an argument like this one is to respond that government ought not be making any such acknowledgements at all.  But now the sands have shifted.  The criticism is no longer the one that Fred is making — that the symbol has been drained of its religious significance.  It hasn’t.  The argument is instead that the state should not be displaying symbols with such unambiguously religious meanings.  Government should not be in the business of adorning itself in religious trappings.

With respect to that argument, I suspect that its implications, if taken seriously, are not ones which most Americans are prepared to accept.  For the cause of secularism as pervasively non-religious government, would most Americans favor eliminating “In God We Trust” from the coinage?  Would they favor the elimination of religious references in speeches and other public pronouncements by elected officials acting in their official capacities?  Some no doubt would favor deleting the phrase “under God” from the Pledge of Allegiance, and some would favor the removal of the display of all religious symbols from government property (or perhaps only all symbols of the religious majority), but at least today, it seems to me that this would be, in general, a minority view.

One of the reasons for this reticence, I suspect, is that symbols, particularly those with ancient and varied histories, take on many meanings and that it is extremely difficult, and possibly futile, to attempt to disambiguate those meanings which are religious (and so forbidden) from those which are secular (and so permitted).  In many cases it may be a losing game to seek, as Professor Gedicks seeks, a single principle of secularism by which we can say with certainty whether a religious symbol is constitutional or not.  If Lynch is frustrating on this front, it at least mirrors our own confusion about these difficult questions, rather than imagining that it can wish away that confusion with a simple, flat, and utterly dissatisfying rule.  — MOD

ADDENDUM: I should have made plainer in the post that I am not suggesting that government displays of crèches, or even of religious symbols in general, are always constitutional.  I don’t believe that.  The point of the post is to defend Lynch in light of some of the problems that it (honestly and forthrightly) confronts  and to compare it favorably to other less (in my view) appealing approaches to this particular establishment issue.

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