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            Title American Civil Liberties Union of New Jersey v. Schundler

 

            Date 1999

            By Alito

            Subject First Amendment\Freedom of Religion

                

 Contents

 

 

Page 1

LEXSEE 168 F.3D 92

AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, on behalf of its members, ROBERT LANDER, ADAM JACOBS, JOEL SOLOW and ANN SORREL v. BRET SCHUNDLER, in his official capacity as Mayor of the City of Jersey City, New Jersey; THE CITY COUNCIL OF JERSEY CITY, NEW JERSEY; CITY OF JERSEY CITY, NEW JERSEY, Appellants

No. 98-5021

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

168 F.3d 92; 1999 U.S. App. LEXIS 2541

August 6, 1998, Argued

February 16, 1999, Filed

PRIOR HISTORY:   **1

ON   APPEAL   FROM   THE   UNITED   STATES DISTRICT  COURT  FOR  THE  DISTRICT  OF  NEW JERSEY.   (D.C.   No.   95-cv--00206).   (District   Judge: Honorable Dickinson R. Debevoise).

DISPOSITION:

Affirmed in part, reversed in part and remanded.

CASE SUMMARY:

PROCEDURAL POSTURE: Defendants, the city, city council, and mayor, appealed the decision of the United States District Court for the District of New Jersey, which after remand from the appellate court, affirmed its grant of summary judgment for plaintiffs on the original hol- iday display, and held that the modified holiday display was also unconstitutional. The district court also denied defendants' motion for Rule 60(b)(5) relief.

OVERVIEW: Defendants, city, city council, and mayor, challenged the decision of the district court, which had denied  its  Fed.  R.  Civ.  P.  60(b)(5)  motion  and  entered summary judgment for plaintiffs and permanent injunc- tions against defendants, holding that a holiday display violated the Establishment Clause of the federal consti- tution, as well as a parallel state constitutional provision. The original display featured a crèche and a menorah on city property in front of the city hall. The modified dis- play added cultural and secular symbols. On appeal, the court upheld the trial court's denial of the Rule 60(b)(5) motion, holding that defendant's legal basis for the mo- tion was without merit because the original display vi-

olated the Establishment Clause, as it communicated an endorsement of Christianity and Judaism. Therefore, an analysis of the presence or absence of excessive entangle- ment was unnecessary. However, the court reversed the district  court's  judgment  that  the  modified  display  was unconstitutional, finding that the addition of secular sym- bols diluted the religious endorsement contained in the original display and, therefore, the modified display was constitutional.

OUTCOME: The court affirmed the district court order denying defendants' motion for relief from judgment un- der the civil rules. However, the court reversed the district court's summary judgment with respect to the modified display and injunction. The court held the modified dis- play was constitutional and remanded the case with in- structions to grant summary judgment for defendants as the modified version carried no government endorsement of religion.

CORE  TERMS:  display,  creche,  religious,  modified, menorah,  symbol,  message,  secular,  holiday,  religion, tree,  endorsement,  front,  observer,  entanglement,  cele- bration, conveyed, scene, tall, cultural, sectarian, erected, celebrate,  season,  convey,  displayed,  erecting,  ethnic, dicta, inclusion

LexisNexis(R) Headnotes

Civil Procedure > Relief From Judgment

HN1  Under Fed. R. Civ. P. 60(b)(5), a court may relieve a party from a final judgment or order when it is no longer equitable that the judgment should have prospective ap- plication. A party can show that a judgment should no longer have prospective application if it can demonstrate

168 F.3d 92, *; 1999 U.S. App. LEXIS 2541, **1

Page 2

a significant change in either factual conditions or the law. Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Religion > Establishment of Religion

HN2  In Agostini, the court modified the Establishment Clause test which asked (1) whether a challenged gov- ernment practice had a secular purpose, (2) whether its principal or primary effect advanced or inhibited religion, and (3) whether it created an excessive entanglement of the government with religion. The Agostini Court stated that Lemon's entanglement prong is best understood and treated as an aspect of the inquiry into a statute's effect. Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Religion > Establishment of Religion

HN3   Demystification,  desanctification,  and  deconse- cration suggest a process of profanation, something that the Establishment Clause neither demands nor tolerates. Government conduct violates the Establishment Clause if its primary effect is to advance or inhibit religion. Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Religion > Establishment of Religion

HN4  A litigant cannot, by the very act of commencing a lawsuit create the appearance of divisiveness and then exploit it as evidence of entanglement.

Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Religion > Establishment of Religion

HN5  If government is to participate in its citizens' cel- ebration  of  a  holiday  that  contains  both  a  secular  and religious  component,  enforced  recognition  of  only  the secular aspect would signify the callous indifference to- ward  religious  faith  that  caselaw  and  traditions  do  not require .

Constitutional   Law   >   Fundamental   Freedoms   > Freedom of Religion > Establishment of Religion

HN6  In determining whether a government practice en- dorses religion, the history and ubiquity of a practice is relevant because it provides part of the context in which a reasonable observer evaluates whether a challenged gov- ernmental practice conveys a message of endorsement of religion.

COUNSEL:

KEVIN J. HASSON (ARGUED), ERIC W. TREENE, The  Becket  Fund  for  Religious  Liberty,  Washington, D.C., Counsel for Appellants.

NATHAN              LEWIN,  RICHARD              W.           GARNETT

(ARGUED),            MILLER,                 CASSIDY,              LARROCA             & LEWIN,  Washington,   D.C.,   Counsel  for  Chabad  of Pittsburgh as Amicus Curiae in Support of Defendants- Appellants.

RONALD               K.             CHEN      (ARGUED),            RUTGERS CONSTITUTIONAL  LITIGATION  CLINIC,  Rutgers Law School, Newark, NJ, Counsel for Appellee.

JUDGES:

Before:    NYGAARD,   ALITO,   and   RENDELL, Circuit Judges. NYGAARD, Circuit Judge. Dissenting.

OPINIONBY:

ALITO

OPINION:

*94   OPINION OF THE COURT

ALITO, Circuit Judge:

This  appeal  concerns  the  constitutionality  of  two Jersey City "holiday" displays. The first, which featured a menorah and a Christmas tree, was annually placed in front of City   *95   Hall for several decades. In 1995, the District Court permanently enjoined the City from con- tinuing the practice of erecting this or any substantially similar display, see ACLU of N.J. v. Schundler, **2   931

F.  Supp.  1180  (D.N.J.  1995),  and  a  prior  panel  of  our court affirmed that decision.  ACLU of N.J. v. Schundler,

104 F.3d 1435, 1444-50 (1997). Jersey City subsequently moved for relief from that order under Rule 60(b)(5) of the  Federal  Rules  of  Civil  Procedure,  contending  that the Supreme Court's intervening decision in Agostini v. Felton,  521  U.S.  203,  117  S.  Ct.  1997,  138  L.  Ed.  2d

391 (1997), had undermined the panel's reasoning. The District Court denied this motion, and we now affirm that decision.

Jersey City also challenges the District Court's most recent decision regarding a modified holiday display that the City put up after the original display was enjoined. The modified display contained not only a creche, a menorah, and Christmas tree, but also large plastic figures of Santa Claus and Frosty the Snowman, a red sled, and Kwanzaa symbols on the tree. In addition, the display contained two signs stating that the display was one of a series of dis- plays put up by the City throughout the year to celebrate its  residents'  cultural  and  ethnic  diversity.  We  find  this modified display to be indistinguishable in any constitu- tionally significant respect from the displays **3  upheld by the Supreme Court in Lynch v. Donnelly, 465 U.S. 668,

79 L. Ed. 2d 604,  104 S. Ct. 1355 (1984), and County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573,

106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989) (hereinafter

"Allegheny County"), and we therefore hold that Jersey

City's modified display is likewise constitutional. I.

168 F.3d 92, *95; 1999 U.S. App. LEXIS 2541, **3

Page 3

From at least 1965 until 1995, the City of Jersey City commemorated the winter holiday season by displaying a creche and a menorah on city property in front of City Hall. The creche and menorah were owned, maintained, and stored by the City. The creche, which was displayed during the period preceding and following Christmas, in- cluded a manger that measured 11' 9" by 7' by 4' 4". It also included figures of Mary, Joseph, the Baby Jesus, and the Three Wise Men; these varied in height from 12" to 27". Surrounded by a post-rail fence, the creche was placed on the right side of City Hall. The menorah, measuring 19' by 14', was displayed during Chanukah on the left side of City Hall. (Also on the left-side of the lawn was a 13' Christmas tree,  but this apparently escaped the District Court's attention. n1 Because the date of Chanukah gen- erally **4   falls near that of Christmas, the creche and menorah were usually displayed simultaneously,  but in

1994, when the plaintiffs commenced this suit, Chanukah began unusually early, on November 28, and therefore the menorah was taken down shortly before the creche went up. n2

n1 See 104 F.3d at 1438 n.1.

n2 According to the City, such an anomaly will not recur until 2014.

When  Jersey  City  erected  its  traditional  display  in

1994, the American Civil Liberties Union sent the City a letter asking it to discontinue its practice of displaying re- ligious symbols on public property. In response, the City placed a sign adjacent to the display stating:  "Through this display and others throughout the year, the City of Jersey City is pleased to celebrate the diverse cultural and ethnic heritages of its peoples." Jersey City maintains that the sign's reference to other events refers to, among other things,  the  City's  annual  commemoration  of  Ramadan, the annual Grand Phagwah Parade held to celebrate the Hindu New **5    Year,  and a wide variety of cultural events related to the many diverse ethnic groups in the City.

On December 21, 1994, the ACLU and other plain- tiffs filed a complaint in state court against the City, the mayor, and the city council (hereinafter collectively "the City"),  challenging the City's display under the federal and state constitutions. n3 In January   *96    1995, the City  removed  the  action  to  the  District  Court,  and  on November 28, 1995, the District Court granted the plain- tiffs'  motion  for  summary  judgment  and  held  that  the City's  display  violated  the  Establishment  Clause  of  the federal Constitution, as well as a parallel state constitu- tional provision. The District Court permanently enjoined

the City from erecting its traditional display or any sub- stantially  similar  scene  or  display  at  the  front  entrance of  City  Hall  or  on  other  property  that  the  City  owned, maintained, or controlled.

n3 Neither side has argued in this appeal that the state constitution imposes tighter restrictions than the federal Constitution. Therefore, for purposes of this litigation we treat the two bodies of law as co- extensive. See ACLU of N.J v. Schundler, 104 F.3d at 1446 n. 11.

