Full opinion text
PER CURIAM: The court is of the view that the judgment must be reversed because the plaintiffs are entitled to a decree enjoining the continuance of the Government’s current participation in the Christmas Pageant of Peace, including as it does a membership in planning and organization committees that violates the “entanglement” test of the Establishment clause of the First Amendment. On this point the opinions filed by Judges Tamm and Leventhal are in accord. Following the reinstatement of the complaint plaintiffs will be entitled to a decree, but a question may arise as to its proper scope. No further legal question arises if the pertinent groups and officials of the Christmas Pageant of Peace conclude that the creche will be discontinued as to future Pageants. If the creche is retained, and the Government decides to terminate all sponsorship or connection with the Pageant, appropriate plaques should be ordered by the District Court, as set forth in Judge Leventhal’s opinion. If the creche is retained and the Government wishes to maintain a connection with the Pageant — say, limited to the financial aid presently provided and/or technical sponsorship — it will have to prepare new regulations or amendments to the existing regulations. These regulations or modifications would have to be grounded in neutral principles and criteria that assure non-discriminatory definition of the events that are afforded any such Government aid or technical sponsorship. It is the opinion of the -Court, however, that if the Government promulgates the regulations and the Christmas Pageant of Peace qualifies for financial aid or technical sponsorship thereunder, such Government involvement will not be constitutionally defective. Of course, any proposal for retention of Government connection with the Pageant would have to be accompanied by a proposal for appropriate plaques. Reversed and remanded for further proceedings. Opinion filed by Circuit Judge TAMM in which Circuit Judge ROBB concurs. TAMM, Circuit Judge. In Women Strike for Peace v. Hickel, 137 U.S.App.D.C. 29, 420 F.2d 597, 602 (1969), a decision dealing with the right of access to Government owned property, Judge Leventhal noted that the Government’s co-sponsorship of the Cnristmes Pageant of Peace “[might] raise more questions than it answers.” One of those questions, specifically that relating to the First Amendment’s establishment and free exercise clause, has been tortuously wending its way through the courts since July 4, 1969, and today hopefully reaches final disposition. Mr. Justice Powell has recently noted that cases arising under the First Amendment clauses “Congress shall make no law respecting- an establishment of religion, or prohibiting the free exercise thereof,” have presented “some of the most perplexing questions to come before this Court.” Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 760, 93 S.Ct. 2965, 2959, 37 L.Ed 2d 948 (1973)-Thus case, we unhappily anthropomorphize, is similarly disposed to perplex, confuse, and even frustrate, so sensitive and complex are the issues it pi-,- -'<>w We will not unduly quantify uuv opinion with a re-recitation of facts already ably and extensively set out in Judge Leventhal’s opinion herein, in the 1970 opinion of this court remanding this very action to the district court for further fact-finding, Allen v. Hickel, 138 U.S.App.D.C 31, 424 F.2d 944 (1970), and in the district- "ou, tU opinion from whLh this appeal was taken. Allen v. Morten, 333 F.Sop.', 8 'f>DC)071\ We will structure the opinion within the framework of the purpose, primary effect, and excessive entanglement tesis, reiterating only those t'im-s specifically relevant to our analysis. The propriety of that three-part test is well established, as Mr. Justice Powell stated recently in Nyquist, supra, 413 U.S. at 772-773, 93 S.Ct. at 2965: [T]he now well defined three-part test that has emerged from our decisions is a product of considerations derived from the full sweep of the Establish-V; Clause cases. Taken together these decisions dictate that to pass muster under the Establishment Clause the law in question, first, must reflect a clearly secular legislative purpose, e. g., Epperson v. Arkansas, 393 U.S. 97 [89 S.Ct. 266, 21 L.Ed.2d 228] (1968), second, must have a primary effect that neither advances nor inhibits religion, e. g., McGowan v. Maryland, [366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961)]; School District of Abmgton Township v. Schempp, 374 U.S. 203 [83 S.Ct. 1560, 10 L.Ed.2d 844] (1963), and, third, must avoid excessive government entanglement with religion, e. g., Walz v. Tax Comm’n, [397 U.S. 664, 90 S. Ct. 1409, 25 L.Ed.2d 697] (1970)] See Lemon v. Kurtzman, [403 U S. 302, 612-614, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)]; Tilton v. Richardson, 403 U.S. 672, 678 [91 S.Ct. 2091, 29 L.Ed.2d 790] (1971). (fooinotv omitted.) I. Purpose i:] Wnen determining ,'pn;'po,‘-'-” n this situation we yve A end vbh ,,.n unusual problem, for ->? Judg« Levc 'tuai has pointed out in his opinion we are unable to follow “the familiar analysis of the intent of a legislature” and rather must “discern the purposes of activities of officials of the Executive Branch.” Qur de novo look at the record has convinced us when considering both the stated purposes of the Pageant and the r~n/>T,s of the Government officials involved over „iio py.°t two decades as reflecting upon flic Govermentv ~dhor•mvi, tc thus" sí.ytfd. purpures, that the C-uvc-iui^rA’s i"vo,'rmi,f-i,t in thn Pag- eant of Peace “reflect [s] a clearly secular . . purpose.” The Pageant itself is an outgrowth of the traditional National Community Christmas Tree Celebration, and as the record amply demonstrates evolved in 1954 as a vehicle for bolstering tourism in the District of Columbia. On a more philosophical level its continually expressed purpose has been that of manifesting this “nation’s desire for ‘Peace on Earth, Goodwill Toward Men.’ ” The Pageant is conducted each year at the approximate time of the celebration of the national legal holiday of Christmas, and is meant to serve as “a visible expression of this Nation’s aspiration to foster peace, understanding and friendship between the nations of the world and the American People.” The creche itself, while obviously a religious symbol, is part of a commemoration of “the Nation’s celebration of Christmas as a national holiday, by depicting all the traditional aspects of our national history associated with Christmas.” While the creche is utilized neither to promote nor profane any religion, it is “intended to be reverential to the religious heritage aspect of Christmas.” These are the express purposes for both the existence of the pageant as a whole and the creche as one of its many integral parts, and they have been consistently stated throughout the history of the Pageant. We can find nothing in the record to convince us that the Government’s involvement, which is similar in kind to its cooperation with other national celebration events, e. g., The Cherry Blossom Festival, the President’s Cup Regatta, and the National Independence Celebration, is predicated upon any other, non-secular purpose. We note, however, that “the propriety of purposes may not immunize from further scrutiny a law which either has a primary effect that advances religion, or which