The opinion of the court was delivered by: PRATT
JOHN H. PRATT, District Judge.
This suit, brought in 1969 by an Episcopal minister, an atheist, the president of the American Ethical Union, a rabbi, and a Roman Catholic priest, sought to enjoin construction and maintenance of the creche in the Christmas Pageant of Peace celebration as a violation of the Establishment and Free Exercise Clauses of the Constitution. The Christmas Pageant of Peace is held annually on federal park land. The defendants are the Secretary of the Interior, the Regional Director of the National Park Service and the Superintendent of National Capital Park Central. After oral argument, this Court granted defendants' motion to dismiss for lack of standing and, alternately, granted defendants' motion for summary judgment. Subsequently, the United States Court of Appeals for the District of Columbia Circuit denied a motion for summary reversal and on April 10, 1970, after concluding that plaintiffs had standing to seek redress for injury to non-economic values, remanded the matter to the District Court "for an evidentiary hearing and a determination of the effect of the creche under the Schempp standard." Allen v. Hickel, 138 U.S. App. D.C. 31, 37, 424 F.2d 944, 950 (1970).
At the same time, the Court of Appeals suggested: "Perhaps an appropriate accompanying plaque, rather than a mere explanation in pamphlets with lesser circulation, might serve both to allay the impression of Government sponsorship of religious belief and to set the proper respectful tone in the representation of spiritual customs." Id. at 36-37, 424 F.2d at 949-950. In a supplementary footnote, which further explained its thinking, the Circuit Court stated that "The District Court may determine that conditional relief is appropriate, i.e. that if there is substance to [plaintiffs'] complaints, they may be met by modification or supplement to the display rather than its removal." Id. at 37, 424 F.2d at 950. Acting on the suggestion referred to, the National Park Service, prior to the 1970 Pageant, erected three plaques in appropriate places explaining the secular history and nature of the Pageant.
Pursuant to the remand, this Court held a five-day evidentiary hearing on the issues raised by the complaint. Subsequently, lengthy post-trial memoranda were submitted and have been considered by the Court.
The Christmas Pageant of Peace
The Christmas Pageant of Peace ("Pageant") is an annual event initiated in 1954 commemorating the secular recognition of Christmas as a national holiday. It takes place on the Ellipse area, which is immediately south of the White House, during the period from about December 10 to the following January 3. Currently, it is co-sponsored by the National Park Service and by the Christmas Pageant of Peace, Inc., a non-sectarian, non-partisan civic organization organized and promoted by the Washington Board of Trade.
The Pageant consists of a number of displays, artistically arranged and presented, traditionally associated with the celebration of Christmas. One such display is the very large National Christmas Tree donated each year by a different State of the Union and lighted with the assistance of the General Electric Company. Fifty-seven smaller trees, representing fifty states and seven territories, line the "Pathway to Peace" leading up to the National Christmas Tree. In addition, there is a burning Yule Log, a pen of eight live reindeer borrowed from the National Zoological Park, and the illuminated life size creche, which is the subject of the present litigation. There is also an illuminated stage where many musical and ceremonial programs traditionally associated with Christmas take place during the three-week period of the Pageant.
The standard to be applied, as was pointed out by the Court of Appeals in Allen v. Hickel, is the two-fold test enunciated in Abington School District v. Schempp, 374 U.S. 203, 222, 83 S. Ct. 1560, 1571, 10 L. Ed. 2d 844 (1963);
"The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." (emphasis supplied)
More recently, in Walz v. Tax Commission, 397 U.S. 664, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970), the Supreme Court, considering the possible limits of governmental involvement with religion, added a possible third test. In this case, which held that property tax exemptions to churches do not violate the Establishment Clause or the First Amendment, the Court speaking through Chief Justice Burger, stated at page 674, 90 S. Ct. at page 1414:
"We must also be sure that the end result -- the effect -- is not an excessive government entanglement with religion. The test is inescapably one of degree."