Allen v. Morton

• Decision Date: 03 November 1971
• Docket Number: Civ. A. No. 1951-69.
• Parties: Reverend Thomas B. ALLEN et al., Plaintiffs, v. Rogers C. B. MORTON et al., Defendants.
• Court: U.S. District Court — District of Columbia

333 F. Supp. 1088

Reverend Thomas B. ALLEN et al., Plaintiffs, v. Rogers C. B. MORTON et al., Defendants.

Civ. A. No. 1951-69.

United States District Court, District of Columbia.

November 3, 1971.

Warren K. Kaplan, Washington, D. C., for plaintiffs.

Gil Zimmerman, Asst. U. S. Atty., Washington, D. C., for defendants.

MEMORANDUM OPINION

JOHN H. PRATT, District Judge.

This suit, brought in 1969 by an Episcopal minister, an atheist, the president of the American Ethical Union, a rabbi, and a Roman Catholic priest, sought to enjoin construction and maintenance of the creche in the Christmas Pageant of Peace celebration as a violation of the Establishment and Free Exercise Clauses of the Constitution. The Christmas Pageant of Peace is held annually on federal park land. The defendants are the Secretary of the Interior, the Regional Director of the National Park Service and the Superintendent of National Capital Park Central. After oral argument, this Court granted defendants' motion to dismiss for lack of standing and, alternately, granted defendants' motion for summary judgment. Subsequently, the United States Court of Appeals for the District of Columbia Circuit denied a motion for summary reversal and on April 10, 1970, after concluding that plaintiffs had standing to seek redress for injury to non-economic values, remanded the matter to the District Court "for an evidentiary hearing and a determination of the effect of the crèche under the Schempp standard." Allen v. Hickel, 138 U.S. App.D.C. 31, 37, 424 F.2d 944, 950 (1970).

At the same time, the Court of Appeals suggested: "Perhaps an appropriate accompanying plaque, rather than a mere explanation in pamphlets with lesser circulation, might serve both to allay the impression of Government sponsorship of religious belief and to set the proper respectful tone in the representation of spiritual customs." Id. at 36-37, 424 F.2d at 949-950. In a supplementary footnote, which further explained its thinking, the Circuit Court stated that "The District Court may determine that conditional relief is appropriate, i. e. that if there is substance to plaintiffs' complaints, they may be met by modification or supplement to the display rather than its removal." Id. at 37, 424 F. 2d at 950. Acting on the suggestion referred to, the National Park Service, prior to the 1970 Pageant, erected three plaques in appropriate places explaining the secular history and nature of the Pageant.

Pursuant to the remand, this Court held a five-day evidentiary hearing on the issues raised by the complaint. Subsequently, lengthy post-trial memoranda were submitted and have been considered by the Court.

The Christmas Pageant of Peace

The Christmas Pageant of Peace ("Pageant") is an annual event initiated in 1954 commemorating the secular recognition of Christmas as a national holiday. It takes place on the Ellipse area, which is immediately south of the White House, during the period from about December 10 to the following January 3. Currently, it is co-sponsored by the National Park Service and by the Christmas Pageant of Peace, Inc., a non-sectarian, non-partisan civic organization organized and promoted by the Washington Board of Trade.

The Pageant consists of a number of displays, artistically arranged and presented, traditionally associated with the celebration of Christmas. One such display is the very large National Christmas Tree donated each year by a different State of the Union and lighted with the assistance of the General Electric Company. Fifty-seven smaller trees, representing fifty states and seven territories, line the "Pathway to Peace" leading up to the National Christmas Tree. In addition, there is a burning Yule Log, a pen of eight live reindeer borrowed from the National Zoological Park, and the illuminated life size creche, which is the subject of the present litigation. There is also an illuminated stage where many musical and ceremonial programs traditionally associated with Christmas take place during the three-week period of the Pageant.

