Justice Brennan's Dissent

Tom Shipka

There are powerful forces in America today promoting the entanglement of church and state. Dozens of religious organizations intrude into politics in defiance of the laws granting them tax-exempt status. (1) The courts are ever more receptive to entanglement as was shown last year when the Supreme Court approved President Bush's faith-based initiatives which distribute huge grants to religious organizations. (2) The Congress is ever more receptive to entanglement as was shown in December when the U.S. House of Representatives, anxious to pander to the religiosity of their constituents and to placate the religious right, approved a resolution "Recognizing the Importance of Christianity and the Christian Faith." (3) And mainstream America is also receptive to entanglement. Surveys show that 74 percent of Americans believe it is proper to display the Ten Commandments in government buildings year round and 83 percent believe that displays of Christian symbols should be allowed on government property during the Christmas season. (4)
So, what's wrong with church and state cozying up to one another? In 1984 Supreme Court Justice, William Brennan, an Irish Catholic, gave four major objections to church-state entanglement in his dissent in a 1984 decision which approved a nativity scene in Pawtucket, Rhode Island. (5)
Firstly, he wrote, it violates the Constitution. The Establishment Clause requires government to be neutral to religion, neither helping nor hindering it, and to treat all sects equally. A government display of Christian symbols goes beyond mere acknowledgement or accommodation of religion to an endorsement of it. Proof of this is found in the fact that governments which erect a display with religious symbols seldom if ever post a disclaimer alongside the display saying that the display does not imply endorsement of the religion.
Secondly, a government display of Christian symbols threatens religious diversity and marginalizes citizens of other faiths and no faith. Such displays send the message that they are outsiders whose views "are not similarly worthy of public recognition or entitled to public support."
Thirdly, the sectarian significance of a government-sponsored nativity scene is not diminished if secular components such as a Santa are added because a nativity scene "is the chief symbol" of the uniquely Christian belief that Jesus is "the divine Savior" who was brought into the world miraculously "to illuminate a path toward salvation and redemption."
Fourthly, just because Christmas is a national holiday does not imply that it is constitutionally proper for government to celebrate the holiday in a sectarian fashion. Government may "recognize the holiday's traditional secular elements of gift-giving, public festivities, and community spirit..." but it may not "embrace the distinctively sectarian aspects of the holiday" such as a nativity scene, a cross, or a Bible.
Jurists such as former Justice Brennan are swimming upstream in American culture today and that is all the more reason to summon his counsel. In America all of us have a constitutional right to display religious symbols at home, in our churches, and in our businesses. That should satisfy any reasonable believer. Those who work to entangle church and state are undermining the First Amendment, threatening religious diversity, and promoting the tyranny of the majority.


  1. Americans United for the Separation of Church and State monitors and publicizesthis problem. See www.au.org.
  2. Hein v. Freedom from Religion Foundation, Inc., 2007
  3. H. Res. 874, introduced by Rep. Steve King, Republican of Iowa, had 51 co-sponsors and passed with 372 votes. 9 members voted "nay," 10 voted "present,' and 40 didn't vote. See News Release of the Freedom from Religion Foundation 12-14-07 at www.ffrf.org.
  4. The Pew Forum of Religion & Public Life, June 2007, p. 1. In this vein, a newly constructed 9-11 memorial on public land in Austintown, Ohio, includes a mini-church adorned with a cross.
  5. Lynch v. Donnelly, 1984

© 2008 Tom Shipka