**6

The City announced that it would appeal the decision, but in the meantime, on December 13, 1995, it erected a modified display that included, in addition to the elements in  the  previous  display,  a  4'  tall  plastic  figure  of  Santa Claus, a 3' 10" tall plastic figure of Frosty the Snowman, a 4' tall sled, Kwanzaa symbols on the tree, and two signs, each approximately 2' by 3', stating:  "Through this dis- play and others throughout the year,  the City of Jersey City is pleased to celebrate the diverse cultural and ethnic heritages of its peoples." See Appendix A (display on left side of City Hall); Appendix B (display on right side of City Hall); Appendix C (map of display).

The  plaintiffs  then  moved  to  have  the  City  held  in contempt of the District Court's injunction, and they also sought a preliminary injunction against the modified dis- play. On December 18,  the District Court denied these requests, concluding that the addition of the secular sym- bols  rendered  the  modified  display  constitutionally  un- objectionable. Ruling quickly, the District Court did not analyze the modified display at length but wrote:

I conclude that by making these additions de- fendants have sufficiently **7   demystified the holy , they have sufficiently desanctified sacred  symbols,  and  they  have  sufficiently deconsecrated the sacred to escape the con- fines of the injunctive order in this case.

On appeal, a panel of our court affirmed the District Court's decision regarding the original display. 104 F.3d at 1444-50. The panel noted the religious significance of the creche and the menorah, as well as the City's annual expenditure of some public funds to erect and maintain the display. Id. at 1445. The panel concluded that "the origi- nal  display cannot be viewed as anything but a constitu- tionally impermissible dual endorsement of Christianity and Judaism." 104 F.3d at 1446.

The panel cited three reasons for rejecting the City's argument  that  the  display  was  not  an  endorsement  of Christianity and Judaism but part of the City's year-long

168 F.3d 92, *96; 1999 U.S. App. LEXIS 2541, **7

Page 4

celebration  of  its  people's  many  different  religious  and ethnic  backgrounds.   104  F.3d  at  1446-50.  The  panel concluded (a) that government endorsement of many dif- ferent religions violated the Establishment Clause, id. at

1447, (b) that a reasonable observer, viewing the holiday display, would not be aware of the City's other religious and cultural **8   celebrations at other times of the year, id. at 1447-49, and (c) that the City's policy of celebrating many different religions was a quintessential example of government entanglement with religion. Id. at 1449-50. In reaching the latter conclusion regarding entanglement, the  prior  panel  relied  chiefly  on  Aguilar  v.  Felton,  473

U.S. 402, 87 L. Ed. 2d 290, 105 S. Ct. 3232 (1985). See

104 F.3d at 1449-50.

Turning to the modified display, the panel held that the

District Court's analysis was incorrect.  104 F.3d at 1450-

52.  The  panel  found  no  basis  in  Supreme  Court  cases for what it termed the District Court's "'demystification' approach,"  and  the  panel  noted  that  the  parties  agreed that  this  approach  was  "flawed."  Id.  at  1450-51  &  nn.

17-18. The panel "concluded that the district court erred in determining that the constitutionality of the modified display depended on whether the presence of Frosty and Santa 'demystified' the creche and the menorah." Id. at

1451 (footnote omitted). The panel therefore remanded the  case  for  the  District  Court  to  analyze  the  modified display  pursuant  to  the  proper  standards.   Id.  at  1452. But while remanding the question of the **9    consti- tutionality of the modified display for reconsideration by the District Court, the panel also spent several paragraphs expressing in dicta a skeptical view about the constitu- tionality of the modified display. Id. at 1451-52.

*97   On remand, the plaintiffs moved for summary judgment and a permanent injunction barring the modi- fied display. The defendants cross-moved for summary judgment and also filed a motion under Fed. R. Civ. P.

60(b)(5) for relief from the District Court's earlier injunc- tion on the ground that the Supreme Court's decision in Agostini, which overruled Aguilar, had undermined the panel's reasoning. Specifically, the defendants pointed to the panel's reliance on the concept of "entanglement" and the Supreme Court's decision in Agostini that entangle- ment should no longer to be considered an independent test but should be viewed along with other factors as "an aspect of the inquiry into . . . effect." 117 S. Ct. at 2015. Reversing its prior position, the District Court granted summary  judgment  for  the  plaintiffs  and  held  that  the modified  display  violated  the  Constitution.  The  Court wrote that the panel's "discussion of the context of the display after **10   the addition of Frosty the Snowman, Santa and a red sled leaves little doubt that it would con- clude on the basis of the facts in the record before it that

even after these additions the display communicates the City's endorsement of Christianity and Judaism in viola- tion of the Establishment Clause." The District Court also denied  the  defendants'  motion  for  Rule  60(b)(5)  relief, and the defendants then took this appeal.

II.

We first consider the City's challenge to the denial of its Rule 60(b)(5) motion. HN1  Under that rule, a court may relieve a party from a final judgment or order when

"it is no longer equitable that the judgment should have prospective application." Fed. R. Civ. P. 60(b)(5). A party can show that a judgment should no longer have prospec- tive application if it can demonstrate "a significant change in either factual conditions or the law." Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384, 116 L. Ed. 2d

867, 112 S. Ct. 748 (1992).

HN2   In  Agostini,  the  Supreme  Court  modified the  Establishment  Clause  test  articulated  in  Lemon  v. Kurtzman, 403 U.S. 602, 612-13, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971), which asked (1) whether a challenged government practice **11    had a secular purpose, (2) whether  its  principal  or  primary  effect  advanced  or  in- hibited religion, and (3) whether it created an excessive entanglement of the government with religion. See ACLU of N.J. v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d

1471,  1483  (3d  Cir.  1996).  The  Agostini  Court  stated that Lemon's entanglement prong is best understood and treated "as an aspect of the inquiry into a statute's effect." Agostini, 117 S. Ct. at 2015. While this statement merges the entanglement prong with the effect prong, it does not mean that considerations of excessive entanglement have been entirely deleted from Establishment Clause analy- sis; in Agostini, the Court analyzed the factors regarding entanglement at length. See id. at 2015-16. Rather,  the statement  appears  to  mean  that  entanglement,  standing alone,  will  not  render  an  action  unconstitutional  if  the action does not have the overall effect of advancing, en- dorsing, or disapproving of religion. See id.

Since   entanglement   analysis   is   still   part   of   the Establishment  Clause  inquiry,  the  mere  fact  that  the prongs  have  been  merged  is  insufficient  to  undermine the  prior  panel's  decision  regarding  the  original   **12  Jersey City display. The City and amicus curiae Chabad of  Pittsburgh  point  out,  however,  that  the  prior  panel's entanglement  analysis  relied  on  two  rationales  that  the Supreme Court rejected in Agostini. First, the prior panel stated that the City's display policy would foster exces- sive  interactions  between  municipal  officials  and  local religious leaders in implementing the policy. n4 104 F.3d at 1449-50. Second, the prior panel reasoned that   *98  the City's displays would "produce political divisiveness." Id. at 1450. The Agostini Court addressed these same two

168 F.3d 92, *98; 1999 U.S. App. LEXIS 2541, **12

Page 5

factors in considering the constitutionality of New York City's "Title I" program,  n5 under which public school teachers are sent into parochial schools to provide reme- dial education to disadvantaged children, and the Court held that these two factors "are insufficient by themselves to create an 'excessive' entanglement" under its "current understanding of the Establishment Clause." 117 S. Ct. at

2015.

n4  The  panel  asked:   "Should  a  rabbi  and  a priest be consulted when erecting the menorah and the  creche?   Should  a  ceremony  accompany  the erection  of  these  religious  symbols?   Should  the city employ a Muslim cleric during the Ramadan Observance  month  to  avoid  offending  a  theolog- ical  protocol  of  Islam?"  104  F.3d  at  1449  (foot- note omitted). Compare Greater Pittsburgh ACLU v.  Allegheny  County,  842  F.2d  655,  662  (3d  Cir.

1988) ("mere placement and storage of religious display  will involve little entanglement"), aff'd in part and rev'd in part, 492 U.S. 573 (1989).

**13

n5  Title  I  of  the  Elementary  and  Secondary Education Act of 1965, 79 Stat. 27 (1965), as mod- ified, 20 U.S.C. § 6301 et seq. (1994).

While we are inclined to agree with the City and am- icus  curiae  Chabad  of  Pittsburgh  that  the  prior  panel's entanglement analysis is no longer valid in the wake of Agostini, it does not follow that Rule 60(b)(5) relief was required. Before discussing entanglement at all, the prior panel concluded that Jersey City's original display vio- lated the Establishment Clause because it "communicated

an  endorsement of Christianity and Judaism . . . ." 104

F.3d at 1446. If this conclusion is accepted, the original display  is  unconstitutional  irrespective  of  the  presence or absence of excessive entanglement. Accordingly, we agree with the District Court that Rule 60(b)(5) relief was not required.

III.

We therefore turn to the question of the modified dis- play. As noted, the District Court, after initially upholding this display, reached the opposite conclusion on remand. Not unreasonably,  the District Court interpreted certain statements in the prior panel opinion **14   to mean that the panel viewed the modified display as constitutionally dubious. We conclude,  however,  that the statements on which  the  District  Court  relied  were  merely  dicta,  that the  prior  panel  did  not  render  a  decision  regarding  the constitutionality of the modified display, and that we are

therefore obligated to analyze that question in accordance with our own best independent judgment. n6

n6  Our  court  strives  to  maintain  a  consistent body of circuit jurisprudence. Thus, "it is the tra- dition of this court that the holding of a panel in a reported opinion is binding on subsequent panels" and that "no subsequent panel overrules the holding in a published opinion of a previous panel." Internal Operating Procedure 9.1 (emphasis added). Dicta in  prior  opinions,  however,  are  not  treated  sim- ilarly.  On  the  contrary,  we  have  repeatedly  held that  dicta  are  not  binding.  See,  e.g.,  McGurl  v. Trucking  Employees,  124  F.3d  471,  484  (3d  Cir.

