Public Displays

The Supreme Court’s approach to public religious displays under the Establishment Clause has long been unstable. Its primary cases fall into two groups: seasonal holiday displays and static monuments (including displays of the Ten Commandments). When it comes to seasonal holiday displays, some commentators have described the Court’s standard as the “three plastic animals rule”—a Christian nativity scene on public property passes muster if it is accompanied by a sufficient combination of Rudolph, Frosty, and their friends.

The key cases pertaining to holiday displays came in the 1980s. In Lynch v. Donnelly, 465 U.S. 668 (1984), the Court upheld the constitutionality of a display cosponsored by city officials in Pawtucket, Rhode Island. The display included a manger scene (also called a creche) alongside other items including “a Santa Claus House, reindeer pulling Santa’s sleigh . . . cutout figures representing such characters as a clown, an elephant, and a teddy bear.” City residents and the local ACLU chapter challenged the inclusion of the creche in the display. Chief Justice Burger’s opinion for the court adopted a contextual approach: “In each case, the inquiry calls for line-drawing; no fixed per se rule can be framed.” Justice O’Connor’s concurrence advocated what came to be known as the “endorsement test,” which evaluated the constitutionality of the display based on whether it could “fairly be understood to convey a message of government endorsement of religion.”

Five years later, in County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989), a divided court concluded that a creche display in a Pittsburgh courthouse violated the establishment clause. But in the same opinion, the Court held that a display in a government building a block away passed muster because it contained a menorah, a Christmas tree, and other decorations. Justice Blackmun’s opinion for the Court observed that “Lynch teaches that government may celebrate Christmas in some manner and form, but not in a way that endorses Christian doctrine.” He noted that the government building display, in contrast to the courthouse display, reflected the “winter holiday season, which has attained a secular status in our society” and characterized Chanukah and Christmas as “winter festivals.”

Static monuments pose similarly vexing problems. The most frequently litigated cases involve some of the thousands of architectural displays of the Ten Commandments. The key cases came down the same day in 2005. In Van Orden v. Perry, 545 U.S. 677 (2005), a 5-4 Court upheld the constitutionality of a Ten Commandments monument in an Austin, Texas, public park. In McCreary County v. American Civil Liberties Union (2005), a 5-4 Court struck down Ten Commandments displays in two Kentucky county courthouses, concluding that the clear legislative intent of the monuments was to promote religion. 

Before Kennedy v. Bremerton School District, much of the doctrine was organized around Lemon’s inquiry into purpose, effect, and entanglement, later supplemented by Justice O’Connor’s “endorsement” test. But the Court applied those tests unevenly. Kennedy confirmed that Lemon no longer supplies the governing framework. The harder question is what replaces it.

American Legion v. American Humanist Association, 588 U.S. 29 (2019), pushed the doctrine further away from Lemon. The Court upheld the Bladensburg Peace Cross, a 32-foot Latin cross erected as a World War I memorial. The plurality reasoned that longstanding monuments, symbols, and practices often acquire additional meanings over time. Their original purposes may become difficult to identify, their messages may evolve, and removal may itself appear hostile rather than neutral. For those reasons, the Court recognized a strong presumption of constitutionality for longstanding religiously expressive monuments. But American Legion did not answer every question. It dealt with an old memorial, not a newly mandated display.

The Fifth Circuit’s recent en banc decision in Nathan v. Alamo Heights Independent School District brings those unresolved questions into sharper focus. Texas S.B. 10 requires public schools to display a state-specified Ten Commandments poster in every classroom. Unlike the Bladensburg Cross, these displays are newly required by statute. Unlike the monuments in Van Orden and American Legion, they are placed in classrooms where children are compelled by law to spend their school days. And unlike Kennedy, which involved a public employee’s private religious expression, Nathan involves a government mandate directing public schools to display a sacred text.

The public-school context had already received special treatment in Stone v. Graham, 449 U.S. 39 (1980), a short per curiam opinion striking down a Kentucky law requiring every public-school classroom to post a copy of the Ten Commandments. In Nathan, the Fifth Circuit had to decide whether Stone remains controlling after American Legion and Kennedy. If Stone survives, Nathan is close to an easy case; if Stone has been displaced along with Lemon’s purpose inquiry, then courts must decide what constitutional principle, if any, limits state-mandated religious displays in public-school classrooms.

The Fifth Circuit majority concluded that Lemon and Stone’s secular-purpose inquiry no longer control after American Legion and Kennedy. Instead, the majority asked whether Texas’s law resembled the “hallmarks” of a founding-era religious establishment. It held that the law did not coerce students into religious observance, did not require recitation or affirmation of the Ten Commandments, did not authorize religious instruction, and did not facially violate either the Establishment Clause or the Free Exercise Clause. The dissents viewed the case differently, emphasizing the distinct constitutional concerns raised by compulsory public education, young students, and a state-selected religious text displayed in every classroom.

Today’s readings leave several questions for us. Does American Legion’s presumption for longstanding monuments have any relevance to a newly enacted classroom-display requirement? Should courts ask whether a display endorses religion, coerces religious exercise, fits within historical practices, or resembles a founding-era establishment? Does the public-school setting change the analysis? And after Kennedy, is the key question whether the challenged practice is consistent with “history and tradition”—or whether that phrase is too indeterminate to discipline judicial analysis?

Reading Assignment:

• American Legion v. American Humanist Association (2019)

• Nathan v. Alamo Heights Independent School District, 173 F.4th 576 (2026)

Optional Reading:

• Michael Stokes Paulsen, “More Light Than Heat,”Scotusblog (June 21, 2019)

• Harvey Weiner, “The Cross May Stand, Though it Offends,”Scotusblog (June 20, 2019)

• Michelle Boorstein, “La.’s Ten Commandments law will test religion-friendly courts, experts say,”Washington Post (June 20, 2024)

Images of Other Public Displays: