American Jewish Congress v. City of Chicago , 827 F.2d 120 ( 1987 )

EASTERBROOK, Circuit Judge,

dissenting.

We must decide whether Chicago violates the Establishment Clause of the first amendment, made applicable to the states by the fourteenth, by displaying a créche in City Hall during the Christmas season. To do so we must apply Lynch v. Donnelly, 465 U.S. 668,104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). This decision, like others requiring multi-factor balances, gives judges of the inferior federal courts fits. The Court avoided creating a rule about the treatment of religious symbols and instead announced that judges should examine each symbol’s context. But which items of the context matter? If different elements cut in different directions, what is to be done? It is discomfiting to think that our fundamental charter of government distinguishes between painted and white figures — a subject the parties have debated — and governs the interaction of elements of a display, thus requiring scrutiny more commonly associated with interior decorators than with the judiciary. When everything matters, when nothing is dispositive, when we must juggle incommensurable factors, a judge can do little but announce his gestalt.

My colleagues’ opinion rises above the subjective and deals thoughtfully with the problems Lynch consigned us. The conclusion is reasoned, and it may well be right— to the extent any resolution under an unfocused balancing test can be “right” or “wrong”. I share the majority’s belief that government and religion should be separate; their mixture has been the source of oppression in many nations, and ours was founded in part by those fleeing the religious policies of other governments. James Madison, who bequeathed us the Establishment Clause and much of the rest of the Constitution, was a strict separationist.

Yet it is also established that the first amendment does not require government to disregard religious sentiment. For example, it may choose Sunday as a day of rest, even though that reinforces Christianity and forces members of other religions to choose between their livelihood and their beliefs. McGowan v. Maryland, 366 U.S. 420, 431-53, 81 S.Ct. 1101, 1108-19, 6 L.Ed.2d 393 (1961); Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961). See also, e.g., Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983); Zorach v. Clausen, 343 U.S. 306, 313-14, 72 S.Ct. 679, 683-84, 96 L.Ed. 954 (1952). The Establishment Clause was supposed to prevent the federal government from taxing for the support of a church or requiring religious observance. See generally Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (1986). The law was to be impartial among religions and between belief and nonbelief. Symbology is a different matter; the government often may persuade when it may not coerce. From the beginning of the Republic much of the federal government’s symbology has been Christian — down to the dating of the Constitution itself, which concludes:

[D]one in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth. In witness whereof We have hereunto subscribed our Names.

Our case is about symbology — about the images of Christmas and the event that holiday celebrates. Christmas, no less than the date inscribed on the Constitution, marks the religion of most Americans. Unlike Sunday closing laws, indeed unlike the formal holiday, the display of the créche does not require obedience. People may venerate, disdain, or curse the icons as they please, without reward for the first or reprisal for the last. To hold that Chicago may not use a symbol showing the religious origin and significance of a national holiday is to extend Jefferson’s “wall of separation” metaphor beyond its proper scope.

I

I agree with the court that this case should be resolved one way or the other by summary judgment. This is so not because the court must grapple with issues of legal characterization — that was equally true in Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), and Mucha v. King, 792 F.2d 602, 604-06 (7th Cir.1986), which in applying the “clearly erroneous” rule to questions of characterization show that courts must employ the usual factfinding processes — but because we are reviewing a decision of a different government. When factual issues determine the constitutionality of governmental action, a federal court may not hold a trial and use its own findings to upset the decisions of the political branches. Vance v. Bradley, 440 U.S. 93, 110-12, 99 S.Ct. 939, 949-50, 59 L.Ed.2d 171 (1979).

Even on matters touching the first amendment, courts must accept plausible judgments by other governmental actors. McGowan itself is the source of one of the most deferential standards, 366 U.S. at 426, 81 S.Ct. at 1105, though formally on the equal protection component of the case. In its most recent term alone the Supreme Court held several times, in first amendment cases, that courts should accept plausible judgments made by the political branches and refrain from independent factfinding. E.g., Turner v. Safley, — U.S.-, 107 S.Ct. 2254, 2264-65 n. *, 96 L.Ed.2d 64 (1987); Munro v. Socialist Workers Party, — U.S. -, 107 S.Ct. 533, 537-38, 93 L.Ed.2d 499 (1986). So if this case turns on inferences about whether passers-by see the creche as part of a larger display containing secular symbols, the City receives the benefit of the doubt.