1997);  United  States  v.  Bennett,  100  F.3d  1105,

1110 (3d Cir. 1996); Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1071 (3d Cir. 1990). Our tra- dition of treating prior panel decisions as binding is closely tied to the rules and procedures regarding rehearing en banc. Rehearing en banc provides the opportunity for the full court to correct a panel de- cision to which the court is unwilling to be bound. But the standards for rehearing en banc look to the panel's decision, not to the panel's dicta. See Fed. R. App. P. 35 (emphasis added) (rehearing in banc may be ordered by a court of appeals "to secure or maintain uniformity of its decisions . . . ."). LAR

35.1 (emphasis added) (if rehearing is sought based on an asserted conflict with prior circuit precedent, counsel must certify, "based on a reasoned and stud- ied  professional  judgment,  the  panel  decision  is contrary to decisions of the United States court of Appeals for the Third Circuit . . . and that consid- eration by the full court is necessary to secure and maintain  uniformity  of  decisions  in  this  court."). Thus,  panel  dicta  are  generally  not  tested  by  the availability of en banc review, and they are accord- ingly not entitled to the same binding authority that our court has traditionally given to panel decisions.

**15

As previously noted, when the modified display was first challenged in the District Court, that Court was re- quired to rule on an expedited basis, and the Court was therefore unable to provide a lengthy, detailed explanation of its conclusion that the display satisfied Establishment Clause standards. Instead, the District Court summarily stated  that  by  adding  additional  objects  to  the  original display, the City had, in the Court's view, "sufficiently de- mystified the holy , . . . sufficiently desanctified sacred symbols, and . . . sufficiently deconsecrated the sacred." As both sides recognized in the prior appeal and as the panel  held,  see  104  F.3d  at  1451  &  n.18,  this  analysis

168 F.3d 92, *98; 1999 U.S. App. LEXIS 2541, **15

Page 6

did  not  comport  with  Lynch  or  Allegheny  County  and finds no support in Establishment Clause jurisprudence.

HN3  Demystification, desanctification, and deconsecra- tion suggest a process of profanation, something that the

*99    Establishment Clause neither demands nor toler- ates. See, e.g., Lemon, 403 U.S. at 612 (government con- duct violates Establishment Clause if its primary effect is to advance or inhibit religion).

Emphasizing the insufficiency of the District Court's

"demystification" analysis,   **16   the prior panel "con- cluded  that  the  district  court  erred  in  determining  that the constitutionality of the modified display depended on whether  the  presence  of  Frosty  and  Santa  'demystified' the creche and the menorah." 104 F.3d at 1451. The panel therefore vacated the District Court's modified injunction order  and  remanded  the  case  "so  that  the  district  court

could  consider, consistent with the standards set forth in its  opinion, whether the modified display was con- stitutional." Id. at 1452. Since no facts were in dispute, the  prior  panel  itself  certainly  could  have  ruled  on  the constitutionality of the modified display. Moreover, since the relevant facts are relatively simple and were set out in full detail in the panel's opinion, see id. at 1437-38, the prior panel was in just as good a position as the District Court  to  decide  that  question  in  the  first  instance.  Yet the prior panel chose not to take that course, instead re- manding for the District Court to make that decision. In light  of  this  remand,  it  is  apparent  that  the  prior  panel did  not  foreclose  us  from  ruling  on  the  constitutional- ity of the modified display in accordance with our own best independent judgment.   **17    We entirely agree with Judge McKee's summary of the majority holding. In concurrence, Judge McKee wrote:

I think my colleagues' analysis of Lynch and Allegheny establishes that the first display is inconsistent with the prohibitions of Lemon and properly remands to determine the legal- ity of the second display.

104 F.3d at 1453 (emphasis added).

We thus reject the plaintiffs' suggestion that the prior panel  "formally  remanded  the  issue  of  the  Modified Display  to  the  district  court"  but  "in  effect  already  an- swered the question it ostensibly remanded." Appellees' Br. at 6, 8 (emphasis added). There is no such thing as an ostensible remand, and that is not what the prior panel purported  to  do.  The  prior  panel  in  fact  remanded  the question of the constitutionality of the modified display, thus leaving the question open and requiring us to decide that question for ourselves.

For these reasons,  the dissent's chastisements about

"evading the reasoning of the  prior panel" (Dissent at

42) are mistaken. We have scrupulously followed what is

"binding" upon us:  the prior panel's "holding" (see IOP

9.1),  i.e.,  that the original  display  was unconstitutional

**18     and  the  District  Court,  in  judging  the  second display,  employed incorrect  standards.  As  for  the  prior panel's comments about the modified display, the dissent itself acknowledges that these were expressed "in dictum"

(Dissent at 42), but the dissent would apparently have us follow these non-binding statements rather than Supreme Court precedent, viz., Lynch and Allegheny County. This we cannot do.

IV.

The Supreme Court has handed down two decisions concerning the constitutionality of municipal holiday dis- plays, and therefore it is to these decisions that we must primarily  look  for  guidance  in  evaluating  Jersey  City's modified display.

A. In Lynch v. Donnelly, 465 U.S. 668, 79 L. Ed. 2d

604, 104 S. Ct. 1355 (1984), the Court upheld the con- stitutionality of a holiday display erected by the City of Pawtucket, Rhode Island. "Situated in a park owned by a nonprofit organization and located in the heart of the shopping district," the display was characterized by the Court as "essentially like those to be found in hundreds of  towns  or  cities  across  the  Nation --  often  on  public grounds -- during the Christmas season." Id. at 671. The display consisted of "many of the figures **19   and dec- orations traditionally associated with Christmas, includ- ing,  among other things,  a Santa Claus house,  reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree,  carolers,  cutout  figures  representing  such  charac- ters as a clown, an elephant, and a teddy bear, hundreds of colored lights,  a large banner that reads 'SEASONS GREETINGS,' and a  creche." Id. All components of the display were owned by the City. Id.   *100    The City had purchased the creche some years earlier for $1365, and the City incurred a small annual expense in erecting, lighting, and dismantling the creche. Id.

Writing for the Court, Chief Justice Burger analyzed the inclusion of the creche in the Pawtucket display under the Lemon test and thus inquired whether the inclusion of the creche had a secular purpose, whether its principal or  primary  purpose  was  to  advance  or  inhibit  religion, and whether it created an excessive entanglement of gov- ernment with religion. See 465 U.S. at 679. The Court held  that  the  Pawtucket  display  had  a  secular  purpose, explaining:

The  city  .  .  .  has  principally  taken  note  of

168 F.3d 92, *100; 1999 U.S. App. LEXIS 2541, **19

Page 7

a  significant  historical  religious  event  long celebrated in the Western **20   World. The creche  in  the  display  depicts  the  historical origins  of  the  traditional  event  long  recog- nized as a National Holiday . . . . The dis- play  is  sponsored  by  the  City  to  celebrate the Holiday and to depict the origins of that Holiday.  These  are  legitimate  secular  pur- poses.

Id. at 680-81 (footnote omitted).

The  Court  likewise  held  that  the  inclusion  of  the creche  did  not  have  the  principal  or  primary  effect  of advancing religion. 465 U.S. at 681-83. Noting that prior Establishment  Clause  cases  had  upheld  various  forms of aid to students attending church-related schools and colleges,  tax  exemptions  for  church  property,  Sunday Closing  laws,  "release  time"  programs,  and  legislative prayers, the Court was "unable to discern a greater aid to religion deriving from inclusion of the creche than from these benefits and endorsements previously held not viola- tive of the Establishment Clause." Id. at 682. The Court concluded  that  if  the  inclusion  of  the  creche  provided some "benefit to one faith or religion or to all religions," the  effect  was  "indirect,  remote  and  incidental."  Id.  at

683.

Finally, the Court held that there was no impermissi- ble entanglement. 465 U.S.   **21   at 683-85. The Court saw no "administrative entanglement" and observed that there was "no evidence of contact with church authorities concerning the content or design of the exhibit." Id. at

684. The Court also noted that the cost of including the creche was small. Nor did the Court see a basis for finding an excessive entanglement due to political divisiveness. Id. at 684-85. The Court rejected the idea that political divisiveness  alone  could  "serve  to  invalidate  otherwise permissible conduct." Id. at 684. Observing that the in- clusion of the creche had produced no marked dissension prior  to  the  lawsuit  then  before  it,  the  Court  pointedly wrote that " HN4  a  litigant cannot, by the very act of commencing a lawsuit . . . create the appearance of divi- siveness and then exploit it as evidence of entanglement." Id. at 684-85. n7

n7 See ACLU of N.J v. Black Horse Pike Reg'l

Bd. of Educ., 84 F.3d 1471,  1486 (3d Cir. 1996)

(general summary of Lynch).

Justice O'Connor, who joined the opinion of **22  the Court and cast the critical fifth vote in favor of the con- stitutionality of the Pawtucket display, wrote a concurring opinion "to suggest a clarification of . . . Establishment

Clause  doctrine."  465  U.S.  at  687  (O'Connor,  J.,  con- curring). She pointed out, however, that she viewed the Court's opinion as "consistent with" her analysis. Id.

Justice  O'Connor  wrote  that  government  "can  run afoul  of   the  Establishment  Clause   in  two  principal ways":   by  means  of  an  "excessive  entanglement  with religious institutions" and by "government endorsement or  disapproval  of  religion."  465  U.S.  at  687-88.  In  the Pawtucket case, Justice O'Connor found "no institutional entanglement," and she stated that "political divisiveness along religious lines should not be an independent test of constitutionality." Id. at 689. "The central issue in the  case," she stated, was "whether Pawtucket had endorsed Christianity by its display of the creche." Id. at 690. "To answer  that  question,"  she  continued,  it  was  necessary to  "examine  both  what  Pawtucket  intended  to  commu- nicate  in  displaying  the  creche  and  what  message  the

*101    city's display actually conveyed." Id. She found that  "Pawtucket  did   **23    not  intend  to  convey  any message of endorsement of Christianity or disapproval of non-Christian religions." Id. at 691. She explained:

The evident purpose of including the creche in  the  larger  display  was  not  promotion  of the religious content of the creche but cele- bration of the public holiday through its tra- ditional symbols. Celebration of public hol- idays, which have cultural significance even if they also have religious aspects, is a legit- imate secular purpose.