fosters excessive entanglements between Church and State.” Nyquist, supra, 413 U.S. at 774, 93 S.Ct. at 2966. II. Primary Effect The Government’s participation in the Pageant is twofold: (1) Various Government officials play an active role in its management and organization, occupying two of the five positions on the Executive Committee, and two of the ten positions on the important Program Committee; *(2) the Government “cosponsors” the Pageant and provides labor assistance in the assembly, dismantling, cleaning and restoration of the area, along with various materials and equipment for use in the Pageant. The expense involved is more than nominal —in 1968, for example, the cost to the Government for the services it expended amounted to nearly $72,000. Since 1968, however, the Government has refrained from supplying any assistance in the assembly, storage, or maintenance of the creche. The Christmas Pageant of Peace, Inc. bears the cost of electricity used to light the creche and is solely responsible for its use. As we find the former type of participation infirm under the entanglement test discussed infra, for purposes of discussion of the primary effect of the Government’s involvement we will consider only the effect of its financial assistance and nominal co-sponsorship. The recent Nyquist opinion elucidates that Government action may have multiple “primary” effects, in the sense that the constitutional propriety of an action depends not on whether the primary effect is legitimately secular but on whether the action in any way has the “direct and immediate effect of advancing religion,” or conversely “only a ‘remote and incidental’ effect advantageous to religious institutions.” Ny-quist, supra, 413 U.S. at 784, 93 S.Ct. at 2971 n. 39. It matters not in our analysis whether this may be considered a widening of the primary effect test beyond previous precedent (although Mr. Justice Powell’s discussion should belie such a consideration, see Nyquist, supra, 784 U.S. at 413, n. 39, 93 S.Ct. 2955) for our review of the record convinces us that the Government’s limited involvement in the Pageant of Peace can have no more than a “remote and incidental” effect advantageous to religious institutions. In Hunt v. McNair, 413 U.S. 734, 743, 93 S.Ct. 2868, 2874, 37 L.Ed.2d 923 (1973), the Supreme Court iterated the guidelines to be followed in administering the primary effect test: Aid normally may be thought to have a primary effect of advancing religion [1] when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or [2] when it funds a specifically religious activity in an otherwise substantially secular setting. The first of these categories recognizes that religion can so permeate a specific activity that its “religious and secular . functions are in fact inseparable,” Tilton v. Richardson, 403 U.S. 672, 680, 91 S.Ct. 2091, 2097, 29 L.Ed.2d 790 (1971), while the second recognizes that even if the religious and secular functions are separable, without proper controls (whose extensiveness vary proportionately with the degree of religious permeation, see Hunt, supra, 413 U.S. at 734, 93 S.Ct. 2868) the Government involvement may nonetheless have a primary effect of aiding religious activity. See Nyquist, supra, 413 U.S. at 774, 93 S.Ct. at 2966, where maintenance and repair grants for parochial elementary and secondary schools were struck down because, as the Court stated, “[n]o attempt is made to restrict payments to those expenditures related to the upkeep of facilities used exclusively for secular purposes, nor do we think it possible within the context of these religion-oriented institutions to impose such restrictions.” The Supreme Court has yet to find aid to an institution constitutionally defective because religion so permeated the institution that the secular and sectarian functions were inseparable. It has noted, however, a very real distinction between the degree of permeation that exists in parochial elementary and secondary schools as compared to Church-related institutions of higher learning. See Hunt, supra, 413 U.S. at 734, 93 S.Ct. 2868; Nyquist, supra, 413 U.S. at 776 n. 32, 93 S.Ct. 2967; and Lemon v. Kurtz-man, 403 U.S. 602, 615-620, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Yet, even in the instance of aid to parochial elementary and secondary schools, institutions which the Court referred to in Lemon, supra, 403 U.S. at 616, 91 S.Ct. 2105, as involving “substantial religious activity and purpose,” aid in the form of secular textbooks was permitted in Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). In Tilton, supra, 403 U.S. at 681, 91 S.Ct. at 2097, the Court specifically took note that “[in Allen] the Court refused to assume that religiosity in. parochial elementary and secondary schools necessarily permeates the secular education that they provide.” The Court has also twice specifically rejected such a proposition with respect to Church-related institutions of higher learning, in Tilton, supra, 403 U.S. at 680-681, 91 S.Ct. 2091, and Hunt, supra, 413 U.S. at 663, 93 S.Ct. 2868. In Tilton the Court enumerated factors which might suffice to invalidate Government aid to educational institutions under this category of the effect test. Among these were religious restrictions on admissions, required attendance at religious activities, compelled obedience to the doctrines and dogmas of a particular faith, required instruction in theology and doctrine, and a general purpose of propagating a particular religion. While we recognize that comparisons of the situation sub judice with the aid-to-education decisions of the Supreme Court can be misleading, we do not believe that the record shows the Pageant to be the type of institution with which the Court was concerned when it spoke of one “in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission.” The governing body of the Pageant, the Christmas Pageant of Peace, Inc., is a non-sectarian, nonpartisan, non-profit civic organization organized and promoted by the Washington Board of Trade; its reason for existence is not the furtherance of a religious mission, but, bluntly speaking, the furtherance of tourism in the District of Columbia; it accomplishes this through a Pageant celebrating the national legal holiday of Christmas, dedicated to peace and understanding and following the admirable theme of “Peace on Earth, Goodwill Toward Men;” the Pageant itself is not subsumed in religiosity, but rather the creche, the only religious symbol in the celebration, is one of many integral displays and is manifestly utilized only to emphasize the religious heritage aspect of the Christmas holiday; finally, although good motives cannot save impermissible actions, the Supreme Court has made clear that analysis of activities and reason for being can have a direct bearing on the permeation of religiosity in any institution. It would be carrying the logic of the primary effect test to an unwarranted extreme to find in this case that appellant’s proof that the creche was a patently religious symbol met its burden of showing that the Pageant is “an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission.” See Hunt, supra, 413 U.S. at 746 n. 8, 93 S.Ct. at 2876. Such a finding does not save the Government’s involvement with the Pageant from further scrutiny, for its association with the Pageant — an activity we classify