The plaintiffs in this case wanted to present testimony such as some persons’ beliefs that white figurines (suggesting alabaster) are more offensive to religious minorities than painted figurines. (The figures in Lynch were painted, though they were also life-sized, Donnelly v. Lynch, 525 F.Supp. 1150, 1156 (D.R.I.1981), while the figurines in Chicago are about a foot tall.) It would be appalling to conduct litigation under the Establishment Clause as if it were a trademark case, with experts testifying about whether one display is really like another, and witnesses testifying that they were offended — but would have been less so were the créche five feet closer to the jumbo candy cane. The Supreme Court has treated the issues in Establishment Clause litigation as constitutional facts, on which findings in trial courts are neither necessary nor welcome. E.g., Aguilar v. Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985), in which the Justices drew factual conclusions of their own, departing from specific findings of the district judge. See also Kenneth F. Ripple, Constitutional Litigation § 7-3(E)(3) (1984).

Treating ultimate questions under the religion clauses as constitutional rather than adjudicatory facts reduces the variance in how the judicial system handles these contentious cases. Treatment will be more uniform, less influenced by the religious sensibilities of the judge assigned to the case by lot. This is especially important when the court must balance imponderables; if questions of fact predominated, it would be impossible to maintain uniformity of decision. Here, too, the essential conclusions are constitutional facts. And on these questions we should give substantial deference to the political branches. The question under Lynch is not whether, as an initial matter, the members of this panel see this créche as part of an integrated secular display, but whether reasonable people could see it so.

II

Lynch held that Pawtucket, R.I., could include a créche in an ensemble of other symbols of Christmas. Lynch requires us to affirm the district court’s judgment. The créche in Lynch had life-sized, painted figures and was the most prominent part of the display in the city’s principal park. See 525 F.Supp. at 1155-56. The Supreme Court thought it significant that the display included reindeer, a tree festooned with lights, and other symbols of Christmas — some religious, some secular, and some (a talking wishing well, for example) irrelevant. The display in Chicago has the same mixture. City Hall and its outdoor plaza contain two trees (18' indoors and 90' outdoors), a mechanical Santa Claus, reindeer and sleigh (the sleigh serving as the depository for donations to the “Share-It” program), many 42" wreaths, and banners asking people to make contributions of food and supplies to the needy. The Santa, sleigh, wreaths, banners, and indoor tree are between 10 and 90 feet from the créche. On the plaza the City erected the larger tree, a snowman, and more Share-It receptacles. Christmas carols, live or recorded, sound constantly. Chicago’s display lacks a talking wishing well, but I doubt that one is constitutionally necessary.

Whether the secular element of the display nearest the creche is five or twenty feet away is insignificant. In each the creche is part of a larger ensemble, and anyone walking through the park (or building) will see both the religious and the secular elements. Of course someone standing near enough to the creche in Chicago will see little else, but that was true in Pawtucket as well; this comes from the law of perspective rather than the law of the land. The important thing, the Court concluded in Lynch, is that the government’s entire activity celebrate all aspects of the holiday and not just the religious aspect. Chicago has not made religious icons the sole feature of its Christmas display. And it has not made the mistake of choosing an Easter symbol as the overawing feature of a Christmas display. ACLU v. City of St. Charles, 794 F.2d 265 (7th Cir.1986).

The court distinguishes Lynch on the ground that Pawtucket’s display was in a park, while Chicago’s creche is in City Hall. Its location in City Hall, according to my colleagues, conveys an unmistakable impression that the City is behind Christianity. This finesses the question whether one should look at the créche alone or at the whole display. Lynch holds that the government’s stance must be discerned from everything the government chooses to exhibit. That principle does not depend on whether the display is in a park or in City Hall. And if the context is conclusive, then this case is, as the district court held, just like Lynch. What the City has “endorsed” is Christmas and its collection of symbols — Santa Claus, reindeer, sleighs, generosity, carols, trees, lights, wreaths, and the birth of the figure from whom the holiday takes its name as well as its original significance. Lynch holds that a city may display the symbols of Christmas without thereby endorsing Christianity. That is all Chicago has done. Lynch has been lampooned for implying that the secular symbols drain the religious symbols of their significance, see William W. Van Alstyne, Trends in the Supreme Court: Mr. Jefferson’s Crumbling Wall — A Comment on Lynch v. Donnelly, 1984 Duke L.J. 770, but any doubts we may have about whether a créche loses its religious significance when surrounded by folderol should not affect our disposition of this case.

My colleagues hold (op. at 126-127 that Chicago had a secular purpose for including the créche in its display. That finding should be sufficient to dispose of the case. How is the display of the créche in City Hall necessarily an endorsement of Christianity if the City had a secular purpose? City Hall is the center of government, no doubt — but it is also where the entire Christmas display was located. To emphasize the former over the latter is to break up the display in a way Lynch says should not be done.

