Samuel Alito

“ Although the religious and indeed sectarian significance of the creche . . . is not neutralized by the setting, the overall holiday setting changes what viewers may fairly understand to be the purpose of the display -- as a typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content. The display celebrates a public holiday, and no one contends that declaration of that holiday is understood to be an endorsement of religion. The holiday itself has very strong secular components and traditions. ”

“ It is difficult to suggest that anyone could have failed to receive a message of government sponsorship after observing Santa Claus ride the city fire engine to the park to join with the mayor of Pawtucket in inaugurating the holiday season by turning on the lights of the city-owned display. ”

“ Although the original Jersey City display was ultimately struck down, no Supreme Court or Third Circuit precedent clearly established that it was unconstitutional until the prior panel handed down its decision, and therefore the city officials' decision to continue to erect that display, which had been put up for decades, can hardly be viewed as evidence of an intent to flout the Establishment Clause. ”

“ Thus, the dissent's point boils down to this: the Jersey City display differed from the Lynch display in that it included a large menorah and a smaller number of secular symbols. But any suggestion that these factors are dispositive for Establishment Clause purposes is belied by the Supreme Court's holding in Allegheny County that the display of a large menorah and one secular symbol, a Christmas tree, in front of the City-County Building in Pittsburgh was constitutional. ”

“ VI. Before concluding, we find it necessary to explain why we do not agree with some of the prior panel's dicta regarding the modified display. Our central point of disagreement concerns the prior panel's suggestion that any inclusion of a creche -- but not a menorah -- in a display in front of a prominent government building, such as a city hall, is incompatible with the Establishment Clause. ”

“ As we have noted, in Allegheny County, Justice O'Connor, as well as Justice Blackmun, seems to have attributed some significance to the fact that the display in Lynch was situated on private property in the center of Pawtucket's commercial district, but to go further, as the prior panel did, and say that the Pawtucket display bore "no external indicia of government endorsement" is not correct. In Lynch, every Justice, whether in the majority or the dissent, agreed that by means of its holiday display the city of Pawtucket was endorsing some message. ”

“ Justice O'Connor rejected the suggestion that the display conveyed "a message that endorses religion over nonreligion," observing that " [a] reasonable observer would . . . appreciate that the combined display [was] an effort to acknowledge the cultural diversity of our country and to convey tolerance of different choices in matters of religious belief or nonbelief by recognizing that the winter holiday season is celebrated in diverse ways by our citizens." ”

“ He interpreted the display to mean that "both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status in our society." Id. at 616. He noted that the tallest object in the display, the tree, is a secular symbol, and while he recognized that the menorah is a religious symbol, he suggested that it did not in context convey a religious message because of the proximity of the larger tree and the fact that, in his view, there was no comparable secular symbol of Chanukah that the City could have used. ”

“ Observing that the inclusion of the creche had produced no marked dissension prior to the lawsuit then before it, the Court pointedly wrote that " [a] litigant cannot, by the very act of commencing a lawsuit . . . create the appearance of divisiveness and then exploit it as evidence of entanglement." Id. at 684-85. [7]
Justice O'Connor, who joined the opinion of the Court and cast the critical fifth vote in favor of the constitutionality of the Pawtucket display, wrote a concurring opinion "to suggest a clarification of . . . ”

“ Aetna Cas. & Sur. Co., 972 F.2d 53, 58 (3d Cir. 1992) ; Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682, 693-94 (3d Cir. 1991) , aff'd in part and rev'd in part, 505 U.S. 833 (1992) . ”