It should be pointed out that plaintiffs have not directly attacked the Pageant as a whole, which commemorates Christmas, the date Christianity has recognized as the day of Christ's birth. Nor have they challenged the Pageant's inclusion of decorated Christmas trees, the reindeer and the Yule Log, Christmas symbols which have long been traditionally associated with Christianity's celebration of Christmas. Instead, they have focused their attack upon a single aspect of the entire Christmas display which the Pageant has included as part of its secular commemoration of Christmas —a creche scene depicting the birth of Christ in the manger at Bethelem. The problem presented to the Court is whether the construction, display and maintenance of the creche, in the context just described, is a violation of the First Amendment.

The Applicable Test

The standard to be applied, as was pointed out by the Court of Appeals in Allen v. Hickel, is the two-fold test enunciated in Abington School District v. Schempp, 374 U.S. 203, 222, 83 S.Ct. 1560, 1571, 10 L.Ed.2d 844 (1963);

"The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." (emphasis supplied)

More recently, in Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L. Ed.2d 697 (1970), the Supreme Court, considering the possible limits of governmental involvement with religion, added a possible third test. In this case, which held that property tax exemptions to churches do not violate the Establishment Clause or the First Amendment, the Court speaking through Chief Justice Burger, stated at page 674, 90 S.Ct. at page 1414:

"We must also be sure that the end result—the effect—is not an excessive government entanglement with religion. The test is inescapably one of degree."¹

In applying the three criteria previously set forth, two other considerations should be borne in mind. One has to do with the admittedly secular aspect of Christmas celebration which the Court of Appeals referred to in Women Strike for Peace v. Hickel, 137 U.S.App. D.C. 29, 35, 420 F.2d 597, 602-603 (1969) in the following language:

"It seems fitting and proper to use the Capital or national parks for observance of a national legal holiday, for Christmas no less than the Fourth of July with its fireworks (and speeches). Moreover, and significantly, this is a national holiday that our country shares with others. The * * * program has provided, in addition to music and ceremonial amenities, a climax in the form of the President's Christmas Greeting to the World.

"* * * Government counsel put it at argument that Christmas is no longer a purely religious holiday, that it has also become a secular holiday. In a way it has, and it is commonplace for non-Christians in the United States to exchange gifts and greetings in this season."

The other consideration is the truism expressed by the Court of Appeals in its remand that "the First Amendment does not require the Government to ignore the existence of certain beliefs and customs on the part of large numbers of its citizens." 138 U. S.App.D.C. 31, 35, 424 F.2d 944, 948 (1970). Any other conclusion would be fraught with difficulties, legal as well as practical. As the Supreme Court said in Abington School District v. Schempp, supra, 374 U.S. at 212-213, 83 S.Ct. at 1566:

"It is true that religion has been closely identified with our history and government. As we said in Engel v. Vitale, 370 U.S. 421, 434 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), `The history of man is inseparable from the history of religion.' * * * In Zorach v. Clauson, 343 U.S. 306, 313 72 S.Ct. 679, 96 L.Ed. 954 (1952), we gave specific recognition to the proposition that `we are a religious people whose institutions presuppose a Supreme Being.' The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself. * * * It can be truly said, therefore, that today, as in the beginning, our national life reflects a religious people. * * *."²

In Allen v. Hickel, the Court of Appeals stated the applicable rule as follows: "The Government may depict objects with a spiritual content, but it may not promote or give its stamp of approval to such spiritual content." 138 U.S. App.D.C. at 35, 424 F.2d at 948.

We now consider whether display of the creche in the context of the facts herein presented violated the Establishment Clause of the First Amendment.

The Purpose of the Creche

The Court of Appeals adverted to the secular purpose of the Pageant as announced in the official Pageant of Peace Program in 1968 and concluded: "As such its purpose is no more objectionable than that of a postage stamp bearing a reproduction of a religious painting³ or a Government-sponsored museum display illustrating various religious or holiday customs." 138 U.S.App.D.C. at 36, 424 F.2d at 949. The Court of Appeals was careful to note that, while the Court accepted the secular purpose announced in the pamphlet as reasonable on its face and not contravened by other evidence, the plaintiffs were "not barred from pursuing the issue of purpose on the remand." Id. at 37, 424 F.2d at 950.

To this end plaintiffs presented evidence, much of it documentary, concerning particularly the early history of the Pageant beginning in 1954. There is no question that the support of Christian religious leaders of the community was earnestly solicited and that the participation of such clergymen, both in the...