Both Pawtucket and Chicago put their créches wherever they put the rest of their display. The display in Pawtucket was in a centrally located park, facing the busiest commercial district, 300 feet from City Hall. 525 F.Supp. at 1154-56. The display . doubtless got more attention there than it would have in Pawtucket’s City Hall, for which it was too big anyway. Chicago has a much larger City Hall and so can fit the whole display within its plaza. Chicago could have put the display in Grant Park on the lakefront, but in December few people brave the winds along the lake. The City is entitled to have its display in a central location. And if Chicago is to have a créche at all, under Lynch it must include the créche with the rest of its display.

The court believes that a créche in City Hall is forbidden because the City endorses everything on display in City Hall, in a way that Pawtucket did not endorse things displayed in the park. But the créche in Paw-, tucket was officially sponsored. The City bought the créche; the mayor himself settled on details of the display; the City inaugurated the display officially each year.

When the Hodgson Park display [in Pawtucket] is opened, ceremonies at the Park are held in conjunction with those in City Hall, 300 feet away. Santa arrives at the Park in a City fire truck. He and the Mayor throw a switch, illuminating the lights at the Park and City Hall____ The sound system that broadcasts Christmas carols through the Park is the same one used at City Hall.

525 F.Supp. at 1156. Pawtucket endorsed its créche at least as much as Chicago does — more so, because Pawtucket owned the créche, paid for city workers’ labor to erect and dismantle it yearly, and sponsored the whole display, while Chicago’s créche sports disclaimers. The district court concluded in Lynch: “[t]he City’s suggestion that ... people did not associate the Hodgson Park display with the City borders on the frivolous____ [T]he opening ceremonies at the Park are conducted by the Mayor____ The same music is broadcast at both places by a common sound system. Even though these factors may not reveal to onlookers the precise financial arrangements underlying the display, they surely indicate that the City had some significant part in its erection.” 525 F.Supp. at 1176 (footnotes omitted).

Officials of Chicago will read with amusement the court’s assertion that the City endorses whatever appears in City Hall. Do they all believe in Santa Claus, too? In 1979 the City invited John Sefick to display some of his art in the lobby of the Daley Center. One of the pieces Sefick put on display was a life-sized tableau of former Mayor Michael Bilandic and his wife accompanied by a tape recording satirizing Bilandic’s response to the previous winter’s record snowfall. The City tried to get rid of the art, or at least turn off the tape, and was met by an injunction. Sefick v. City of Chicago, 485 F.Supp. 644 (N.D. Ill.1979). Once the City opened the lobby to art, the court concluded, it could not dispose of one piece because it disliked the message. See also, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). City Hall is used for displays of many sorts. It is unlikely that passers-by believe that every feature of every display represents the official views of the City, any more than John Sefick’s art did.

Ill

Although Chicago’s créche is no more an endorsement of Christianity than Pawtucket’s, I wonder whether it would matter had Chicago endorsed that family of religions explicitly. A statement of views about religion is not an “establishment” of religion. One can be persuaded (as I am) by Professor Levy that the Establishment Clause bars aid to all religions quite as much as it bars preferences among religions — and by Professor Kurland, Religion and the Law (1962), that the religion clauses together prevent the government from using force or funds to aid or inhibit the practice of religion¹ — yet believe that the government may participate as a speaker in moral debates, including religious ones. Speech is not coercive; the listener may do as he likes.

We must distinguish threats from shadows. Madison and Jefferson, the architects of our principles of religious liberty, understood this well. Madison as President proclaimed days of religious fasting and thanksgiving and later explained that he thought this permissible because the proclamations were “merely recommendatory” and because the Constitution is not concerned with trifles.² Jefferson, who refused on separationist grounds to issue thanksgiving proclamations,³ nonetheless signed treaties sending ministers to the Indians.⁴ When the government expresses views in public debates, all are as free as they were before; that these views may offend some and persuade others is a political rather than a constitutional problem.

Some people believe that the religion clauses of the first amendment should be changed. Suppose Chicago’s City Council passes this resolution: “The Anglican Church is the only true faith; those who spurn its teachings are damned; the Anglican Church should be established in the United States as it is in the United Kingdom.” If the City Council then posts this in City Hall with its other resolves, sends copies to Members of Congress imploring them to amend the Constitution, and takes to the stump to drum up support for the amendment, has it done something forbidden? Does it violate the first amendment to call for revision of that amendment? Must those who would change the charter of the government proceed in secret — ensuring the absence of an informed debate and defeat of the initiative? The hypothetical resolution would be tolerable because part of a public debate, which it would not curtail.