Id.

Justice O'Connor also concluded that Pawtucket's dis- play of the creche did not "communicate a message that the government intended to endorse the Christian beliefs represented by the creche." Id. at 692. She wrote:

Although the religious and indeed sectarian significance of the creche . . . is not neutral- ized by the setting, the overall holiday setting changes what viewers may fairly understand to be the purpose of the display -- as a typi- cal 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 hol- iday, and no one contends that declaration of that holiday is understood **24    to be an endorsement of religion. The holiday itself has very strong secular components and tra- ditions. Government celebration of the holi- day, which is extremely common, generally

168 F.3d 92, *101; 1999 U.S. App. LEXIS 2541, **24

Page 8

Id.

is  not  understood  to  endorse  the  religious content  of  the  holiday,  just  as  government celebration of Thanksgiving is not so under- stood. The creche is a traditional symbol of the holiday that is very commonly displayed along with purely secular symbols, as it was in Pawtucket.

Four        Justices  --              Justices  Brennan,                 Marshall,

the overall Lynch display." Id. at 599. He concluded: In sum, Lynch teaches that government may celebrate  Christmas  in  some  manner  and form, but not in a way that endorses Christian doctrine. Here, Allegheny County has trans- gressed this line. It has chosen to celebrate Christmas in a way that has the effect of en- dorsing a patently Christian message: Glory

to God for the birth of Jesus Christ. Under

Blackmun, and Stevens -- dissented, concluding that the

Pawtucket display  did  not  have  a  secular  purpose,  465

U.S.  at  698-701  (Brennan,  J.,  dissenting),  had  the  pri- mary effect of placing "the government's imprimatur of approval on the particular religious beliefs exemplified by the creche," id. at 701, and "posed a significant threat of fostering 'excessive entanglement.'" Id. at 702.

B.  The  Supreme  Court's  second  decision  concern- ing holiday displays came five years later in County of Allegheny  v.  Greater  Pittsburgh  ACLU,  492  U.S.  573,

106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989), aff'g in part and rev'g in part, Greater Pittsburgh ACLU v. Allegheny County,  842   **25     F.2d  655  (3d  Cir.  1988).  At  is- sue were two displays on public property in downtown Pittsburgh. The first was situated on the Grand Staircase of the Allegheny County Courthouse, a spot described as the "most public" and "most beautiful" part of that build- ing.  492 U.S. at 579. This display consisted of a creche, a banner proclaiming "Gloria in Excelsis Deo!" ("Glory to God in the highest!"), some poinsettias, a "small" dec- orated  evergreen,  and  a  plaque  stating  that  the  display had been donated by the Holy Name Society, a Roman Catholic group.  Id. at 580. "No figures of Santa Claus or other decorations appeared on the Grand Staircase." Id. at 580-81. (A picture of this display appears at 492 U.S. at 622, Appendix A.)

Five   Justices  --   the   four   Lynch   dissenters   plus Justice  O'Connor --  held  that  this  display  violated  the Establishment  Clause.  Writing  for  the  Court  with  re- spect  to  this  issue,  see  492  U.S.  at  588-92,  Justice Blackmun took pains to distinguish the Allegheny County Courthouse  display  from  the  display  upheld  in  Lynch.

"Unlike in Lynch," he wrote, "nothing in the context of the display detracts from the creche's religious message." Id. at 598. He **26   noted that the creche stood "alone" as

"the single element of the display on the Grand Staircase" and that "the presence of Santas or other Christmas deco- rations elsewhere" in the courthouse "failed to negate the endorsement effect of the creche." Id. at 598-99 & n. 48. Justice Blackmun rejected the suggestion that the "floral decoration surrounding the creche" could "be viewed as somehow equivalent to   *102    the secular symbols in

Lynch,  and  the  rest  of  our  cases,  nothing more is required to demonstrate a violation of the Establishment Clause. The display of the creche in this context, therefore, must be permanently enjoined.

Id. at 601-02.

In a separate concurrence, Justice O'Connor similarly distinguished Lynch, stating that "in contrast to the creche

**27   in Lynch, which was displayed in a private park in the city's commercial district as part of a broader dis- play of traditional secular symbols of the holiday season, this creche stood alone in the county courthouse" and had the  "unconstitutional  effect  of  conveying  a  government endorsement of Christianity." 492 U.S. at 627 (O'Connor, J., concurring). Three of the Lynch dissenters -- Brennan, Marshall and Stevens -- were of the view that the display of religious symbols on government property necessar- ily sends a message favoring religion. 492 U.S. at 637-46

(Brennan, J., concurring in part and dissenting in part); id. at 646-55 (Stevens, J., concurring in part and dissenting in part). In an opinion by Justice Kennedy, four Justices dissented and would have upheld the courthouse display.

492 U.S. at 655-79.

A splintered majority of the Court reached a differ- ent conclusion concerning the second display at issue in Allegheny County, which was located in front of the City- County Building. (A picture of this display appears at 492

U.S. at 622, Appendix B.) The City's portion of this build- ing houses its "principal offices, including the mayor's,"

492 U.S. at 581, and is thus **28   the functional equiv- alent of a city hall. This second display included three elements: a decorated 45-foot Christmas tree; an 18-foot menorah that was owned by Chabad, a Jewish group, but was stored, erected, and removed each year by the City; and a sign stating: "During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us  that  we  are  keepers  of  the  flame  of  liberty  and  our legacy of freedom." Id. at 582, 587.

Six Justices concluded that this display was constitu- tional, but they set out their views in three separate opin- ions. First, four Justices approved Justice Kennedy's opin-

168 F.3d 92, *102; 1999 U.S. App. LEXIS 2541, **28

Page 9

ion, which concluded that both Pittsburgh displays satis- fied the Establishment Clause. Justice Kennedy concluded that  these  displays  did  not  violate  the  Establishment Clause because they were noncoercive and did not give direct benefit to religion in such a degree that they es- tablished or tended to establish religion. 492 U.S. at 659,

663-667 (opinion of Kennedy, J.). He noted that it is in- disputable that government may participate in celebrating holidays with religious origins, and he added that requir- ing government to refrain from any use of religious sym- bols **29   in connection with these celebrations would convey a message of hostility to religion. He wrote:

HN5

If government is to participate in its citizens' celebration  of  a  holiday  that  contains  both a secular and religious component, enforced recognition of only the secular aspect would signify the callous indifference toward reli- gious faith that our cases and traditions do not require . . . .

Id. at 664.

Second, Justice Blackmun addressed the City-County Building display in Part VI of his opinion, which was not endorsed  by  any  other  member  of  the  Court.  492  U.S. at 613-21 (opinion of Blackmun, J.). Justice Blackmun concluded that this display represented a celebration by the city of "both Christmas and Chanukah as secular hol- idays." Id. at 615. He interpreted the display to mean that

"both Christmas and Chanukah are part of the same win- ter-holiday  season,  which  has  attained  a  secular  status in our society." Id. at 616. He noted that the tallest ob- ject in the display, the tree, is a secular   *103   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

**30    tree and the fact that, in his view, there was no comparable  secular  symbol  of  Chanukah  that  the  City could have used.  Id. at 616-18. He was fortified in this view by the mayor's sign, which saluted liberty and drew

"upon the theme of light . . . common to both Chanukah and Christmas as winter festivals . . . ." Id. at 619.

Third,   Justice  O'Connor  concluded  in  a  separate concurrence  that  the  "combined  holiday  display  of  a Chanukah menorah, a Christmas tree, and a sign saluting liberty did not have the effect of conveying an endorse- ment  of  religion."  Id.  at  632.  She  agreed  with  Justice Blackmun  that  the  Christmas  tree  is  a  secular  symbol, but  she  felt  that  Justice  Blackmun's  analysis  "obscured the  religious  nature  of  the  menorah  and  the  holiday  of Chanukah."  Id.  at  633.  She  viewed  "the  relevant  ques- tion for Establishment Clause purposes" as "whether the

city of Pittsburgh's display of the menorah, the religious symbol of a religious holiday,  next to a Christmas tree and a sign saluting liberty sent a message of government endorsement of Judaism or whether it sent a message of pluralism and freedom to choose one's own beliefs." Id. at

634. She opined that the latter,   **31   secular message was the one that the display conveyed:

By accompanying its display of a Christmas tree -- a secular symbol of the Christmas hol- iday season -- with a salute to liberty, and by adding a religious symbol from a Jewish hol- iday celebrated at roughly the same time of year,  . . . the city did not endorse Judaism or religion in general, but rather conveyed a message of pluralism and freedom of belief during the holiday season.

Id. at 635 (O'Connor, J., concurring).

Justice O'Connor rejected the suggestion that the dis- play conveyed "a message that endorses religion over non- religion," observing that " a  reasonable observer would

.  .  .  appreciate  that  the  combined  display   was   an  ef- fort 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 win- ter holiday season is celebrated in diverse ways by our citizens." n8 Id. at 635-36. n9

n8 See Black Horse Pike, 84 F.3d at 1486-87

(general summary of Allegheny County).

n9  The three  dissenters --  Brennan,  Marshall and Stevens --  held the same view of the scene in front of city Hall as they did of the creche on the great staircase.   492 U.S. at 637-46 (Brennan, J., concurring  in  part  and  dissenting  in  part);  id.  at

646-55 (Stevens, J., concurring in part and dissent- ing in part).

**32

Because  of  the  splintered  majority  in  Allegheny County with respect to the constitutionality of the display in front of the City-County Building,  we must employ the standard set out in Marks v. United States, 430 U.S.

188, 51 L. Ed. 2d 260, 97 S. Ct. 990 (1977), in order to identify the Court's holding. Specifically, we must exam- ine the positions taken by the Justices needed to form a majority and follow the opinion that supports the major- ity position on the narrowest grounds. See Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 58 (3d Cir. 1992); Planned

168 F.3d 92, *103; 1999 U.S. App. LEXIS 2541, **32

Page 10

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).