as “substantially secular” —may nevertheless be prohibited because of its contact with an ostensibly “sectarian” aspect thereof, the creche. The Government, of course, must comply with the mandates of the Constitution. Where it becomes involved in activities that are subject to First Amendment scrutiny it must take pains to limit its involvement in such a way that it results in no “direct and immediate” effect advantageous to religion. Failure to so limit its involvement can (as in Nyquist, supra) render such involvement constitutionally defective, and the degree of religiosity permeating the activity with which it is involved can have a direct bearing on what controls it must establish. As the Court stated in Hunt, supra, 413 U.S. at 746, 93 S.Ct. at 2875: The Court’s opinion in Lemon and the plurality opinion in Tilton are grounded on the proposition that the degree of entanglement arising from inspection of facilities as to use varies in large measure with the extent to which religion permeates the institution. Although that language appeared in the discussion of excessive entanglement, we find it accentuates the fact that we are involved in a balancing test, considering variables such as the degree of sectarianism in the institution or event with which the Government is involved, the extent of the Government’s involvement, and the controls placed thereon It is that balancing test which determines whether the Government involvement has more than a “remote and incidental effect beneficial to religious institutions.” We do not agree with Judge Leventhal that the Supreme Court’s admonishment in Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472, 480, 93 S.Ct. 2814, 2819, 37 L.Ed.2d 5091 (1973), that “the State is constitutionally compelled to assure that the state-supported activity is not being used for religious indoctrination,” can somehow work to procedurally change the burden of proof as to the ultimate effect of the Government’s involvement once the appellant has offered evidence that the creche is a patently religious symbol. The relevance of our disagreement on that factor is minimal, however, for de novo review of the record convinces us that the evidence clearly shows, when considering the nature of the Government’s involvement and the overall effect of the creche, that the Government’s involvement is constitutionally permissible. We do not dispute that the creche is an obvious religious symbol, nor do we consider lightly the testimony of plaintiff’s witnesses concerning its effect upon them. Yet when we engage in the inevitable “line drawing” that this and other First Amendment problems require, see United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), we do not find the Government’s involvement constitutionally infirm. In reaching such a conclusion we are particularly impressed by the following factors: (1) the secularized nature of the Pageant and, to a certain degree, of the Christmas holiday season itself; (2) the utilization of the creche only to manifest the religious heritage aspect of the Christmas celebration, as only one of many “traditional aspects of our national history associated with Christmas”; (3) the presence of explanatory plaques on the grounds of the Pageant which state, inter alia: The National Park Service sponsors the Pageant on the basis that this National Celebration Event is wholly see-ular in character, purpose, and main effect. The illuminated creche display is intended to be reverential to the religious heritage aspect of Christmas; but that display is not meant, and should not be taken, either to promote religious worship, or profane the symbols of any religion; (4) the fact that the Government involvement is limited to the non-creche aspects of the Pageant, and apparently is similar in kind to that regularly supplied by the Government to other national celebration events; and finally, (5) the fact that the creche should not be considered in isolation but as an integral part of the whole of the Pageant, and that the question with which this court is faced is not whether the creche, considered in isolation, has a religious effect, but whether the Government’s limited involvement in the Pageant — an admittedly secular event whose only “religious” content is that it recognizes the religious heritage aspect of Christmas by means of an admittedly religious symbol — has more than a “remote and incidental” effect advantageous to religion. III. Excessive Entanglement In Walz v. Tax Commission, 397 U.S. 664, 674, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), a decision upholding the constitutionality of property tax exemptions for religious organizations, the Supreme Court enunciated an “excessive entanglement” approach to First Amendment questions. The Court noted that “the policy of neutrality” required by the First Amendment “seeks to minimize” a kind of “day-to-day” relationship between Church and government, and that the policy of tax exemptions for Church property was enhanced because it furthered the desired insulation and separation between the two. One year later in Lemon, supra, the Court elaborated on the approach and, in what has been described as a “doctrinal departure,” treated it as a distinct third test to be considered apart from either the purpose or primary effect tests. Lemon, basically dealt with aid to parochial elementary and secondary schools in the form of salary supplements for teachers. The Court noted, 403 U.S. at 619, 91 S.Ct. at 2114, that the religious permeation in the schools was of such a degree that “[a] comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that [the] restrictions [implemented to prevent the funds from being used for religious purposes] are obeyed and the First Amendment otherwise respected.” Noting that “we cannot ignore here the danger that pervasive modern governmental power will ultimately intrude on religion and thus conflict with the Religion Clauses,” 403 U. S. at 620, 91 S.Ct. at 2115, the Court concluded that the prophylatic administrative contacts required would “involve excessive and enduring entanglement between state and church.” 403 U.S. at 619, 91 S.Ct. at 2114. Importantly, Lemon also recognized a second branch of the entanglement test, the possibility that such Governmental action will result in intensified “[p]olitical fragmentation and divisiveness on religious lines” because of “the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow.” 403 U.S. at 623, 91 S.Ct. at 2116. The entanglement test is thus concerned with both administrative and political ramifications of Government involvement, and is geared to minimize interference, monitoring, and any divisive impact among the people. While the contacts and conflicts inherent in the Government’s position on various committees of the Christmas Pageant of Peace, Inc. amount to considerably less than involvement in the everyday working affairs of a religious institution, and considerably less than the constant surveillance and interference discussed in Lemon, we must agree with Judge Leventhal that the membership of government officials on various of the committees presents entanglement difficulties. Again, the involvement we consider here today is novel in terms of Supreme Court precedent and thus does not fit well in the pigeonholes of past decisions. The test, however, emanates from the principle that