State and federal governments have engaged in religious speech since the founding of the Republic. The First Congress established a chaplaincy, and to this day Congress opens with prayer. See Marsh v. Chambers. Congress provides the military and prisoners with chapels and chaplains. Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985); cf. Baz v. Walters, 782 F.2d 701 (7th Cir.1986). President Washington (and all presidents since, other than Jefferson) proclaimed days of thanksgiving.⁵ Thanksgiving and Christmas are national holidays. Congress regularly asks the President to issue religious proclamations. E.g., Pub.L. 97-280, 96 Stat. 1211 (1982), calling on the President to proclaim 1983 as the “Year of the Bible” — which he did, Proclamation 5018 of February 3, 1983, 3 C.F.R. 9 (1983 compilation). Congress has enacted permanent legislation calling for annual National Days of Prayer, 36 U.S.C. § 169h, and declaring that Memorial Day has a religious component, 36 U.S.C. § 169g. The nation’s money proclaims “In God We Trust”; the Pledge of Allegiance and National Anthem refer to God; witnesses in our courts take oaths on the Bible; sessions of court open with the cry “God save the United States and this honorable Court.” The newest national holiday celebrates the life of a Baptist minister, whose religious message is inseparable from his political message.

These religious acknowledgments and symbols share with Chicago’s créche the absence of coercion. The holder of a nickel need not trust in God, no matter what the coin says, and need not contribute the nickel (or even three pence) to a church. He may labor on Christmas if he likes — though Ebenezer Scrooge had to give Bob Cratchit that day off without governmental compulsion. He may “affirm” rather than “swear” when giving testimony and be silent while others say the Pledge of Allegiance. Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). He need not study or even own a Bible during the “Year of the Bible”. And he may turn his back on the créche. The holidays, the chaplains, the proclamations, the slogans, the oath, the pledge, and the créche alike give offense — to those of other faiths (or no faith) who feel slighted, to those of the same faith who believe that governmental involvement with religion diminishes both institutions, to those who see the camel’s nose. The display of secular symbols to the exclusion of religious symbols for the same event offends other people. Either way, offense in the raw is not actionable. All speech may offend. There is no heckler’s veto. Insult without injury is not even enough to create a case or controversy. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).

Speech by the government is common. See Mark G. Yudof, When Government Speaks: Politics, Law, and Government Expression in America (1983). The drumbeat of politics, the innumerable flacks employed by federal agencies, the propaganda to stir up support for defense spending, the FTC’s pamphlets on how to be a good consumer, the thousands of films distributed by the government here and abroad, these and more are financed from taxes. The government supports public television, finances presidential campaigns, see Buckley v. Valeo, 424 U.S. 1, 93-95, 96 S.Ct. 612, 670-71, 46 L.Ed.2d 659 (1976), gives tax breaks to favored lobbyists, see Regan v. Taxation With Representation, 461 U.S. 540, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983), and to all churches, Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). You may loathe the presidential candidates and recoil from the tastes of the Corporation for Public Broadcasting, but to no avail. Some governmental speech will offend in itself; other speech will mobilize to action and so be more offensive still; yet none is forbidden. The absence of coercion is why. The government may encourage what it may not compel. E.g., Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). It may denounce what it may not forbid. Block v. Meese, 793 F.2d 1303, 1312-14 (D.C.Cir.1986) (Scalia, J.).

It is essential, of course, to ensure that governmental speech does not restrain. So in Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L.Ed.2d 752 (1977), the Court held that drivers in New Hampshire may blot out the slogan “Live Free or Die” (the state’s motto) on their license plates. The government's right to have a motto does not imply a right to compel anyone to be a billboard. Yet the Court thought it sufficient to give each person control of his own speech; Mr. Maynard could not silence the message blaring from thousands of other license plates. There may be special problems when the audience is young, captive, or both. Sessions of a legislature may open with prayer, Marsh holds, but sessions of school may not. Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962).⁶ Children are summoned by law to school; even if told they need not pray, they will be subject to pressure to do so. Children’s ridicule and ostracism of their peers for nonconformity may be more compelling than any fine the government could impose. So, too, Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980), which involved the posting of the Ten Commandments in a classroom, dealt with a captive audience. When the audience can avert its eyes, walk away, or talk back, speakers have greater freedom. E.g., Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 72-74, 103 S.Ct. 2875, 2883-84, 77 L.Ed.2d 469 (1983); Erznoznik v. Jacksonville, 422 U.S. 205, 208-12, 95 S.Ct. 2268, 2272-74, 45 L.Ed.2d 125 (1975). This principle should apply to governmental as well as private speakers.