In the case of Allegheny County, Justice O'Connor's opinion sets out the position that we must follow. In or- der to be sustained,  a display would have to satisfy,  at a  minimum,  the  standards  set  out  in  Justice  Kennedy's opinion, which was approved by three other Justices, as well as the standards set out in Justice O'Connor's opin- ion. Although Justice Blackmun also voted to sustain the display at the City-County Building, his position seem- ingly imposes more formidable standards,   **33   and a display would not have to meet those standards in order to survive. Accordingly, in considering how the modified Jersey City display now before us fares under Allegheny County,  we  will  focus  on  Justice   *104    O'Connor's opinion.  Before  doing  that,  however,  we  will  first  test the modified Jersey City display against the teachings of Lynch.

V.

The  display  that  the  Supreme  Court  sustained  in Lynch resembles the modified Jersey City display in sev- eral  important  respects.  Both  included  one  or  more  re- ligious symbols owned by the city (in Lynch, a creche; in  Jersey  City,  a  creche  and  a  menorah),  as  well  as  a variety of secular ones. Both included one or more sec- ular  signs  or  banners  (in  Lynch,  a  banner  proclaiming

"SEASONS  GREETINGS";  in  Jersey  City,  two  signs that read:  "Through this display and others throughout the year, the City of Jersey City is pleased to celebrate the diverse cultural and ethnic heritages of its peoples."). Accordingly, Lynch appears to support the constitutional- ity of the modified Jersey City display unless some con- stitutionally significant distinction can be shown.

One potentially important difference is that the dis- play in Pawtucket was **34   located on private property in the center of the city's business district,  whereas the Jersey City display was situated in front of City Hall on public land. In Lynch, neither the opinion of the Court nor Justice O'Connor's concurrence seemed to attribute constitutional  significance  to  this  fact.  (The  opinion  of the Court noted the fact in passing at the beginning of the opinion, 465 U.S. at 671, and Justice O'Connor did not mention this fact at all.) However, Justice O'Connor's opinion in Allegheny seemed to place greater emphasis on this aspect of the Pawtucket display, 492 U.S. at 623, 626

(O'Connor, J., concurring), and therefore we will discuss this potentially significant distinction in connection with our discussion of Allegheny County.

With the possible exception of this factor, however, we see no reasonable basis for distinguishing the modi-

fied Jersey City display from the display upheld in Lynch. The plaintiffs and our dissenting colleague suggest that the cases can be distinguished on the ground that in the modified Jersey City display "Santa Claus and Frosty the Snowman clearly do not constitute separate focal points or centers of attention coequal with **35   the Menorah and the Nativity Scene," Appellees' Br. at 14, but we see no basis for this distinction. Appendices A and B to this opinion, which depict the modified displays on both sides of City Hall in Jersey City, speak for themselves. In the modified display on the right, the sleigh is just as much a focal point as the figures in the nativity scene. And in the modified display on the left, the tree is just as much a focal point as the menorah. n10

n10 The plaintiffs' reference to "separate focal points" was derived from Justice Blackmun's dis- cussion of the display of the creche on the Grand Staircase  of  the  county  courthouse  in  Allegheny County. Writing for the Court in this portion of his opinion, Justice Blackmun contrasted this display, in which the creche "stood alone" as "the single el- ement of the display on the Grand Staircase," with the Pawtucket display, in which each of the secular figures "had its own focal point." 492 U.S. at 598.

The dissent attempts to distinguish the modified Jersey City   **36    display  from  the  display  in  Lynch  on  the ground that "the Jersey City display had more and larger sectarian symbols combined with fewer secular symbols." Dissent at 35. What the record shows, however, is the fol- lowing. With respect to the size of the religious symbols in the two displays, the nativity-scene figures in the Jersey City display, which ranged from 12 inches to 27 inches in height, were not larger than those in the Lynch display, which ranged in height from five inches to five feet.  465

U.S. at 671. Nor were there more figures in the Jersey City nativity scene than in the Pawtucket scene,  which contained figures of "the Infant Jesus, Mary and Joseph, angels, shepherds, kings, and animals." 465 U.S. at 671. 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 sec- ular 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   *105    Christmas  tree,  in  front  of  the  City-County Building in Pittsburgh **37   was constitutional.

It is interesting that the plaintiffs deride some of the very distinctions that the dissent finds so significant. See Appellees' Br. at 15 (the court should not "engage in the fruitless exercise of determining, figuratively, 'how many

168 F.3d 92, *105; 1999 U.S. App. LEXIS 2541, **37

Page 11

candy canes offset one Jesus?' . . . . There is simply no common currency or rate of exchange by which religious and secular symbols can be traded and offset."). Instead, the plaintiffs stress the District Court's observation on re- mand that Jersey City's addition of the secular symbols was "a ploy designed to permit continued display of the religious symbols." The suggestion seems to be that, even if Jersey City could have properly erected the modified display in the first place, the City's initial display, which was held to violate the Establishment Clause, showed that the city officials were motivated by a desire to evade con- stitutional requirements and that this motivation required invalidation of the modified display. Asked during oral argument whether this meant that Jersey City might be precluded  from  erecting  a  display  identical  to  one  that would be permissible in other nearby cities, counsel for the plaintiffs insisted **38   that Jersey City's "prior his- tory" would have to be taken into account, at least until the time came when it could be considered to be "purged" of the "prior constitutional taint." Oral Arg. Tr. at 27.

We  reject  this  argument.  The  mere  fact  that  Jersey City's first display was held to violate the Establishment Clause is plainly insufficient to show that the second dis- play lacked "a secular legislative purpose," see Lemon,

403 U.S. at 612-13, or that it was "intended to convey a  message  of  endorsement  or  disapproval  of  religion." Lynch, 465 (O'Connor, J., concurring). As our prior dis- cussion  of  Lynch  and  Allegheny  County  illustrates,  the Supreme  Court's  decisions  regarding  holiday  displays have  been  marked  by  fine  line-drawing,  and  therefore it is not easy to determine whether particular displays sat- isfy the Court's standards. Under these circumstances, the mere fact that city officials miscalculate and approve a display that is found by the federal courts to cross over the  line  is  hardly  proof  of  the  officials'  bad  faith.  n11

Although the original Jersey City display was ultimately struck down, no Supreme Court or Third Circuit precedent clearly established that it **39  was unconstitutional un- til 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. n12

n11 If reaching the erroneous conclusion that a  particular  display  is  constitutional  is  regarded as  proof  of  an  intent  to  flout  the  Establishment Clause, are Allegheny County dissenters implicated by virtue of their views?

n12  The  plaintiffs'  position  is  also  contrary to the Supreme Court's treatment of the two dis- plays at issue in Allegheny County. If the plaintiffs'

view were correct, the erection of the unconstitu- tional display on the Grand Staircase of the County Courthouse should have militated in favor of also striking  down  the  display  in  front  of  the  City- County  Building,  but  a  majority  of  the  Supreme Court  sustained  that  display,  and  not  one  Justice took the position that the officials' miscalculation regarding the Grand Staircase tainted the decision concerning the City-County Building.

**40

We now consider how the modified Jersey City display fares under the holding of the Supreme Court in Allegheny County. The Court's decision striking down the display of the creche on the Grand Staircase of the Allegheny County Courthouse does not cast doubt on the constitutionality of the modified Jersey City display. As noted earlier, the display on the Grand Staircase consisted of a creche with a religious proclamation ("Gloria in Excelsis Deo") sur- rounded by a floral decoration that "served only to draw one's attention" to the creche. 492 U.S. at 598-99. The display contained no secular symbols, and the display did not communicate to a reasonable observer the sort of sec- ular message that is needed to pass Establishment Clause scrutiny, e.g., acknowledgment of "the cultural diversity of  our  country"  and  support  for  "tolerance  of  different choices in matters of religious belief or nonbelief by rec- ognizing that the winter holiday season is celebrated in diverse ways by our citizens." Allegheny County, 492 U.S. at 636 (O'Connor, J., concurring).   *106   The modified Jersey  City  display  expressly  conveyed  this  very  mes- sage  by  means  of  its  sign  and  implicitly  conveyed  the same message **41    through its diverse nonverbal el- ements. Thus, the unconstitutional display on the Grand Staircase of the Allegheny County Courthouse is readily distinguishable from the modified Jersey City display.

On the other hand, there are instructive parallels be- tween  the  constitutionally  permissible  display  in  front of  the  City-County  Building  and  the  modified  Jersey City display. (Indeed, the photograph of the City-County Building  display,  see  492  U.S.  at  622,  and  the  display on the left-side of Jersey City's City Hall (see Appendix A of this opinion) are virtually identical except for the presence of Santa in the latter display). First,  both dis- plays contained both secular and religious symbolism. It is  true  that  the  City-County  Building  display  included fewer religious symbols (a menorah only) than the mod- ified Jersey City display (both a menorah on the left side of  City  Hall  and  a  creche  on  the  right),  but  the  City- County Building display also included fewer secular sym- bols, and in both cases the balance seems to have been roughly the same. Moreover, Justice O'Connor's opinion in Allegheny County refutes any suggestion that the dis-

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Page 12

play  of  a  menorah  is  inherently  less  likely   **42    to create Establishment Clause problems than is the display of a creche. Eschewing the suggestion that Chanukah is

"a 'secular' holiday" or that "the menorah has a 'secular dimension,'" she pointedly wrote that "the menorah is the central religious symbol and ritual object of a  religious holiday." 492 U.S. at 633-34. She similarly rejected the idea that, because "it would be implausible for the city to endorse a faith adhered to by a minority of the citizenry," inclusion of a menorah in a holiday display is less likely than a Christian religious  symbol to convey a message of government endorsement of religion. Id. at 634. She wrote that " a  menorah standing alone at city hall may well send such a message to nonadherents, just as in this case the creche standing alone at the Allegheny County Courthouse  sends  a  message  of  governmental  endorse- ment of Christianity . . . ." Id.