Government involvement with religion should be kept to a necessary minimum, and that there should be avoided not only the actual interference but also the potential for and appearance of interference with religion. Judge Leventhal has enumerated instances where Government officials have been placed in (at best) awkward positions because of the conflict between their roles as representatives of the Government and decision makers on the planning and other committees. Although the officials involved have maintained an admirable “even keel” and desire for fairness in dealing with the sensitive matters thrust upon them, in view of the limited purpose such membership serves and the goal of minimal contacts, and considering the conflicts of the past, possibility for conflicts in the future, and inference; some may draw from the Government membership, this type of activity should not be engaged in by representatives of the Government and is constitutionally prohibited by the First Amendment. Although the Government could completely put an end to any semblance of entanglement by terminating its role m the Pageant, we cannot conclude that such action is constitutionally required. When the Government disassociates itself from membership un various committees its involvement can be limited to nominal co-sponsorship in terms of labor and equipment provided for the construction and disassembly of the non-creche aspects of the Pageant. The administrative contacts would be minimal —certainly no greater than those found proper in Tilton and Hunt — for there need be only so much as is necessary to assure that the labor and equipment provided is not utilized for the creche. Political divisiveness would be minimal (especially in view of the regulations that we require to assure continued neutrality), and although continuing on a yearly basis the involvement would not be subject to pressures i v increased aid by way of continuing appropriations of the nature involved in Lemon and Ny-quist. The Supreme Court has in the past been influenced, either when considering involvement from the standpoint of entanglement or primary effect, by the “neutrality” of a specific Governmental action. Thus, in Wain Mr. Justice Harlan in his separate opinion noted that “noninvolvement is further assured by the neutrality and breadth of the exemption,” 397 U.S. at 698, 90 S.Ct. at 1426, and in Nyquist Mr. Justice Powell, when discussing the effect of Governmental involvement, noted, 413 U.S. at 782, 93 S.Ct. at 2970 n. 38: Allen and Everson differ from the present cace in a se.-end important respect. In both cases tne ejass oí beneficiaries included all school children, those in public as wen ■?<■' those in p-'-vate schools. See also Tilton v, Richardson, supra, in which federal aid was made available to all institutions of higher learning, and Walz v. Tax Commission, supra, in which tax exemptions were accorded, to all educational and charitable nonprofit institutions. We deeply respect and adhere to Mr. Justice Douglas’ admonition in Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952) that “[t]he government must be neutral when it comes to competition between sects,” but we find no evidence that neutrality is violated here. The unrefuted evidence in the record is that the Government’s involvement with the Pageant is similar to the cooperation it provides “to other private organizations which sponsor the production of officially recognized national celebration events, such as the Cherry Blossom Festival, the President’s Cup Regatta, the National Independence (Fourth of July) Celebration.” This cooperation is based on a desire to further the secularized themes of these events, booster tourism, and best utilize the “park areas in the very recreational aspects to which Congress has directed their primary dedication.” See 16 U.S. C. §§ 1, 20-20g (1970). There has been no showing that the selection of the Pageant of Peace (which attracts nearly a half-million visitors a year) as an event to support is based upon any other purpose, nor that it has any other primary effect. To assure that this neutrality continues and is not the subject of continuing controversy, we require that if the Government desires to continue its support of the Pageant it must promulgate regulations governing such involvement, as set out in the Court’s Per Curiam opinion. Accordingly, we remand the ease to the District Court for proper disposition in accordance with the Per Curiam opinion. Judge Leventhal is of the view that while he does not discern in what respect a new regulation that comports with the requirement of neutral principles and non-discriminatory criteria could run afoul of the Estab-lisliment clause, he would prefer to withhold any pronouncement on that issue pending the emergence of such regulation and of any legal controversy that may take shape. . See Allen v. Morton, 333 F.Supp. 1088, 1092 (D.D.C.1971), and the references to the record contained therein: [T]lie basic purpose of the Pageant, however clothed, has always been admittedly secular It was to provide a colorful event during the Christmas season which would attraet visitors to Washington and thereby increase the business of local merchants. . See The Story of the Christmas Pageant of Peace, 197Ó Program, PI. Exhibit, 2, ani the text of the plaques similarly titled and installed on the grounds of the Pageant on our recommendation, reprinted at 333 F. Supp. 1095 n.6. We agree with Judge Leventhal that caution must he taken in utilizing the language of the plaques, since they were written in light of this litigation and thus are susceptible to self-serving statements. However, we find that their message is essentially the same as that consistently given in the Programs from past years. See, e. g., the 1964, 1965, 1966, 1967, 1968, 1970 Programs, Def. Ex. 51, 53, Pl. Ex. 15, 17, 18, 2. . We noted in Allen v. Hickel, 138 U.S.App.D.C. 31, 424 F.2d 944, 949 (1970), following reference to printed material in an official Pageant of Peace pamphlet: This language as to purpose of the Pageant sets forth that the creche was intended to be simply one of a group of objects assembled to show how the American people celebrate the holiday season surrounding Christmas. As such its purpose is no more objectionable than that of a postage stamp bearing a reproduction of a religious painting or a Government-sponsored museum display illustrating various religious or holiday customs. See Affidavit of Russell Dickerson, Associate Regional Director, National Capital Region, National Park Service, Def. Ex. 1. para. 3: The National Park Service views its official cooperation with the Christmas Pageant for Peace, Inc., in the production of the Christmas Pageant, and in making the Ellipse (President’s Park) area available to that organization, on its request, in connection with that event, as proper National Park Service functions. We similarly extend our cooperation to other private organizations which sponsor the production of officially recognized national celebration events, such as the Cherry Blossom Festival, the President’s Cup Regatta, the National Independence (Fourth of July) Celebration. We likewise cooperate in other National-Capital-Park-connected events in the Nation’s Capital. The officially recognized national celebration events in particular attract to the National Capital Park