430 U.S. 188, 193 (1977).[18]SeeWalz v. Tax Comm. Of City of N.Y., 397 U.S. 664, 675 (1970) (“The grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state.”); Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v.Amos, 483 U.S. 327, 337 (1987) (“We do not see how any advancement of religion achieved by the [exempt religious organization] can be fairly attributed to the Government, as opposed to the Church.”)
Liberty v. Nyquist, 413 U.S. 756, 792 (1973).[ii]Walz v. Tax Commn. of City of New York, 397 U.S. 664, 672 (1970)[iii]Id. at 676.
The Court distinguished circumstances in which the maligned religious symbol graced courthouse steps, state-owned plazas, or a City Hall Park. Pushing that “secular background” theme, the Court seemed convinced by a kind of secularization by sectarian company in reasoning that “in the immediate vicinity of the menorah, as well as throughout the downtown area, are garlands, wreaths, and white lights, which, like the Christmas trees, “‘typify the secular celebration of Christmas’” and, as such, “while the menorah does not lose its religious symbolism, its surroundings negate any appearance of government endorsement.”At the second fork, where the City went wrong, the Court nonetheless held that the use of “municipal funds, labor, and equipment for the nightly menorah lighting, even if the plaintiffs repaid the City for such labor and equipment, as required under the stipulation, would foster the perception of an unconstitutional excessive governmental entanglement with religion.” Citing Walz v. Tax Comm’n of City of New York, 397 U.S. 664 (1970); Citizens Concerned for Separation of Church & State v. City & County of Denver, 481 F. Supp. 522 (D. Colo. 1979), appeal dismissed, 628 F.2d 1289 (10th Cir. 1980), cert. denied, 452 US 963 (1981); cf.American Civil Liberties Union v. City of Birmingham, 791 F.2d 1561 (6th Cir.), cert. denied, 479 U.S. 939 (1986); Ritell v. Village of Briarcliff Manor, 466 F Supp. 2d 514 (S.D.N.Y. 2006); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 616 (1989).Mike Thelen is an associate in Womble Carlyle's Real Estate and Real Estate Litigation practice groups.