Second,  the  strong  similarity  between  the  location of the City-County Building display (on public land in front  of  what  is  in  essence  Pittsburgh's  City  Hall)  and the  location  of  the  Jersey  City  display  (on  public  land in  front  of  City  Hall)  is  particularly  important  in  light of our earlier conclusion **43    that the only basis on which the Pawtucket display upheld in Lynch might po- tentially be distinguished from the modified Jersey City display was that the former display was located on private land in the city's business district. The portion of Justice O'Connor's separate opinion in Allegheny County relating to the display on the Grand Staircase suggested that this distinction had some significance. n13 But when Justice O'Connor turned to the display in front of the City-County Building --  a location indistinguishable for present pur- poses from the site of the Jersey City display -- she held that the display was constitutional. (The other factors that Justice O'Connor stressed in this portion of her Allegheny County opinion -- the tree and the sign -- also have close parallels here). This persuades us that the location of the Jersey  City  display  on  public  property  in  front  of  City Hall does not in itself provide a valid basis for holding the display to be unconstitutional.

n13 Justice O'Connor noted that the creche in Lynch had been "displayed in a private park in the city's commercial district," and she opined that "the display of religious symbols in public areas of core government buildings runs a special risk of 'making religion relevant, in reality or public perception, to status in the political community.'" 492 U.S. at 626

(O'Connor, J., concurring (quoting Lynch, 465 U.S. at 692 (O'Connor, J., concurring)).

**44

Moreover, although this factor is not necessary to our

decision,  we are convinced that,  in evaluating the mes- sage conveyed by the modified Jersey City display to a reasonable  observer,  the  general  scope  of  Jersey  City's practice regarding diverse cultural displays and celebra- tions  should  be  considered.  In  our  en  banc  decision  in ACLU of N.J. v. Black Horse Pike Reg'l Bd. of Ed., 84 F.3d

1471 (3d Cir. 1996), we held that, HN6  in determining whether  a  government  practice  endorses  religion,  "'the

"history and ubiquity"   *107    of a practice is relevant because  it  provides  part  of  the  context  in  which  a  rea- sonable observer evaluates whether a challenged govern- mental practice conveys a message of endorsement of reli- gion.'" Id. at 1486 (quoting Allegheny County, 492 U.S. at

630 (O'Connor, J., concurring)); see also Capitol Square

Review and Advisory Bd. v. Pinette, 515 U.S. 753,  115

S. Ct. 2440, 2455, 132 L. Ed. 2d 650 (1995) (O'Connor, J., concurring) ("the reasonable observer in the endorse- ment inquiry must be deemed aware of the history and context of the community and forum in which the reli- gious display appears"; "the knowledge attributed to the reasonable observer cannot     **45    be limited to the information gleaned simply from viewing the challenged display"). To the extent that the prior panel opinion, see

104 F.3d at 1448-49, conflicted with our prior en banc decision in Black Horse Pike, the prior en bane decision must of course take precedence.

In sum, we are unable to perceive any meaningful con- stitutional distinction between the display at issue here and those that the Supreme Court upheld in Lynch and Allegheny County. Reasonably viewed, none of these dis- plays  conveyed  a  message  of  government  endorsement of  Christianity,  Judaism,  or  of  religion  in  general  but instead  "sent  a  message  of  pluralism  and  freedom  to choose  one's  own  beliefs."  Allegheny  County,  492  U.S. at 633 (O'Connor, J., concurring). If we follow Lynch and Allegheny County, we have no alternative but to reverse the permanent injunction insofar as it enjoins Jersey City from erecting the modified display "or any substantially similar  scene  or  display  in  the  vicinity  of  the  entrance to  the  City  of  Jersey  City's  City  Hall."  Indeed,  even  if we were persuaded that the modified display itself was unconstitutional,  we  could  not  possibly  approve  an  in- junction against **46   "any substantially similar scene or display." Both the Pawtucket display and the display in front of the City-County Building in Pittsburgh were, at the least, "substantially similar" to the modified Jersey City  display,  and  consequently  the  District  Court's  in- junction has the obviously improper effect of enjoining displays  that  are  identical  to  ones  that  have  passed  the Supreme Court's scrutiny.

The  dissent's  attempt  to  distinguish  the  modified Jersey City display from the display upheld in Allegheny Court is unpersuasive. The dissent first observes that in

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Page 13

Allegheny County the 45' tall Christmas tree "dwarfed the

18'  tall  menorah."  Dissent  at  36.  The  reader  can  com- pare the photograph of the display sustained in Allegheny County (see 492 U.S. at 622) with Appendix A to this opinion (the left side of the Jersey City display) and make an independent judgment as to whether the two scenes are constitutionally distinguishable. In our view, they are not. The two menorahs are comparable in height (18' tall in Allegheny, 19' tall in Jersey City), and although the tree in Pittsburgh appears larger than that in Jersey City, it is difficult to believe that this difference in height **47   is dispositive.

The  dissent  next  observes  that  "a  display's  location informs the constitutional analysis" (Dissent at 36), but the  dissent  obscures  the  fact  that  the  display  upheld  in Allegheny  County  and  the  Jersey  City  display  were  lo- cated in comparable spots:  on public land in front of the building that housed the principal offices of the municipal government.

The dissent notes that "Jersey City used public funds to own, erect, and maintain the creche and the menorah." Dissent at 37. But in Allegheny County, the menorah was also "stored, erected, and removed each year by the city."

492 U.S. at 587 (opinion of Blackmun, J.). And in Lynch,

the city owned, erected, and dismantled the creche. 465

U.S. at 671.

Finally,  the  dissent  argues  that,  whereas  "a  display containing  only  a  menorah  and  a  Christmas  tree"  may be constitutional, "when a creche and a menorah are dis- played together,  'the menorah's religious significance is emphasized.'"  Dissent  at  37  (quoting  Schundler  I,  104

F.3d at 1446). This statement overlooks the fact that the creche and menorah were displayed on opposite sides of the City Hall Plaza Park. See Appendix C. More impor- tant, since Lynch **48  teaches that display of a creche is not per se unconstitutional, and Allegheny County teaches that the same is true of a menorah, it is hard to   *108  accept the proposition that the Establishment Clause is vi- olated when these two symbols are displayed together as part of a holiday display that includes secular symbols and is dedicated to the celebration of a municipality's cultural diversity.

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 dis- agreement 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. The prior panel observed:

Government  display  of  a  creche   unlike  a menorah  cannot convey a meaning separate from the very act it is meant to portray. A creche depicts the Birth of Christ, the event that lies at the foundation of Christianity. In Allegheny County, the Court determined that displays  containing  a  creche  as  a  primary focal  point,  which  are  situated  at  the  seat of government, are **49    constitutionally impermissible as they convey a message of government endorsement. This is consistent with Lynch, in which the Court permitted a creche that was part of a display in a private park depicting a "winter wonderland" scene because,  in context,  there were no external indicia of government endorsement.

104 F.3d at 1451.

We  respectfully  submit,  in  part  for  reasons  that  we have already discussed, that this dicta misinterprets both Lynch and Allegheny County. First, the distinction that is drawn between a creche and a menorah necessarily rests on the mistaken view that these two symbols differ criti- cally with respect to the nature or degree of the religious message that they convey. As we have explained,  how- ever, Justice O'Connor flatly rejected this suggestion in her  pivotal  Allegheny  County  opinion.  See  492  U.S.  at

633-34 (opinion of O'Connor, J.). Once it is recognized that a creche and a menorah should be regarded as equiv- alent religious symbols for the purpose of analyzing hol- iday displays, the similarity between the constitutionally permissible display in front of the City-County Building in Pittsburgh and the modified display in front of Jersey

**50   City's City Hall becomes apparent.

Second, we cannot agree with the prior panel's sug- gestion that in Lynch "the Court permitted a creche that was part of a display in a private park depicting a 'winter wonderland' scene because, in context, there were no ex- ternal indicia of government endorsement." 104 F.3d at

1451 (emphasis added). 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 endorse- ment" 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. The Justices differed in their interpretation of the message that the display conveyed,  but they all un-

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Page 14

derstood that the message was linked to the City -- as the lower court opinions in that case made abundantly clear:

It  is  difficult  to  suggest  that  anyone  could have  failed   **51            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. See Donnelly v. Lynch, 525 F. Supp. 1150, 1156

(RI 1981). Indeed, the District Court in Lynch found that 'people might reasonably mistake the Park for public property,' and rejected as

'frivolous' the suggestion that the display was not directly associated with the city.  Id., at

1176, and n. 35.

Allegheny  County,  492  U.S.  at  666-67  (opinion  of Kennedy, J.). Once these two points are recognized -- that the menorah and the creche must be viewed for present purposes as equivalent religious symbols and that the dis- play  in  Lynch  indisputably  involved  the  conveyance  of a government   *109   message --  the foundation of the prior panel's dicta is undermined.

VII.

For  these  reasons,  we  affirm  the  decision  of  the District Court insofar as it denied the defendants' motion under Rule 60(b)(5) for relief from the Court's previous judgment. However, we reverse the District Court's order insofar  as  it  disposed  of  the  parties'  cross-motions  for

**52   summary judgment with respect to the modified display  and  insofar  as  it  enjoined  the  defendants  from erecting that or any substantially similar display. We re- mand the case to the District Court with instructions to grant summary judgment in favor of the defendants.

DISSENTBY:

NYGAARD

DISSENT: NYGAARD, Circuit Judge. Dissenting.

I  have  two  reasons  for  dissenting.  First,  I  dissent because  I  believe  that  the  argument  urged  upon  us  by appellant  undermines  our  earlier  decision  in  this  case. Following Schundler I, addressing the original display, I still conclude that the addition of a few small token secu- lar objects is not enough to constitutionally legitimate the modified display. Although appellant strives mightily to explain what we did not hold in Schundler I, I believe it more important to determine what we did hold. We ex- plicitly held that the display at issue here, minus Frosty,

Santa,  the  sleigh,  and  the  Kwanzaa  symbols,  was  un- constitutional because it had the effect of communicating an endorsement of particular religions. So, I submit that the real question now is whether simply adding Kwanzaa symbols to the tree and placing Frosty (a secular symbol of Christmas), Santa **53   (a once-religious symbol -- St. Nicholas -- now quite secularized), and a sleigh in the display  sufficiently  changed  the  display's  context  so  as to negate the message that was conveyed by the original display, which we held unconstitutional.