areas thousands of visitors who are thus enabled to enjoy those park areas in the very recreational aspects to which Congress has directed their primary dedication. See 16 U.S.C. §§ 1, 20-20g; 36 C.F.R. § 50.19(d)(2). . For a compact discussion of the development of purpose, primary effect, and excessive entanglement tests see Note, The Supreme Court, 1970 Term, 85 Harv.L.Rev. 1, 171-173 (1971). . These figures represent the breakdown for the 1970 Pageant, and are the most recent available in the record. See The 1970 Christmas Pageant of Peace Program, PI. Ex. 2. . See Def. Ex. 1, attachment 112. . See Def. Ex. 1, attachment E. . Our interpretation of the “subsumed” test is one which automatically disqualifies any form of assistance or Covernmental involvement with a particular institution because the institution is so sectarian that even what would normally be considered its secular functions are subsumed in a religious mission. In Tilton v. Richardson, 403 U.S. 672, 680, 91 S.Ct. 2091, 2097, 29 L.Ed.2d 790 (1971), the Court stated : Under this concept appellants’ position depends on the validity of the proposition that religion so permeates the secular education provided by church-related colleges and universities that their religious and secular educational functions are in fact inseparable. The Supreme Court has recognized that parochial elementary and secondary schools are institutions which closely approach this limit, although Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), would seem to belie the proposition that separating the secular from sectarian is in all instances impossible. . Some of the factors which the Court noted in l,eti-on in reaching such a conclusion ore the prorimity to parish churches, the religious symbols and statutory adorning the school buildings, religiously oriented extracurricular activities, and the dedicated efforts ■ of the nuns who comprised ai>proxi-mately two-thirds of the teachers to provide an atmosphere in which religious instruction and vocations are natural and proper parts of the life in such schools. These various characteristics make the schools “a powerful vehicle for transmitting the Catholic faitli to the next generation.” . See Tilton v. Richardson, 403 U.S. 672, 682, 91 S.Ct. 2091, 29 L.Ed.2d 790 (971). . Id. See also Lemon v. Kurtzman, 403 U. S. 602, 616, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). . The second part of the primary effect test, “[a]id normally may be thought to have a primary effect of advancing religion . . . when it funds a specifically religious activity in an otherwise substantially secular setting,” Hunt v. McNair, 413 U.S. 734, 743, 93 S.Ct. 2868, 2874, 37 L.Ed.2d 923 (1973), recognizes that unless restricted and controlled, Government involvement may advance religiosity even though the institution with which it is involved is not subsumed in a religious mission. . The Pageant, as previously discussed, is not subsumed in a religious mission, but it cannot be ignored that the religious symbol contained in the Pageant can have a religious effect, and the degree of this effect can vary according to how it is utilized. In turn, the effect of the Government’s involvement therewith can vary according to the restrictions and controls placed thereon. A balancing of all of these factors determines if the effect of the Government’s involvement is more than remotely or incidentally beneficial to religious institutions. The creche as used in the Pageant is not supposed to have a sectarian effect in the sense of advancing any religious belief. The reality of the situation — considering its status as a Christian religious symbol — leaves open for debate whether its use is susceptible to misinterpretation, and the Government’s involvement looked upon as an imprimatur of the belief that it symbolizes. . In addition to the Levitt reference, Judge Leventhal draws support for his burden-shifting theory from Mr. Chief Justice Burger’s statement in Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S.Ct. 2105, 2111, 29 L.Ed. 2d 745 (1971), that the State legislatures created statutory restrictions designed to guarantee that the State financial aid supported only the secular educational function “in candid recognition that these programs approached, even if they did not intrude upon, the forbidden areas under the Religion Clauses.” Our prior opinion noted that “[p]erhaps an appropriate accompanying plaque, rather than a mere explanation in pamphlets with lesser circulation, might serve ... to allay the impression of Government sponsorship of religious belief . . . . ” Allen v. Hickel, 138 U. S.App.D.C. 31, 424 F.2d 944, 949 (1970). We look upon such remarks as indicating only that the Government must recognize its burden to separate out the secular from sectarian when it becomes involved in activities that purportedly raise First Amendment difficulties. This it is constitutionally required to do. Yet, the appellant bears the procedural burden of showing that the Government has failed in its constitutional obligations. See, e. g., Hunt v. McNair, 413 U.S. 734, 746, n.8, 93 S.Ct. 2868, 2876, 37 L.Ed.2d 923 (1973), and Tilton v. Richardson, 403 U. S. 672, 681-682, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), where the plaintiffs’ failure to introduce sufficient evidence to convince the Court that the religious and secular educational functions of Church-related institutions were inseparable resulted in a failure on its part to carry the burden of proving that a primary effect of the Government’s involvement advanced religion. Thus, although it is the Government’s obligation to comply with the mandates of the First Amendment it is the jilaintiff’s burden to prove that the Government has failed in this obligation. . See Note, The Supreme Court, 1970 Term, 85 Harv.L.Rev. 1, 108 (1971). . See id. at 172-78: The important factors now excluded from the effect criterion — the impact of the legislation on “voluntarism in matters of religion, mutual abstention of the political and religious caretakers, and governmental neutrality toward religion and between religion and non-religion” [see Freund, Public Aid to Parochial Schools, 82 Ilarv.L. Rev. 1680, 1684 (1969)] — are considered during the course of the separate inquiry into entanglement. (Footnote omitted.) . Although the creche “is exclusively the property of the Christmas Pageant of Peace, Inc.” and all activities regarding storage, maintenance, repair, erection and disas-sembly of the creche is “the responsibility of the non-Federal membership of the Pageant of Peace Committee,” See Feh Ex. 1, para. 5, attachments E and F, discontinuance of membership on these committees -will further insulate the Government from conflict producing situations regarding the creche. . See Pl.Ex. 38. . Mr. Justice Harlan discussed his theory of what “neutrality” requires in Walz v. Tax Commission, 397 U.S. 664, 696, 90 S.Ct. 1409, 1425, 25 L.Ed.2d 697 (1970). (Harlan, J., concurring) : Neutrality in its application requires an equal protection mode of analysis. The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders. In any particular case the critical question is- whether the circumference of legislation encircles a-class so broad that it can be fairly'' concluded that religious institutions could be thought to fall within the natural perimeter. The Pageant of