MINI BRIEF N U M B E R M B 8 3 2 4 2
David M. Ackerman
American L a w Division
THE LIBRARY OF CONGRESS
CONGRESSIONAL RESEARCH SERVICE
MAJOR ISSUES SYSTEM
DATE ORIGINATED 10/24/83
DATE UPDATED 12/14/83
The Supreme C o u r t , in its 1983-84 t e r m , has to date agreed to review one
Case that involves issues arising under either the establishment or the f r e e
exercise of religion clause of the First Amendment.
case concerns the
constitutionality o f a municipality sponsoring and paying
for a Christmas
display in a downtown park which included a nativity scene a s a central part.
In addition, the Court has denied
review in twelve
establishment or f r e e exercise issues and has made
no decision whether
review seven other cases raising such issues.
PENDING CASES GRANTED REVIEW
Lynch v. D o n n e l l y , 5 2 5 F - S u p p . 1150 (D.R.1. 1981), a f f ' d , 6 9 1 ~ . 2 d 1029
(1st Cir. 1982), cert. gr., 103 S.Ct. 1 7 6 6 (4-18-83) (No. 82-'1256): At issue
ownership a n d erection of a nativity
in this case is whether a city's
a s part of its a n n u a l outdoor Christmas display violates the establishment of
religion clause of the First Amendment.
Each year for 4 0 years the city of
P a w t u c k e t , Rhode I s l a n d , constructed a Christmas display in a downtown
Included in the display were a "talkingw wishing w e l l , a S a n t a l s House
a l i v e Santa), a small village, a grouping of c a r o l e r / m u s ~ c i a n f i g u r e s , and a
life-sized nativity scene.
The nativity s c e n e was purchased with city money
and was maintained and erected each year by city workers.
Upon suit both a Federal district court a n d , on a p p e a l , the Un.ited States
Court of Appeals for the First Circuit held the inclusion
scene to be unconstitutional.
Analyzing t h e , m a t t e r under the tripartite test
of purpose, primary effect, and
entanglement, the trial
evidence not to support the city's claims that Christmas had become a
secular holiday and that the creche had l o s t its religious significance.' The
c o u r t ' r e j e c t e d a s well the city's arguments
that inclusion of
simply served the secular purpose of drawing shoppers to
areao r , alternatively, that it was merely a n example of how Americans
"Christmas," the court f o u n d , "remains a major
day for most sects of Christiansw and the creche retains a
religious significance." While government may constitutionally involve itself
with activities having a religious aspect under
c i r c u m s t a n c e s , the
Court f o u n d , the purpose of i n c l u d i n g . a nativity
scene i n the ChristSmas
display i n this c a s e w a s '"to express the C i t y ' s approval and
the religious message that the symbol convey^.^' Similarly,.. the court helcl,
to g i v e
"appearance of a n official imprimatur on t h e religious message of the
and on Christian beliefs, thereby aiding the Christian religion- and violating
the C i t y ' s constitutional duty to maintain
Christians, non-Ch.ristians, and non-believers."
On th-e entanglement
the court found no administrative entanglement to be created by
inclusion of the c r e c h e , but
i t did
find that political division along
religious lines had
horrifying one of a n g e r , hostility, name c a l l i n g , and political
a l l prompted by the f a c t that someone had questioned'the C i t y ' s ownership and
The court noted that such political division
display of a religious symbol."
was not itself sufficient to invalidate the city's a c t i o n , but said i t w a s a
For a l l these
"warning signal" of a possible establishment clause violation.
reasons, the Court held the city's sponsorship of the nativity
scene to be
The appellate court a f f i r m e d , 2 - 1 , but
a different framework of
Instead of the tripartite
c o u r t , the
appellate court employed a strict scrutiny a n a l y s i s , meaning that the city's
sponsorship of the nativity scene could pass constitutional muster
shown to serve a compelling governmental interest and if "closely fitted1' to
furthering that interest.
the latter test was
mandated by the Supreme Court's decision i n Lar'son v. Valente, 4 5 6 U.S.- 228
(19821, for use i n cases such as this one which
involved governmental a c t s
On the constitutional i s s u e , the
appellate court found the trial court's findings regarding the purpose
including the creche conclusive:
"If one is unable
t o demonstrate any
legitimate purpose or i n t e r e s t , it is hardly necessary to inquire whether
Compelling purpose or interest can be shown."
that Christmas and all of its symbols, including the c r e c h e , have become part
Of Our national life and culture and that including the creche as part
display of items associated with Christmas does nothing more
that the holiday is at hand.