One can imagine governmental speech so pervasive that it impinges on freedom of thought even if the listener is not “captive”. Friedman v. Board of County Commissioners, 781 F.2d 777 (10th Cir. 1985) (en banc), held unconstitutional a county seal with strong religious meanings. The seal appeared on all of the county’s property and “pervades the daily lives of county residents.” Id. at 782. “A person approached by officers leaving a patrol car emblazoned with this seal could reasonably assume that the officers were Christian police” (ibid.). The cross displayed in St. Charles was like that, too. It dominated the town. It could be seen from miles away; no one could live in or visit St. Charles without constantly being reminded that the City endorsed Christianity. The creche in Chicago does not convey such an unavoidable message. Most residents of the City will live out their lives without seeing the créche. The parties agree that even people with business at City Hall can maneuver their way around the building during the Christmas season without laying eyes on the créche.

Perhaps speech about religion is fundamentally different from speech about communism (“live free or die”). But for a long time the Court has said that the religion clauses deal with governmental compulsion. For example, Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940), paraphrases the Establishment Clause as “forestalling] compulsion by law of the acceptance of any creed or the practice of any form of worship”. Everson v. Board of Education, 330 U.S. 1, 15-16, 67 S.Ct. 504, 511-12, 91 L.Ed. 711 (1947), the source of modern Establishment Clause doctrine, speaks repeatedly of official compulsion as establishment. About a year ago the Supreme Court, unanimous on this point, proclaimed that the Free Exercise Clause “affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures.” Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147, 2152, 90 L.Ed.2d 735 (1986).

This emphasis on compulsion as the central concern of the religion clauses has a solid footing. The establishments of Europe and the states were riddled with compulsion: compulsion to pay church taxes, compulsion to attend church, compulsion to accept the tenets of the chosen creed, test oaths, and disqualifications for office. Levy, The Establishment Clause 4-9. Some states established a single church; some states established all Protestant sects and allowed towns to choose; some states established no religion. But without taxes, test oaths, appointments of ministers, or other acts backed by threat of penalty, it is impossible to speak of “establishment”. The use of governmental force and funds is exactly what people meant in 1789 by the word “establishment”.

The works of Madison and Jefferson reveal the point. Jefferson wrote the principal draft of Virginia’s Act for Establishing Religious Freedom and Madison the Memorial and Remonstrance of 1785, which jointly inform the meaning of the religion clauses. See Philip B. Kurland & Ralph Lerner (eds.), 5 The Founders’ Constitution 77, 82-85 (1987). These are dominated by complaints about coercion. See generally Michael W. McConnell, Coercion: The Lost Element of Establishment, 27 Wm. & Mary L.Rev. 933 (1986).

Jefferson’s bill of 1779 (modified slightly and enacted in 1785) objects to three principal elements of establishments: religious taxes, religious tests of office, and attempts to restrain the propagation of religious beliefs. The preamble declares, for example, that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical”. The bill does not protest government use of persuasion on matters religious; it is concerned with compulsion alone. The substantive rule it establishes is that

no man shall be compelled to frequent or support any religous [sic] Worship place or Ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.

The preamble to the bill is itself an exercise in religious persuasion. Jefferson begins:

Well aware that the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds, that Almighty God hath created the mind free, and manifested his Supreme will that free it shall remain, by making it altogether insusceptible of restraint: That all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do, but to extend it by, its influence on reason alone: ...

If all endorsement by the state of Christian beliefs is forbidden, then any state, that today enacted Jefferson’s Bill for Establishing Religious Freedom would be violating the Establishment Clause!

The Memorial and Remonstrance, on which the Supreme Court has relied too many times to count, is an objection to a proposed tax for the support of Christian “teachers” in Virginia. Madison wrote that any support of religion “if finally armed with the sanctions of a law, will be a dangerous abuse of power” and expatiated on the evils of coerced support of the church. He held that religion “can be directed only by reason and conviction, not by force or violence” and that the state should not “force a citizen to contribute” so much as “three pence only of his property for the support of any one establishment”. Madison added that “attempts to enforce by legal sanctions, acts obnoxious to so great a proportion of Citizens, tend to enervate the laws in general”.

When introducing and debating the Establishment Clause on the floor of the House in 1789, Madison stated that

he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.

1 Annals of Congress 730 (J. Gales ed. 1834) (Aug. 15, 1789). Although the language was altered after that remark, none of the changes affects Madison’s point: that the government should eschew the business of funding religion or penalizing adherence to any system of beliefs. Madison did not suggest that the Establishment Clause put government out of the business of suasion; neither did anyone else in 1789. That is why the Congress that sent the Establishment Clause to the states thought it permissible simultaneously to call on President Washington to issue a religious proclamation of thanksgiving.