The second, albeit weaker, reason why I dissent is that although the majority cites the applicable Supreme Court case law to reach its conclusion that this display is con- stitutional, parsing the same law and applying it to these facts leads me to the opposite conclusion. There is, I read- ily acknowledge, much confusion and plenty of room for jurisprudential disagreement in this area. No bright lines of demarcation have been drawn between religious "es- tablishment" 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 majori- ties 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.

The Supreme Court's two major recent excursions into this area have resulted **54   in fractured majorities and no clear statement of the law. Nonetheless,  it seems to me  that  the  Court  has  directed  us  to  evaluate  religious symbols in the context of the entire display. As we noted in Schundler I, "the Supreme Court, in its myriad of ap- proaches in the display cases, has repeatedly emphasized the importance of examining the context of the display at issue to determine whether it has the effect of endors- ing  religion."  Schundler  I,  104  F.3d  1435  at  1451.  We reaffirmed the significance of context when we examined Allegheny County and Lynch "to illustrate 'the importance of  the  context  of  a  challenged  practice'  in  conducting an Establishment Clause analysis." Id. (quoting ACLU v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1484

(3d Cir. 1996) (en banc)). Following the Supreme Court's decisions in Lynch and Allegheny County, I conclude that Jersey City's modified display resulted in an unconstitu- tional 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 **55   the modified Jersey City display from the display upheld in Lynch." Majority Opinion at 21. I believe that this analysis of the display

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Page 15

fails to adequately credit the different contexts of the two displays.  When  looked  at  in  its  context,  I  believe  that the constitutional display in Lynch is distinguishable. The display approved by   *110   the Court in Lynch included, in addition to a creche (the only religious symbol),

a  Santa  Claus  house  with  a  live  Santa  dis- tributing   candy;   reindeer   pulling   Santa's sleigh; a live 40-foot Christmas tree strung with   lights;   statues   of   carolers   in   old- fashioned dress; candy-striped poles; a "talk- ing" wishing well; a large banner proclaim- ing  "SEASONS  GREETINGS";   a  minia- ture  "village"  with  several  houses  and  a church;  and  various  "cut-out"  figures,  in- cluding those of a clown, a dancing elephant, a robot, and a teddy bear.

Allegheny County, 492 U.S. 573 at 596, 109 S. Ct. 3086 at

3102 (opinion of Blackmun, J.). The Court in Allegheny County noted that the Lynch display was composed of a series of figures and objects, each group of which had its own focal point. See 492 U.S. at 598, 109 S. Ct. at 3104

(opinion of the Court). The various **56   objects each had a separate "visual story to tell." Id., 109 S. Ct. at 3104. Contrasting  the  Lynch  display,  with  its  "superabun- dance of secular symbols which  diluted the message of the creche," Amancio v. Town of Somerset, 28 F. Supp.

2d 677, 1998 WL 846865, *3 (D. Mass. 1998) (finding display consisting of a creche, holiday lights, a wreath, a Christmas tree,  and a plastic Santa Claus unconstitu- tional),  with  the  Jersey  City  display  reveals  a  different context. Here,  rather than a "superabundance" of secu- lar objects, only a handful of nonsectarian objects were placed  in  the  display,  none  of  which,  other  than  the Christmas tree,  could have reasonably been considered a  separate  focal  point.  I  would  not  underestimate  the essential  importance  to  the  Supreme  Court  majority  of the numerous secular objects surrounding the creche in Lynch. As the Second Circuit Court of Appeals noted,

After  Allegheny  and  Lynch,  therefore,  not every  city-owned-and/or--displayed  creche violates  the  Establishment  Clause.  Lynch squarely upheld a city's erection of a creche that it owned as part of its Christmas display in a park owned by a nonprofit organization.

**57   A key factor leading to that conclu- sion, especially in light of the later Allegheny decision, was that the creche was only a small part of an otherwise secular display.

Elewski  v.  City  of  Syracuse,  123  F.3d  51,  54  (2d  Cir.

1997) (upholding a holiday display of a creche in light of the context) (emphasis added) (citations omitted), cert. denied, 523 U.S. 1004, 140 L. Ed. 2d 317, 118 S. Ct. 1186

(1998). Although I disagree with the Elewski opinion in light of Lynch, nonetheless even if we apply its reason- ing to the Jersey City display,  the creche and menorah were certainly not "small parts" of an otherwise secular display. The only reasonable interpretation, as we noted in Schundler I, is that Frosty and Santa composed a small secular part of an otherwise sectarian display, not the other way around.

Rather than the seasonal, "winter wonderland" scene in Lynch, Jersey City erected a display that a reasonable observer would interpret as having three symbolic focal points:  the creche, the menorah, and the Christmas tree. n1 The same three focal points that were found to result in an unconstitutional endorsement of religion by this Court in Schundler I. **58    n2 Indeed, the modified display

*111    perhaps provides a more substantial example of endorsement than the original display because the charac- ters of the creche were removed from their isolated, shel- tered position in the manger to a more prominent position beside it. See Schundler I, 104 F.3d at 1439. Compared to the display in Lynch, the Jersey City display had more and larger sectarian symbols combined with fewer secular symbols. This created a different context and resulted in a different message, one of government endorsement of religion.

n1 Appellant argues that because the tree was com- parable in size to the menorah, it created a separate focal point. This argument is irrelevant in light of our  holding  in  Schundler  I.  In  that  case,  we  ex- pressly  held  that  the  presence  of  the  Christmas tree  did  not  make  the  display  constitutional.  In Schundler  I,  we  determined  that  the  Christmas tree  had  a  secular  effect,  and  the  mere  addition of  Kwanzaa  ornaments  to  the  tree  certainly  does little to enhance the already secular effect.

In addition, applying a sort of Blackmun yard- stick test, appellant appears to argue that the 4' tall Santa  and  the  3'  10"  tall  Frosty  created  separate focal points that operated to neutralize the sectar- ian message conveyed by the 14' tall menorah and the  over  45'  square,  7'  tall  manger  with  a  sepa- rate  nativity  scene.  The  snowman  was  located  to the back left of the manger, approximately 35 feet away from the manger. See App. 48. Santa Claus, on  the  other  hand,  was  located  across  the  walk- way, situated between the 13' tall tree and the 14' tall menorah. These token figures simply did not

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Page 16

substantially detract from the unconstitutional sec- tarian  message  conveyed  by  the  original  display. See Schundler I, 104 F.3d at 1452.

**59

n2 We also placed a great deal of emphasis on the  location  of  the  display  on  the  front  steps  of City Hall in Schundler I. I will follow the major- ity's lead and discuss this aspect of the case when dealing with Allegheny County.

B. Allegheny County

Nor do I think that Allegheny County supports the con- clusion that the Jersey City display was constitutional. It can be argued that, when looking at the secular and sectar- ian elements, the balance seems to have been "roughly" the  same  in  the  Jersey  City  display  and  the  Allegheny County  display  located  on  the  front  steps  of  the  City- County  Building.  I  think  that  statement  underestimates the importance of the context of the display by eliding the difference in the size and location of the various ele- ments. In Allegheny County, the 45' tall Christmas tree was

"clearly the predominant element in the city's display" on the steps of the City-County Building.  Allegheny County,

492 U.S. 573 at 617, 109 S. Ct. 3086 at 3113 (opinion of  Blackmun,  J.).  The  tree  dwarfed  the  18'  tall  meno- rah,  which  was  placed  to  the  side  of  the  tree's   **60  central position beneath the middle archway in front of the building. See id. 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 in- forms  the  constitutional  analysis.  As  Justice  O'Connor stated in Allegheny County, "the display of religious sym- bols 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. Ct. at 3119 (O'Connor, J., con- curring) (alteration in original) (quoting Lynch, 465 U.S.

668 at 692, 104 S. Ct. 1355 at 1369 (O'Connor, J., con- curring)). When dealing with the original display in the exact same location in Schundler I, we stated,

When  a  government  chooses  to  speak  by erecting  a  creche  on  government  property, the principles at the core of the Establishment Clause are clearly implicated. By erecting the creche itself, on city property, a city sends a

stronger message of endorsement of religion than when it merely provides a forum for pri- vate religious speech.   **61   In the former context,  the government  is effectively con- veying  the  message  that  "we  celebrate  the holiday  season  by  recognizing  the  birth  of Christ."

Schundler I, 104 F.3d at 1445 (citation omitted). What is clear then is that when a display containing religious elements is located in front of the main city government building, we should recognize that the possibility of send- ing a message of religious endorsement to the reasonable observer is augmented. n3

n3  Justice  O'Connor  approved  the  display  in Allegheny County that was situated on the steps of a government building. Since she allowed that dis- play, it can be argued that the location of the Jersey City display does not in itself provide a valid ba- sis for holding the display to be unconstitutional. Although  I  agree  that  this  factor  alone  does  not justify finding a display to be unconstitutional,  it is certainly an aspect that should be taken into ac- count when determining the message conveyed by the display.

We must not overlook an important **62    basis of our  decision  in  Schundler  I:  In  finding  the  display  un- constitutional, we relied on the fact that Jersey City used public funds to own, erect, and maintain the creche and the menorah. Although not a deciding factor,  we noted that  "by  using  taxpayer  dollars  to  fund  a  display  con- taining religious symbols, Jersey City has increased the risk that the display's religious message will be attributed to the city and its taxpayers." Id. at 1445-46; see also Elewski, 123 F.3d at 57 (Cabranes, J., dissenting) (noting that government sponsorship is "a relevant and important factor"). The modified display here is subject to the same infirmity.