After granting the United States permission to a r g u e the case on the
of the municipality, the Court heard oral argument on Oct. 4 , 1983.
J a f f r e e , 705
Board of School Commissioners of Mobile C o u n t y , Alabama v.
F.2d 1526 (11th Cir.), pet. for cert. f i l e d , 5 2 U.S.L.W.
Lower court held
teachers' p r a c t i c e s , which
condoned by school board, of leading students in prayer during school day.
Clifford V. Grutka, 4 4 5 N.E.2d 1015 (Ind. Ct. App., 3d Dist.),
Cert. f i l e d , 5 2 U.S.L.W. 3399 (11-1-83) (No. 83-736):
that First Amendment did not preclude trial court from adjudicating
claim that trust established f o r the perpetual care of
t h e parish
should be dissolved and t h e funds turned over to the parish.
Duro v. District Attorney, Second Judicial District of North C a r o l i n a , 7 1 2
F.2d 96. (4th Cir.), pet. for cert. f i l e d , 5 2 U.S.L.W.
Lower court held that free exercise clause did not bar
from prosecuting a Pentecostal parent who refused to
public or private
school for violating
that refusal was based
Hopi Indian Tribe v. B l o c k , 708 F.2d
(No. 83-589) : Lower
f i l e d , 5 2 U.S..L.W.
Indians' f r e e exercise of
recreational development of national
certain religious practices.
Navajo Medicinemen's Association v. Block, 7 0 8 F.2d 7 3 5 (D.C. Cir..), pet.
for cert. f i l e d , 5 2 U.S.L.W. 3344 (10-21-83) (No. 83-669):
Lower court held
that Indians' f r e e exercise rights were not violated .by Forest S e r v i c e ' s
Scott V . ' ~ o S e n b e r g , 7 0 2 F.26 1263 (9th Cir.), pet.
ior cert. f i l e d , 5 2
3190 and 329'4 (9-1-83 and 10-11-83) (Nos. 83-373 and 83-570):
Court held public interest in prevention of fraud to outweigh minister's f r e e
exercise Claims i n F C C investigation of church's TV and
stations f o r
fraudulent solicitations of funds and dismissed
suit f o r damages and
Wallace v. J a f f r e e , 7 0 5 F.2d 1 5 2 6 (11th.Cir.) , pet. for cert.
unconstitutional a s
U.S.L.W. 3441 (11-14-83 ) (No. 83-8 12) : Lower court held
establishments of relig ion two St a t e statutes, one of which
particular prayer to be recited b Y t eachers and students a t the beginning
a moment of silence for
each school d a y , the s e cond of wh ich prescribed
T h e Justice Department has
purposes of "meditation or volunt a r y prayer.
for certior a r i
filed a n amicus brief i n partial
asking that the Court r,eview the con stitutionality of the
silent meditat i o n
CASES DENIED REVIEW
5 2 U.S.L.W.
Avitzur V. Avitzur, 5 8 N.Y.S. 2d 1 0 8 (Ct. App.) cert.
3 2 6 2 (10-3-83) (No. 82-1854):
State court held the First Amendment not
bar trial court from adjudicating c a s e in which the plaintiff sought a court
order compelling her former spouse to appear before a Jewish
Court SO that she Could obtain a religious divorce (a "Getw).
Chevren v. Bechtel, Inc., 4 5 5 N.Y.S. 2d 1015
den. , 5 2 U.S.W. 3263
State court held Jewish
woman's employment discrimination suit alleging that she had been
f o r disclosing employer's cooperation with Arab boycott of f i r m s with Jewish
employees to be time-barred when suit w a s not brought until f o u r years after
Church of Christ o f Collinsville, Okla. v. G r a h a m , Civil No.