The contemporaneous evidence is all on one side. Subsequent deeds and words of Jefferson and Madison look in both directions, however. Jefferson declined to issue thanksgiving proclamations as President, though he signed treaties providing funds for religious activities. See page 23 above. Both Jefferson and Madison signed bills providing funds for chaplains. Madison issued thanksgiving proclamations but viewed them as regrettable. His “Detached Memoranda” of 1817 call the proclamations “shoots from the same root” as laws he would condemn (5 The Founders’ Constitution 105). “Altho” recommendations only, they imply a religious agency, making no part of the trust delegated to political rulers.” Ibid. Madison knew, however, that not every inroad on a principle is for that reason unconstitutional; he did not denounce his acts as unconstitutional by questioning their wisdom. Madison’s own theory of constitutional interpretation was structural; he gave great weight to language, context, and the early implementation of the document. H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv.L.Rev. 885, 935-41 (1985). His approach to interpretation would have led him to conclude that Congress’ recommendation to Washington, and the many thanksgiving proclamations of Presidents Washington and Adams, were dispositive on the strictly legal point.

Madison also vetoed, on constitutional grounds, a bill incorporating a church in the District of Columbia. 22 Annals of Congress 982 (Feb. 21, 1811) (veto message), reprinted in 5 The Founders’ Constitution 99. To the modern mind this seems an assertion that any act nodding in the direction of a church is an establishment. That, however, is because today’s corporate statutes are enabling laws; the corporation designs its own organization and rules of conduct. The bill Madison vetoed, according to the veto message,

enacts into, and establishes by law, sundry rules and proceedings relative purely to the organization and polity of the church incorporated, and comprehending even the election and removal of the Minister of the same; so that no change could be made therein by the particular society____ This particular church, therefore, would so far be a religious establishment by law; a legal force and sanction being given to certain articles in its constitution and administration.

As he had in the Memorial and Remonstrance, as he had on the floor of the House, Madison again expressed concern about governmental compulsion — about the interaction of law and religion, not simply of lawgivers and religion.

The genesis of the Establishment Clause persuades me that force or funds are essential ingredients of an “establishment”. Yet I offer this conclusion in the spirit of constructive criticism, because it is plainly not the law today. Engel v. Vitale, 370 U.S. at 430, 82 S.Ct. at 1266-67, contains this passage:

The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.

The passage is circular: it says that there needn’t be coercion, there need only be “establishment”. If establishment means force or funds, then you can’t have one without the other. The passage also is ukase. It is unreasoned, unsupported by history, and irrelevant to the case at hand. The very next passage states: “This is not to say, of course, that [school prayers] do not involve coercion”. Id. at 430-31, 82 S.Ct. at 1267. And in this the Court is correct, for the pressure on children to conform, and the shame of ostracism, may be more powerful than the threat of imprisonment. Nonetheless, the dismissal of coercion in Engel has been the basis of subsequent decisions including Lynch, in which the Court thought it essential to inquire whether the context made the whole display secular. When dicta become the ratio decidendi of later cases, judges of inferior federal courts are not free to proceed as if nothing had happened.

A judge’s obligation to apply the dicta of Engel and the rationale of Lynch does not mean that he must endorse as well as acquiesce. A judge may, and I do, suggest that the prevailing doctrine could bear reexamination. While declaring that coercion is not part of an establishment of religion, the Court also continues to say that the interpretation of the Establishment Clause is informed by the original meaning of the text. No other part of our jurisprudence under the Bill of Rights contains such extensive discussions of, and reliance on, the background of the text. In some cases, such as Marsh (upholding legislative chaplains), the Court has held late 18th Century practices dispositive. In the great majority of cases the Court has assumed that “the line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.” Abington School District v. Schempp, 374 U.S. 203, 294, 83 S.Ct. 1560, 1609, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring). That line is one demarcating force (forbidden) from suasion (tolerable, even if unwelcome). It may be hard to draw, as Engel and the cases concerning seals and crosses (supra at 134-35) show. I have not tried to resolve the many hard cases that could arise under this approach. But difficulty in applying the original constitutional rule is not a good reason for expanding the scope of the constitutional prohibition.

IV

The disappearance of coercion from the Establishment Clause in 1962 is an example of a tendency in constitutional reasoning to make the rule more abstract and then take the abstraction to the limit of its logic. The first step is identifying the purposes or consequences of the text — a step necessary in any approach to constitutional decision-making. The interpreter concludes (accurately) that the Establishment Clause was designed to prevent the government's financing of religion or compulsion to affirm religious beliefs. That is about as far as the history goes on objectives. But we can identify the direction of the movement and some of the consequences.