Peace, while certainly not a religious institution, is an event which “fall[s] within the natural perimeter” of those activities to which the Government has in the past rendered support of one kind or another. It is a major tourist attraction which enhances business in the District, utilizes Park land in a recreational sense, and fosters a principle — this nation’s desire for peace and understanding — with which the Government can indeed associate itself. These “neutral principles” govern the Government’s involvement, and we cannot find in the record evidence to convince us that the one religious aspect of the Pageant gives an unwarranted and unconstitutional effect to that involvement. Absolute neutrality is different from constitutional neutrality, and thus statements that the Government is not “absolutely” neutral — in that here it co-sponsors an event with a Christian religious symbol while it does not co-sponsor one with a non-Christian or, to the extent possible, a non-secular symbol — do not move me to automatically conclude that its action is constitutionally defective. The primary effect test itself is proof of such a distinction, for an action of the Government not “absolutely” neutral between religions or between religions and non-religion is not automatically unconstitutional — it is subject to scrutiny to determine if this lack of “absolute” neutrality has more than a remote and incidental effect beneficial to a religious organization. As Mr. Justice Douglas noted in Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 683, 96 L.Ed. 954 (1952) : “A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: ‘God save the United States and this Honorable Court.’ ” Indeed, such a statement is not absolutely neutral, yet is it constitutionally defective?
LEVENTHAL, Circuit Judge, concurring: Residents of the metropolitan area of the District of Columbia brought an action for injunctive and declaratory relief against the Secretary of the Interior and subordinate officers of the National Park Services, challenging the government’s sponsorship of the Christmas Pageant of Peace held annually on the Ellipse, a park adjacent to the White House, as a violation of the Establishment Clause. More particularly, the plaintiffs challenge the inclusion in the exhibits of the Pageant of a creche depicting the Nativity Scene. Violations of the Establishment Clause arise when governmental activity has a non-secular purpose, Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), or has an effect of “substantial religious impact”, School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), or leads to excessive entanglement with religion, Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). On the entanglement issue I agree with the other members of the panel that the participation of the Government officials in the committee structure and decision making of the Christmas Pageant of Peace violates the “entanglement” test. The views set forth on that subject in this opinion, like the discussion of factual background, are in essence incorporated by reference in the majority opinion filed for the court by Judge Tamm. As to purpose and effect, the majority find that there are no constitutional problems once the entanglement problem is removed. On the purpose test, although I share the views of the majority in good measure, there are some questions that are not resolved to my satisfaction, and which I would defer pending developments on Lhe dis-entan-gloment. On ih. issue of effect, I have even greater questions, uuc to my disagreement with the approach of the District Court in certain respects, but on these matters my views apparently diverge from those of my brethren. With that extended prefatory note, this opinion will pioceed in more conventional manner, beginning with presentation of the prior proceedings and basic facts concerning the Pageant, continuing with views on the entanglement, purpose and effect issues, and concluding with comments on the problem of disposition and ■ relief. I. PRIOR PROCEEDINGS, AND DISTRICT COURT’S FINDINGS In a prior stage of this litigation, this court held that appellants have standing to sue as residents of the metropolitan area of the District of Columbia served by the park lands involved in this dispute. Allen v. Hickel, 138 U.S.App.D.C. 31, 34, 424 F.2d 944, 947 (1970). The Court also held that the record was too incomplete for making a finding under School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) as to whether the primary effect of the creche constituted “substantial religious impact”. We also left room for further factual develop-' ment as to the purpose of government sponsorship of the Pageant. In remanding the case to the district court, this court indicated its concern that the creche be presented in a manner “designed to obviate or at least minimize offense to the sensibilities” of citizens who did not believe in the religious message advanced by the creche or who might find the very display a profanation of their own beliefs. We suggested the possibility that an appropriate accompanying plaque might be able to allay the impression of Government sponsorship and set the proper tone in the representation. On remand, the district court, in a memorandum opinion of Judge Pratt, issued on November 3, 1971, held as to the purpose and primary effect tests of Abington, that there was neither a religious purpose in the Government’s sponsorship of the Pageant, nor was the primary effect of the creche that of substantial religious impact. On tho question of purpose, Judge Pratt found it to be secular, since the Pageant was intended “to provide a colorful,event during the Christmas season which would attract visitors to Washington and thereby increase the business of local merchants.” As to effect, Judge Pratt accepted the premise, substantiated by unanimous testimony, that the Nativity Scene is a religious symbol. John Wogaman, an ordained Methodist minister, and a professor of Christian ethics at Wesley Theological Seminary in Washington, testified that the creche “has a deeply religious significance.” E. James Lieberman, a practicing psychiatrist and Professor of Psychiatry^ Howard University School of Medicine, put it this way: “The creche is a symbol, I think a very powerful symbol of the predominant religion or group of religions in our society.” The conclusion as to religious symbolism was shared by witnesses called by the Government. Reverend James G. Kalaris, a member of the Program Committee of the Pageant, believed that “having the Nativity Scene at the Pageant of Peace is celebrating the birth of Christ.” Father Joseph Corbett, the Roman Catholic representative on the Program Committee, stated that, as a priest, he considered the Nativity Scene a “basic and central religious symbol” and that for him the commemoration of the birth of Christ was the “central core” of the Pageant. Based on this record, the District Court observed that “the dominant theme running through most of the testimony was that the creche is a religious symbol” and concluded that “It cannot be gainsaid that the Nativity scene, portraying as it does the birth of Christ, has religious significance . . . . ” The impact of the creche, although a clear religious symbol, was diminished, Judge Pratt concluded, by the secular setting of the Pageant as a whole. Moreover, the court indicated that plaques installed by the Government subsequent to this Court’s remand order played a central role in obviating any possible “government stamp of approval” affixed to the creche display. The court also held that a third test, formulated in Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), after our first decision in this case, that “excessive government entanglement” not be present, was also satisfied. For reasons which follow, the de novo review of the record, which the First Amendment requires, leads to a finding by all members of the court that although the purpose of Government involvement was not to promote religion, Government sponsorship and participation in the Pageant and in the decision of matters relating to the creche, constituted “excessive entanglement” with religious matters in violation of the Establishment clause. 