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The Endorsement Factor

40 Pages Posted: 24 Jun 2011 Last revised: 27 Jul 2011

Marci A. Hamilton

Cardozo Law School


During the 1980s, the Supreme Court decided two important cases addressing the constitutionality of local government displays of crèches, or nativity displays, a mere five years apart. The Court held in Lynch v. Donnelly that a crèche located within a display of a variety of Christmas symbols, including, “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights,” and a, “Season’s Greetings,” banner was not a violation of the Establishment Clause and thus constitutional. The case, however, did not finally determine the constitutionality of crèche displays because the Court treated the issue as heavily fact-dependent. Five years later, in County of Allegheny v. ACLU, the Supreme Court held the display of a crèche situated on the courthouse’s interior steps did violate the Establishment Clause.

Keywords: Establishment clause, endorsement, First amendment, separation of church & state, law & religion, constitutional interpretation, crèche

Suggested Citation

Hamilton, Marci A., The Endorsement Factor. Arizona State Law Journal, Vol. 43, pp. 1-39, 2011; Cardozo Legal Studies Research Paper No. 343. Available at SSRN:

Marci A. Hamilton (Contact Author)

Cardozo Law School ( email )

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