[T]he intended direction of the first amendment was the enhancement of religious freedom____The objectives were to establish an equality among persons, so that each individual could choose without interference how to commune with his god, and to avoid the havoc that religious conflicts had imposed on mankind throughout history. I doubt, however, that we can learn more from the history of the origins of the religion clauses than the lesson Mr. Justice Jackson derived from the first amendment as a whole when he stated: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Philip B. Kurland, The Origins of the Religion Clauses of the Constitution, 27 Wm. & Mary L.Rev. 839, 860 (1986), quoting from Barnette, 319 U.S. at 642, 63 S.Ct. at 1187. If the government permits people to choose, if it no longer can “force citizens to confess by word or act their faith” in any position, then the government is less able to abet religious intolerance. A government so limited is less likely to be enlisted by particular religious factions. A government so restrained is more civil, less prone to stir up hatreds or give insult to religious minorities. Understanding all of this is an essential step in deciding any constitutional case.

The next and dubious move is to change the level of generality. The consequences of the existing constitutional rule can be made the basis of a generalization in which the Clause deals with whatever may reinforce intolerance or give insult to dissenters. This generalization then is reconverted to an absolute rule. It is easy to play this trick on the Establishment Clause. The statement of consequences I have just given can be made a statement of legal rules, such as “Do nothing that will give offense to religious minorities.”

The grand generalization could even be read back into the text. We could take “establishment of religion” as “religious establishment”; any church or religious body is an “establishment” in the same way that a tavern is an “establishment”. Then the rest of the clause (“Congress shall make no law respecting ... ”) is read with a modern slant on “respecting”. To “respect” a religious establishment is to give it any credence or indicate agreement with (show respect for) that creed. The dictionary admits of at least this much play. See William W. Van Alstyne, What is “an Establishment of Religion”?, 65 N.C.L.Rev. 909, 913-16 (1987). This does not contradict any of the other functions of the Clause and so can be taken to reinforce the results of the process of generalization. (The small difficulty is that it condemns as unconstitutional the conduct of the First Congress, President Washington, and the others who contemporaneously with the creation of the first amendment took public stands on religious questions.)

The most difficult task of judging is to identify the appropriate level of generality at which to understand a text, a task that is complicated when the practice at hand was unknown in 1789. See Oilman v. Evans, 750 F.2d 970, 995-98 (D.C.Cir.1984) (en banc) (Bork, J., concurring). The appropriate level of generality will be different from text to text. The polar alternative to boundless generality, a narrow minded literalism under which only evils identified in the debates of the 1780s are forbidden, is no more acceptable, for the reasons Judge Bork explained. In selecting the appropriate level of generality, the judge must understand the structure of the document and the kinds of concerns that gave it birth— and the limits attached to the rule being created.

Taking texts at an excessive level of generality denies to authors the ability to influence the understanding of their choices. One of the most fundamental drafting choices is between a rule and a standard. The rule identifies cases of concern and prescribes outcomes for them. The standard identifies an objective (a value) and transfers to some other body the decisions about how much of that value to achieve. The “reasonableness” requirement of the fourth amendment is a good example of a standard, and the quartering requirement of the third amendment is a good example of a rule. When a text creates a rule, decisions about how much of the end in view to achieve, and at whose expense, have been made by the enacting body; a standard postpones and transfers to others much of that decisionmaking.

Until quite recently the Supreme Court treated the first amendment as a constitutional rule. It generally forbade “balancing”; that had been done by the Framers; indeed the principal function of the amendment was to ensure that Congress did not start balancing things like speech and religion against other social goals. Balancing was employed only to denounce effects on speech of regulations seemingly limited to action. See John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv.L.Rev. 1482 (1975). Almost without explanation the speech and religion clauses of the first amendment now are treated as standards. The transmutation of a rule into a standard does more than affect meaning: it changes the identity of the decisionmaker. See also T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 966-68, 984-95 (1987).

Most texts are rules, at least within some domain. Their authors choose the objective and how much of it to achieve. That is, they contain both a direction in which to move and a stopping point. No one can pursue the former to the exclusion of the latter without dishonoring an essential part of the enactment. Rodriguez v. United States, — U.S.-, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987); In re Erickson, 815 F.2d 1090, 1094 (7th Cir.1987). Understanding the end in view is an essential ingredient of construing either a rule or a standard, but when a rule is involved the author’s objective is only a part of the full analysis: the court also must identify the limits on the achievement of that end. And the court must do this conscious that it is attempting to reconstruct and abide by someone else’s decision. When a standard is involved, the court need only make its own best decision.

The migration from rule to standard in constitutional law erodes limits of every kind. It erodes the boundary between legislative and judicial functions, because at a high enough level of generality every constitutional doctrine tells the political branches to select wise policy. It erodes the boundary between past and present, because standards honor the past only to the extent the past transferred decision-making authority to someone now living; the keeper of the standard need not honor any other concrete decision of the grantor.

