Richard Lowell Nygaard

“ No bright lines of demarcation have been drawn between religious "establishment" and simple display, and perhaps none of us is capable of accurately drawing such a line given the state of the case-law. I am afraid that the shifting majorities and fact-specific opinions of the Supreme Court in Lynch and Allegheny County provide only a precarious analytical framework for both the public and we inferior federal courts to apply in determining the exact location of the line of demarcation. ”

“ I am not sure I agree with that because when a reasonable observer sees a menorah what would she or he think of except the miracle of the oil, or of the holy candelabrum in the Jewish Temple, and of the Jewish Festival of Lights. Moreover, although the religious impact of a menorah standing alone was debatable, at least by the members of the Supreme court, we have found that the combination of a menorah with a creche communicates a clearly sectarian message. ”

“ Following the Supreme Court's decisions in Lynch and Allegheny County, I conclude that Jersey City's modified display resulted in an unconstitutional establishment of religion.
A. Lynch First, our display is unlike the display that the Supreme Court allowed in Lynch. The majority sees "no reasonable basis," other than the different locations of the displays, "for distinguishing the modified Jersey City display from the display upheld in Lynch." Majority Opinion at 21. I believe that this analysis of the display fails to adequately credit the different contexts of the two displays. ”

“ We have the duty not only to review cases and point out error, but also to provide guidance. We cannot ask others to respect the integrity of our decisions when we ourselves do not; but instead evade the reasoning of a prior panel in the same case. ”

“ The dominant element of each side of the display is a religious symbol. Looking at the display as a whole, rather than focusing on only those elements that were also present in the constitutional displays in Lynch or Allegheny County, it seems to me that the dominant message of the display is an endorsement of religion. ”

“ This clearly contrasts the Allegheny County display with the Jersey City display in which, on both sides of the display, the "predominant" element was sectarian.
Although not determinative, a display's location informs the constitutional analysis. As Justice O'Connor stated in Allegheny County, "the display of religious symbols in public areas of core government buildings runs a special risk of 'making religion relevant, in reality or in public perception, to status in the political community.'" 492 U.S. at 626, 109 S.C.t. ”