11. DESCRIPTION OF THE CRECHE AND PAGEANT A. Physical Layout of Pageant At the evidentiary hearing, uncontro-verted testimony established the physical layout of the Pageant of Peace. The Pageant is held in the Ellipse adjacent to the White House. Ellipse Street, which runs parallel to E Street marks the northern boundary of the display. Two boardwalks called the Pathways of Peace, running south from Ellipse Street, are the principal means of entry to the Pageant. These boardwalks lead to the center of the Ellipse, where the large National Christmas Tree, which is lit by the President in the opening ceremony, provides a .colorful centerpiece. Three spokes, besides those of the Pathways of Peace, depart from the Tree and serve as pedestrian routes to the other exhibits. Directly east of the Tree is a stage where various cultural and musical events are held during the period of the Pageant. To the south is a reindeer pen and a yule log and fire area. The creche containing the Nativity scene lies directly west. Access to the creche is not restricted to the spoke running westward from the Tree. It can be reached from the reindeer pen by a walkway, or from any point and direction when, weather permitting, people walk on the grass instead of the boardwalks. The creche itself contains the traditional Nativity scene; Mary and Joseph are seen kneeling over the Christ child in a crib with the Magi, shepherds and animals in attendance. The depiction is life size and illuminated at night. B. Theme In 1970> the last year for which there is evidence in the record, the Pageant formally began on December 16, when the President participated in the lighting of the National Christmas Tree. Typically, the opening ceremony also consists of presentations of various singing groups, speeches of government officials, and religious messages in keeping with the meaning of Christmas. After the opening, the Pageant continues to feature groups presenting a selection of traditional Christmas music, but the heart of the attraction is the various exhibits which the residents and tourists in Washington can see by touring the grounds of the Ellipse. The creche, of course, is one of these exhibits. C. The Plaques Following the suggestion in our earlier opinion, the sponsors of the Pageant placed three plaques entitled “The Story of the Christmas Pageant of Peace” at locations within the Ellipse. Two of these plaques were placed at the entries of the north-south boardwalks. The third was put along the boardwalk running from the National Tree to the creche. The latter plaque was 110 feet from the creche. These plaques contain an extensive amount of text about the history of the Pageant, its attractions and themes. In ■the eighth paragraph there appears the following statement: The National Park Service sponsors the Pageant on the basis that this National Celebration Event is wholly secular in character, purpose and main effect. The illuminated creche display is intended to be reverential to the religious heritage aspect of Christmas; but that display is not meant, and should not be taken, either to promote religious worship, or profane the symbols of any religion. III. THE ENTANGLEMENT ISSUE A. The Pertinent Facts of Record The Christmas Pageant of Peace, Inc. was first organized in 1954. Before that time government involvement with the celebration of Christmas consisted of a presentation to the President of the National Community Christmas Tree, a practice which originated with President Calvin Coolidge in 1923. Originally, this tree was erected in the Ellipse, where it is today. In 1934, however, the presentation ceremonies were transferred to Lafayette Park. In 1939, the event was again moved to the Ellipse. In the 1941-1954 period, the presentation program was conducted on the Executive Mansion grounds. From its inception, the Pageant was directed by a coalition of three groups: government, business and clergy. The government played a pivotal role, through the person of Edward J. Kelley, who was Superintendent of the National Park Service when the Pageant was organized in 1954. Kelley was one of the original incorporators, General Chairman of the Executive Committee, Director, and First Vice-President of the Pageant. Business leaders associated with the Washington Board of Trade also played a central role. Three prominent members were incorporators, officers and directors of the Pageant: Edward R. Carr, President, Edward M. Kirby, Second Vice-President, and Clarence A. Arata, Secretary The Washington area Christian clergy were represented in the original organization of the Pageant through the Archbishop of Washington and the Executive Secretary of the Washington Federation of Churches, two of the “official sponsoring organizations”. Other clergymen from the Archdiocese and the Washington Federation of Churches served as co-chairmen of the “Committee for Religious Cooperation.” The organizational structure of the Pageant has not changed much since 1954. The 1970 chart, the latest in the record, shows government officials holding two of the five positions on the Executive Committee, and Theodore T. Smith of the National Capital Region, U.S. Park Service, was a member of the Program Committee and Chairman of the Grounds and Facilities Committee. The prominence of the church, at least in the sensitive Program Committee, was reflected in its strong participation through Rev. Msgr. D. Joseph Corbett of the Archdiocese of Washington, Rev. De-metrios G. Kalaris of Sts. Constantine and Helen Greek Orthodox Church, and Rev. John T. Tavlarides, of St. Sophia Greek Orthodox Cathedral. These members of the 1970 Program Committee worked side by side with the government members, Theodore Smith and Clinton C. Price of the D.C. Recreation Department. The sponsorship of the government is highlighted in the annual printed program of the Pageant, and even in the plaques which were intended to minimize this relationship. At the end of the text on the plaque, the following appears : “Dedicated by the Pageant Sponsors, Christmas Pageant of Peace, Inc. & National Park Service, U.S. Department of the Interior.” The entanglement of the government and organized religion was not confined to the formalism of an organizational chart. The organization of the Pageant required a complicated, and almost inescapable, set of actions and decisions by the government officials involved on religious matters: Guidelines on the organization’s principles had to be approved; speeches promoting the Pageant had to be made; conflicting views as to the prominence of the religious motif compromised or placated, and money or services donated to finance the Pageant’s activities. In 1956 “basic principles” were privately agreed upon, by sponsors including the D.C. Recreation Board, for the organization of the Pageant. The two “basic concepts” were as follows: 1. That the Christmas Pageant of Peace must adhere to the principle of the Christian concept of Christmas — the celebration of Christ’s birthday. 