If the Constitution is simply a collection of standards, judges readily can adjust the rules to the times and their circumstances. The price of this, however, is the elimination of rules. The only feature of history that seems to bind is the decision (actually one inferred from the structure of government rather than located in the text) transferring decisionmaking authority to judges. As for the rest, there are only goals and values, which do not bind. The Constitution becomes a general prohibition of evil— as contemporary moral standards identify evil. I for one am “troubled ... by an approach to constitutional interpretation that by watering down a strongly worded clause of the Constitution ... and thickening a watery clause ... homogenizes a diverse text.” Chicago Board of Realtors v. City of Chicago, 819 F.2d 732, 744 (7th Cir.1987).

The ends Jefferson and Madison pursued are clear now as long ago. They wanted government, state and federal, to have nothing whatever to do with religion, pro or con. They took this view on the basis of considerations of political philosophy that are as powerful today — when theocratic and atheistic states rule much of the world — as they ever were. See, e.g., Jefferson’s eloquent Notes on the State of Virginia 160 (1784), reprinted in 5 The Founders’ Constitution 79-80. But Madison did not propose, and the states did not ratify, a text that terminates all intercourse between church and state. The Establishment Clause expunges a certain kind of relationship, an “establishment” — a term with meaning, denoting a relationship characterized by public funding and legal penalties. To say that a broader prohibition would achieve more of the end in view is true but irrelevant, for it assumes away the character of the Establishment Clause as a rule — as a text binding judges today just the way it bound the Congress of 1792. We should not drain constitutional terms of meaning in order to create grand generalities that we can imbue with our own elaborations on the purposes or directions these terms imply.

The power of judges to “say what the law is” comes from a belief that there is law to declare. That belief can be sustained only when we honor the limits on the original decisions, for they are every bit as important as the ends in view. To pursue the ends at the expense of the limits is to reject the text we purport to enforce, to make law depend on the will of the interpreter rather than the decision of the author, and to call into question judges’ authority to have the final word on debatable issues of public life. When the broader prohibition also sweeps away the practices of the Framers themselves, it is implausible as well as inappropriate. We should not treat them as hypocrites about their own handiwork.

As a legislator or moral philosopher, I would join Madison in thinking that civil authority should not support religion in any way. If this means leaving the celebration of Christmas to the people without the dubious aid of the pasteurized and homogenized religious symbols that appear in civic displays, that will at once strengthen genuine religious resolve and protect the sensibilities of dissenters. But our function is not to pursue Madison’s objective as far as it can be pushed, however beneficent that conclusion may be; it is to enforce a text, the limits of which bind us just as they do the political branches. To the extent the Supreme Court today pursues a different conception of the judicial role under the Establishment Clause, it has yet to justify that conception, which is not congruent with the Court’s stated view that it is under the sway of history. Yet for reasons I have spelled out in Part II, even the Court’s current understanding of the Establishment Clause does not support the plaintiffs. Chicago may exhibit all of the traditional symbols of Christmas during Yuletide.

This case puts political and moral philosophies in conflict with constitutional history and text. In that contest there can be but one winner. I respectfully dissent.

1 . Subject to the proviso that the government may and sometimes must accommodate religious beliefs, so long as the government does not distort religious choice. See Corporation of Presiding Bishop v. Amos, — U.S. -, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987); Michael W. McConnell, Neutrality Under the Religion Clauses, 81 Nw. U.L.Rev. 146 (1986).

2 . See Levy, The Establishment Clause 100. In 1817, after leaving office, Madison confessed that these proclamations violated the principles of separation for which he stood but pleaded "the legal aphorism de minimis non curat lex." Elizabeth Fleet (ed.), Madison's “DetachedMemoranda", 3 William & Mary Quarterly 554, 559 (1946), reprinted in Philip B. Kurland & Ralph Lerner (eds.), 5 The Founders' Constitution 104 (1987).

3 . See his letter to Rev. Samuel Miller, in 5 The Founders' Constitution 98-99.

4 . The treaties are collected in Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction 261-70 (1982).

5 . E.g., the Proclamation of October 3, 1789, which begins: "Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor” and then sets Thursday, November 26, 1789, as a day "to be devoted ... to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care”, and much more in the same vein. 5 The Founders’ Constitution 94. Washington issued this proclamation on the joint recommendation of both Houses of Congress, ibid., which only days before (on September 25) had sent the text of the Establishment Clause to the states for ratification.

6 . See also Stein v. Plainwell Community Schools, 822 F.2d 1406 (6th Cir.1987), holding that high school commencements may open with prayer, provided the prayer is non-denominational. One judge of the panel would have allowed explicit references to Jesus in these prayers.