Like many other perplexing constitutional issues, the issue of what religious symbols may occupy various public spaces is essentially a where-to-draw-the-line question.  Only absolutists would find objectionable a religious painting in the National Gallery of Art, and only absolutists would see no problem with the placement of a giant crucifix on top of the Capitol Building.  A line will have to be drawn, and the differences between a constitutionally permissible religious display that is close to the line and a constitutionally impermissible display that is also close to the line may seem laughably small--or even silly.  Welcome to "the-two-plastic-animals rule."

Lynch (1984) and County of Allegheny (1989) both concern the placement of nativity scenes on public property during the Christmas season.  In Lynch, the Supreme Court uses the three-prong Lemon test to conclude that a creche in Pawtucket, Rhode Island does not violate the Establishment Clause.  Five years later, the Court uses the same test in Allegheny to conclude that a creche in a county building violates the Establishment Clause.  The distinguishing feature, Justices Blackmun and O'Connor suggest, is that the Pawtucket display included secular Christmas symbols such as a Santa Claus and--yes--two plastic animals (reindeer and elephants).  The presence of the secular symbols made the overall effect of the display more a celebration of a season than an endorsement of religion. By contrast, Allegheny County's display featured only a creche surrounded by poinsettias-- and no secular symbols. (The Court in Allegheny upholds the constitutionality of a menorah, also set on public property in Pittsburgh, in part because it is dwarfed by a nearby 45-foot Christmas tree, minimizing the likelihood that the menorah could be taken as a sign of government endorsement of Judaism.) [See photos of the two displays involved in Allegheny below:]

In 1995, in Capitol Square Review Board, the Court considered whether a free-standing cross, placed by the KKK in a public square across from the Ohio State Capitol building, would violate the Establishment Clause.  Concluding that the space in question was a public forum (a space traditionally used for, or  set aside for, expressive activity), the Court ruled that private placement of the cross would not constitute an endorsement of religion.  Writing for four members of the Court, Justice Scalia insisted that the test was not whether a reasonable person might perceive the cross to be an endorsement of Christianity by Ohio.  Scalia said the real issue is whether Ohio promoted religion, and promotion is not--he concluded-- to be found when a private organization is allowed to use a public forum for religious expression on the equal terms with other organizations.

Private crosses, including Klan cross, in front of the Ohio statehouse. These are the crosses involved in Capitol Square.

The Ten Commandments in the U. S. Supreme Court Ten Commandments monument in front of the Texas State Capitol  in Austin.  Its placement was upheld by the Supreme Court. In the 1980 decision of Stone v Graham the Court, in a 5 to 4 vote, struck down a Kentucky law that required the placement of a copy of the Commandments in public school classrooms.  In June 2005, the Supreme Court decided two more cases, also by 5 to 4 votes, involving the placement of the Ten Commandments on public property.  The Court upheld a challenge to to the placement of a framed copy of the Commandments on the walls of two Kentucky county courthouses (McCreary County v ACLU), but rejected a challenge to the placement of a large stone monument (installed by the Fraternal Order of Eagles) in front of the Texas Capitol (Van Orden v Perry).  In the Kentucky cases, the Court found the placement of the Ten Commandments was motivated by the religious purpose of promoting religion, while in the Texas case the Court concluded that the monument, placed by a private organization on the state grounds some forty years earlier and surrounded by other monuments, had--in its context--the primarily secular purpose of reminding  viewers of the role religion played in shaping national values.  Justice Breyer, in his concurring opinion, provide the key fifth vote to allow the monument to remain on the public grounds.  He said cases such as this require a nuanced examination of facts to determine whether the display has effects inconsistent with the values expressed in the First Amendment's two religion clauses.