Lynch v. Donnelly: The Case for the Creche
![handle is hein.journals/stlulj29 and id is 475 raw text is: LYNCH V. DONNELLY: THE CASE FOR THE CRfECHE
DAVID C. FAIRCHILD*
[B]ehold, Magi came from the East .... And opening their
treasures they offered him gifts of gold, ... [common sense,] and
myrrh.t
I. INTRODUCTION
The Supreme Court of the United States recently has demon-
strated considerable interest1 in accepting cases to determine the extent
to which a governmental body may participate in activity implicating
the first amendment's prohibition against the establishment of reli-
gion.''2 This trend can be characterized as a movement from strict sep-
aration of church and state to an accommodation, or common sense,
approach. The Court apparently is modifying traditional doctrine by
shifting emphasis and creating new elements. It has been asserted that,
by the holdings in these recent cases, [tlhe Court itself has created
new uncertainity about the question.'
In Lynch v. Donnelly,4 the Court was petitioned to clarify the
method of analysis used to determine the point at which governmental
activity becomes impermissible. The Court held that a city's inclusion
of a cr6che5 in its Christmas display did not violate the establishment
clause. The majority decided the issue through the application of an
implicitly modified Lemon test, a test that recently had been ignored
by the Court.
This Article will present an overview of the Lemon test, the
* B.S. Economics 1981, Saint Louis University; J.D. 1984, Saint Louis Univer-
sity School of Law. Mr. Fairchild is a member of the Missouri Bar, and is associated
with the firm of Lewis & Rice in St. Louis, Missouri.
t Matthew 2:1, 12 (New Catholic Version).
1. See, e.g., Marsh v. Chambers, 103 S. Ct. 3330 (1983); Larkin v. Grendel's
Den, 459 U.S. 116 (1982); Larson v. Valente, 456 U.S. 228 (1982).
2. Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . . . U.S. Const. amend. I.
3. Stewart, Taking Christ Out of Christmas?, 69 A.B.A. J. 1832, 1832 (1983).
4. 104 S. Ct. 1355 (1984) (permitting erection of a nativity scene in a city's
Christmas display).
5. The term nativity scene will be used synonymously with the term creche
throughout this Article.
6. Donnelly, 104 S. Ct. at 1362-65. The Lemon test derives its name from the
case of Lemon v. Kurtzman, 403 U.S. 602 (1971). See infra notes 146-85 and accom-
panying text.](ViewImageLocal?handle=hein.journals/stlulj29&div=26&collection=&method=preview&ext=.png&size=3)
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Lynch v. Donnelly: The Case for the Creche
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