In Allegheny County, the Court allowed a display con- taining only a menorah and a Christmas tree. We, how- ever, have found that when a creche and a menorah are displayed   *112   together, "the menorah's religious sig- nificance is emphasized." Schundler I, 104 F.3d at 1446. In Allegheny County, Justice O'Connor found that, even though the religious message of the menorah was not en- tirely neutralized, any message of government endorse- ment  was  negated  by  the  presence  of  the  much  larger Christmas tree. See Allegheny County, 492 U.S.   **63  at 635, 109 S. Ct. at 3123 (O'Connor, J, concurring). In Jersey City,  however,  the religious aspect of the meno-

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Page 17

rah was underscored by the rest of the display. n4 In this case,  the  menorah  is  more  reasonably  viewed  in  light of the presence of the creche, not the tree. In Allegheny County, the menorah outside the City-County Building was privately owned and its religious message was not accentuated by the additional presence of a creche rep- resenting the stable wherein Jesus was born. These facts distinguish the Allegheny County display from this one.

n4  It  can  be  argued  that  Justice  O'Connor's opinion in Allegheny County seems to rebut Justice Blackmun's argument in the same case that a meno- rah  is  an  inherently  less  religious  symbol  than  a creche. 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, al- though the religious impact of a menorah standing alone  was  debatable,  at  least  by  the  members  of the Supreme court, we have found that the combi- nation of a menorah with a creche communicates a clearly sectarian message. See Schundler I, 104

F.3d at 1446.

**64

To support its argument that no sectarian message was delivered, appellant points to the two signs proclaiming that the display was part of a year-round celebration of diversity. The value of the signs should be considered in light of, and is wholly negated by, the fact that the orig- inal display we held unconstitutional contained the same sign. Furthermore, the sign clearly states that Jersey City is supporting the display, removing any doubt from the reasonable observer's mind concerning whether the dis- play was private speech or government speech. Although informative,  the mere presence of signs stating that the display was part of a celebration of ethnic and cultural differences does little to negate the impact of the sectar- ian message. n5

n5 As Justice Blackmun stated, "The simulta- neous endorsement of Christianity and Judaism is no less constitutionally infirm than the endorsement of Christianity alone." Allegheny County, 492 U.S. at 615, 109 S. Ct. at 3112 (opinion of Blackmun, J.)

Appellant **65   argues that Schundler I incorrectly determined that a reasonable observer would not be aware of  Jersey  City's  other  celebrations  throughout  the  year. Assuming arguendo that the earlier panel was incorrect, looking at the history of this display and others in Jersey

City does little to save the modified display from its mes- sage. I am not exactly sure what a reasonable observer would  think.  I  doubt,  however,  that  he  or  she  would question long why the creche and menorah were on the City Hall lawn before concluding that it was to celebrate Christmas and Hanukkah. I also think that the reasonable observer, looking at the modified display, would be aware of the various ethnic and cultural celebrations through- out the year. In addition, the reasonable observer would likely know that no other religious celebrations occurred in front of City Hall. The reasonable observer would see that the display is larger than any other display in front of City Hall. The reasonable observer would realize that the display was in place longer than any other display, secular or sectarian, that occupied the very visible space in front of City Hall. n6 Finally, the reasonable observer would likely  remember   **66     that  for  approximately  thirty years, Jersey City had erected a virtually identical display that we found endorsed religion in violation   *113    of the First Amendment of the United States Constitution.

n6 From my examination of the record, the only evidence of other displays erected by Jersey City in front of City Hall comes from the deposition of the mayor, Bret Schundler.

Q. Apart from the menorah and the na- tivity scene, can you recall any other displays erected on the city's initiative that have been erected in front of City Hall?

A. I'm sure there have been.

Q. Do you have any specific recollec- tions of any examples, as we sit here today?

A.  We  have  had  memorial  week  out there, we have flags out there, as you know,  which is right in front of City Hall, celebrating every group under the sun.

App. 160.

After  thirty  years  of  religious  promotion  by  Jersey City in front of City Hall, the reasonable observer would likely  see  the  addition  of  the  secular  figures,  which

"lacked the physical **67    sturdiness and careful po- sitioning of the religious symbols," Dist. Ct. at 10, as we saw  them  in  our  previous  opinion --  "token  additions" which do little to "secularize"  the "conveyed . . . mes-

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Page 18

sage of government endorsement of religion." Schundler I, 104 F.3d at 1452 & n.19 (noting the "artful " argu- ment of the ACLU that the reasonable observer would no doubt characterize the additional figures as "attempts at evasion of constitutional prohibitions through superficial secular tokenism"); see also Dist. Ct. at 10 (finding that the addition of the secular symbols was "a ploy designed to permit continued display of the religious symbols"); ACLU v. City of Florissant, 17 F. Supp. 2d 1068, 1075-

76 (E.D. Mo. 1998) (finding, on similar facts, that adding secular figures to a previously sectarian display did not

"negate or muffle the earlier message of endorsement"). I  am  aware  of  no  Supreme  Court  holding  that  allows the  government  to  make  a  religious  pronouncement  at Christmas and Hanukkah as long as it has made a suffi- cient number of secular pronouncements at other times of the year. Although Jersey City certainly has separate ethnic and cultural celebrations, this does **68   not ob- scure the fact that for several weeks of every year, the city government erected a display that communicated a reli- gious message. The Supreme Court's interpretation of the First Amendment simply does not allow the government to do that.

C. Lack of Supreme Court Standard

This case, after four years of litigation, underscores what I stated earlier about the problems with the standards and analyses provided by the Supreme Court in this area. In the course of this litigation, we have twice been asked to evaluate the constitutionality of two virtually identical displays. We have come to two directly opposite conclu- sions.  What  has  resulted  is  an  intra-circuit  split  in  the truest sense of the phrase.

The inconsistent results in this Court can be directly attributed  to  the  insufficient  and  inconsistent  guidance given to the inferior federal courts - or, perhaps as I ear- lier mused, the behavior at issue here is incapable of being guided. In both Lynch and Allegheny County, the Supreme Court could not agree on the correct analysis, much less the correct application of a standard to the facts. After Capitol Square Review & Advisory Board v. Pinette, 515

U.S.  753,  115   **69    S.  Ct.  2440,  132  L.  Ed.  2d  650

(1995),  it  now  appears  that  a  majority  of  the  Supreme Court  has  at  least  accepted  that  government-sponsored religious speech should be evaluated under the endorse- ment test. Until the Supreme Court decides a case in which a majority opinion of the Court utilizes a clear test to an- alyze  a  religious  display,  we  are  left  with  fact-specific inquiries  that  focus  on  the  size,  shape,  and  inferential message  delivered  by  displays  with  religious  elements, leaving almost any display that has a religious symbol in it open to challenge and any such display that has secular elements, no matter how trivial, open to judicial approval.

Unfortunately,      Justice    Kennedy's    prediction    in Allegheny County has come true. " A  jurisprudence of minutiae" relying on "little more than intuition and a tape measure" has resulted from the unclear analyses contained in the various opinions of the Supreme Court.  Lynch, 465

U.S. at 674-76, 104 S. Ct. at 1359-60 (Kennedy, J., con- curring in the judgment in part and dissenting in part).

D. Lack of Consistency

Were the foregoing the only reason for my disagree- ment, I may not have written a dissent; or if so, it **70  would may well have suffered the same end as most others I write. However, there is another aspect of this case -- the fact that we have already addressed the display at issue here, and that, in my opinion, the majority's opinion slices our earlier holding too thinly. As I noted earlier, in light of the holding in Schundler I, the only question  for us today is whether the additions of Santa, Frosty, a sleigh, and some Kwanzaa ribbons rehabilitate a display that we held to be an unconstitutional endorsement   *114    of religion. The majority, however, goes beyond this issue to question the central holding and reasoning underlying an earlier opinion of this Court--a close reading of the majority's holding reveals that the decision does not only rely on the presence of the figures or the Kwanzaa ribbons. Therefore, the majority would effectively overrule one of our own opinions:  a task reserved for the en banc Court. Although this event would be cause for alarm in any case, my dismay is heightened here where the second opinion emanates from the exact litigation as the first. In this in- stance,  the  concern  for  the  consistency  of  the  law  and the legitimacy our jurisprudence is intensified. Of **71  course the law of religious displays is characterized by intensive fact analysis and questionable line drawing, and it is possible to disagree with our prior holding and analy- sis; however, to protect the integrity of our jurisprudence, I cannot condone the appearance of one panel overruling another.

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. This case is unique in that we have already expressed our views on the precise is- sue and nearly identical facts that are the subject of this appeal. We stated, albeit in dictum, when addressing the exact display at issue here, that

the token additions of the secular symbols do little to alter the "context" or the focal points of the City's display. We reiterate that Jersey City's display of the creche at the seat of City government power impermissibly conveyed

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Page 19

a message of government endorsement of re- ligion. And, in our view, the City's addition of Santa, Frosty, and a red sled did little to secularize that message.

Schundler   **72                I, 104 F.3d at 1451. Although dic- tum, the language fulfills our responsibility to instruct and guide the District Court.

On remand, the District Court scrupulously followed our  instructions  and  reasoning  and  determined  that  the modified display violated the Establishment Clause. The District Judge made this determination, even though he may not have agreed with it, because he felt duty-bound, in an area of law fraught with uncertainty, to follow what he  perceived  to  be  the  instructions  we  had  given  him. Now, reexamining the same display almost two years after Schundler L this Court finds that the addition of the fig- ures of Santa and Frosty, who was lashed to a tree next to the sleigh, do in fact neutralize the unconstitutional mes- sage of endorsement that had been conveyed by Jersey City for three decades and reverses itself concerning the appropriateness of our earlier instructions. This constitu- tional about-face in the same case troubles me greatly, strikes to the core of the legitimacy of our jurisprudence, and exposes us to well-earned criticism for inconsistency and for giving insufficient respect to an earlier instruction by the Court.

E. Conclusion

I conclude that **73    the message of this display remains the same as that of the original display. On one side, the menorah and the Christmas tree tower over the Santa Claus. On the other side, a manger, representing the site where Jesus was born, dominates the scene. Next to the manger, a cart and a nativity scene reflect the action that myth says surrounded the birth of Jesus. Off to the side is the sleigh, and the snowman is placed behind and to the side of the scene. The dominant element of each side of   *115   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.

By underestimating the importance of the size, loca- tion, and number of the secular elements of the display, we have now essentially given governments free reign to design their religious displays in as sectarian a manner as possible. In addition, if the government should happen to cross the line and convey an unconstitutional message, it needs merely to add one or two more token secular fig- ures and try again. I **74   do not think this is the proper message to deliver.

*116   SEE APPENDIX A IN ORIGINAL

*117   SEE APPENDIX B IN ORIGINAL

*118   SEE APPENDIX C IN ORIGINAL

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