(Okla. Dist. Ct., Oct. 1 5 , 1983), cert. den. 5 2 U.S.L.W.
3262 (10-3-83) (No.
State c o u r t held
the First Amendment
adjudicating former m e m b e r ' s suit against church f o r invasion of
inchurch disciplinary proceeding.
I l l i n o i s , Inc., 1 1 2 Ill.
City of Evanston v. Lubavitch Chabad House of
A p p 3 6 233' (1st Dist. 1982), cert. den., 5 2 U.S.L.W.
State court held municipality's denial of
special . u s e permit
Jewish organization to use house
i n residential district for religious
purposes not to violate free exercise clause.
Crow V. Bullet, Civil No. 82-1852 (8th Cir. May 1 0 , 1983), cert. den.,
U.S.L.W. 3370 (11-'7-83) (No. 83-43):
Lower court held state regulation
Indian r e l i g i o u s - ceremonies and
p u b l i c - recreational
in state park
Ceremonial site not to violate Indians' f r e e exercise.rights.
F r a m e v. South Bend Community School Corporation, Civil No.
C i , Nov. 3 0 , 1982), cert. den., 5 2 U.S..Li.W. 3 2 6 2 -(lo-3-83)
school district's f a i l u r e to provide .free bus
transportation to parochial school students did not violace either the f r e e
exercise or equal protection
that trial court
abstained in favor of state court proceedings o n interpretat'ion of state l a w
International Society for Krishna Consciousness v.
Marsland, 6 5 7 P.
1035 (Haw.), appeal dism'd for want of a
substantial federal question, 5 2
U.S.L.W. 3260 (10-3-83) (No. 82-2070):
State court upheld z o n i n g standard
limiting use of structure as residence to no more than five unrelated persons
despite claim that structure also was used a s a church.
Lakewood, O h i o , Congregation of Jehovah's Witnesses,
Lakewood, O h i o , 6 9 9 F.2d 303 (6th Cir. 1982), cert. den.,
5 2 U.S.L.W.
(10-3-83) (No. 82-1769):
that city's zoning
excluding churches from single-family residential districts which
9 0 % Of the city did not violate the church's f r e e exercise rights.
Larsen v. Kirkham, Civil No. 80-2152 (10th C i r , Dec.
2 0 , 1982), cert.
c o u r t found no
5 2 U.S.L.W.
(No. 83-92) :
i n exemption
from state and federal
discrimination in employment.
Members of the Jamestown School Committee v. S c h m i B t , 699 F.2d 1 (1st Cir.
19831, cert. den., 5 2 U.S.L.W.
(10-3-83). (No. 83-158) :
upheld Rhode Island statute subsidizing bus transportation
f o r both
and private school students up to 1 5 miles
boundaries so long a s distance and cost of transportation provided to public
and private school students remained "roughly proportional."
New Mexico v. Burciaga, Civil No. 83-1414 (10th Cir. Apr. 8 , 1983)
denying writ of prohibition), cert. den., 5 2 U.S.L.W.
a g a i n s t federal
Lower court denied
state a writ
district court decree in Duffy v. Las Cruces public Schools, 5 5 7 F.Supp. 1013
(D. N.Mex.1, appeal pending sub nom., Walsh v. D u f f y , No. 83(10th Cir. ,
Mar. 1 4 , 1983), which held unconstitutional a state statute permitting
School boards to have a perioa of silence at the beginning of each school day
for "contemplation, meditation, o r prayer."
Solon Baptist T e m p l e , Iic. v. City of S o l o n , Civ.
8th Dist.) , cert. den., 5 2 U.S.L.W. 3265 (10-3-83) (No. 83-44) :
court dismissed church's claim that city officials violated the f r e e exercise
clause by disapproving the church's building plans and ordering the church to
Correct numerous building and fire c o d e violations.