2. That the Christian concept must be maintained throughout the Pageant programs and the Pageant exhibits, (emphasis in original) The important point here is not whether the government shared these beliefs. In fact, government officials seemed to have been greatly troubled by the adoption of these principles. What is of concern is that government officials were called on by virtue of their office to participate in the decision of such questions. The Department of the Interior, which through its jurisdiction of the National Parks was the agency of government most heavily involved with the planning of the event, made available its facilities to publicize the event. While these releases dwelled principally on secular themes, the religious message, and particularly the inspiration provided by the Nativity Scene, was identified, if only to accommodate the desires of the religious leaders participating in the event. This planning and publicity activity of government officials occasions more concern than remarks of officials, such as the Secretary of the Interior, at Pageant ceremonies, since there is latitude in such remarks for purely personal observations. Still the problem exists that the Secretary of the Interior, at least on one occasion, may have been led by assistants who planned the event, and their awareness of the intense interests of the clerical members of the executive group, to draw attention to the “reproduction of the nativity scene, so treasured in this season and in the life of all Christian communities.” The role that the Government officials played in the Pageant also required them to be involved with allocating space and time to various religious groups who wished to participate in the event. Before discussing the questions that arose as to the Pageant as such, it may be instructive to take note of the occasion that arose in 1967, when a Jewish citizen proposed that there be displayed on the White House lawn a lighted Menorah — the article that holds the candles in the festival of lights holiday of Chanukah, a Jewish holiday, typically celebrated in December, that provides an occasion for rejoicing and gifts for children. Secretary Udall responded as follows : The Menorah has religious significance . . . [DJisplay of a lighted Menorah on the White House grounds could be considered by some as a form of secularization of this religious symbol which could reasonably and properly be criticised. In addition, there is the very serious question under the constitutional provision regarding Federal involvement with a specific religious activity. Thus the Secretary voiced concern over the propriety and validity of “federal involvement with a specific religious activity” on Government property. Yet the Government officials assigned a major role in planning the Program of the Pageant were involved in program decisions that necessarily made selections among faiths. In 1966 Karl Ben-net Justus, Executive Director and editor of The Military Chaplain, applied'for a role as a clergyman in the opening ceremony of the Pageant. He was informed by the General Chairman of the Executive Committee, which included two Government officials: [A]t all past pageants, it has been the practice of the committee to invite the two ecclesiastical leaders of the Protestant, Episcopal and Catholic Faiths to present alternately the Invocation and Benediction. Similarly, Archbishop Iakovas of the Greek Orthodox Archdiocese of North and South America has traditionally been invited to offer a Prayer for Peace during the program. We have felt that by calling upon these leaders, the spirit and religious principles of all Christian Faiths have been represented. Decisions of this kind differ from those pertaining to choices as to who will give a ceremonial invocation at a purely secular event. An added significance is attached because the Government is charged with selecting a group of clerical leaders whose faiths are compatible with the religious message of Christmas. Thus, the Government letter indicates that in its judgment the “religious principles of all Christian Faiths have been represented.” At a ceremonial event any religious faith, Christian or non-Christian, is satisfactory and neutrality between faiths is more likely in view of the vast number of ceremonial functions to be performed. In recent years the Government, partially in response to objections raised by the American Civil Liberties Union, has terminated all financial support for the event which is connected with the creche. However, the Government does continue to defer costs not directly connected with the creche, which include preparing the area to receive a showmo-bile, setting up the many walks, platforms, deer-yard and building, setting the tree, electrical, painting, carpentry, horticultural activities, and keeping the area and buildings policed for trash. After the event is terminated, the government bears the additional costs of labor, material and equipment used for dismantling and putting the Ellipse area back in the condition it was in before the Pageant. Total costs for these services were $72,789.78 in 1968-69. These expenses were for the benefit of the Pageant as a whole and all its parts, including the attraction and servicing of those visiting the creche. Finally, the record reveals how the Government officials enmeshed in the planning of the Pageant drew on their personal sentiments. It makes no difference whether the official was one whose comments on Pageant materials in effect advocate the centrality of the religious message, or was one who acknowledged a personal opposition to the stress on religion in the Pageant, but felt that “the overall benefits outweigh my personal views and that full participation of all persons and agencies concerned is essential to its [the Pageant’s] success.” B. Application of Pertinent Principles As long as the Government officials participated in the planning and sponsorship of the event, they could not escape religious entanglement, because the inclusion of the creche was a sine qua non of participation by church officials, and their participation in turn, was an essential element of the Pageant. Church leaders like Monsignor Corbett and Father Tavlarides were of the opinion that elimination of the creche would be “another step toward a gradual attempt to abolish the worship of God.” If the government was to preserve the event with their participation, their point of view had to be accommodated. Even Mr. Carr, the long-standing President of the Pageant of Peace, who had come to the Pageant through his association with the Washington Board of Trade, took the position that taking the creche out of the Pageant would be like taking Christ out of Christmas. The “entanglement” test voiced in Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) and Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1