Protecting the constitutional principle of the separation of state and church
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Vol. 11 No. 5 - Published by the Freedom From Religion Foundation, Inc. -
June/July 1994

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Dissenting Opinion

"Waunakee Pays Homage To One Religious Faith"

Patricia Smith King, and Joseph J. King, Jr., Plaintiffs-Appellants-Petitioners
v.
Village of Waunakee, a Wisconsin Municipal Corporation, Maureen O'Malley, Jeff Murphy, Dennis Sweno, Patrick Gile, Patrick Strickland, Paul Holmes, and Suzanne Matiash, Defendants-Respondents.

By Chief Justice Heffernan (dissenting)

From November 29, 1990, to January 3, 1991, the village of Waunakee displayed a seven by seven and one-half foot creche in a city park, near lighted evergreen trees and a sign saluting liberty. The creche is a religious symbol portraying an event central to the Christian faith. By displaying the creche in these circumstances, the village of Waunakee pays homage to one religious faith, thereby expressing a preference for that faith. This action is in violation of article I, section 18 of the Wisconsin Constitution, which states, "[N]or shall . . . any preference be given by law to any religious establishments or modes of worship." Because the majority concludes otherwise, I dissent. Because I have determined that the display is in violation of the Wisconsin Constitution, I do not discuss whether the display also violates the United States Constitution.

This court has long concluded that article I, section 18 of the Wisconsin Constitution provides greater protection of religious liberty than do the religion clauses in the First Amendment to the United States Constitution. See State ex rel. Reynolds v. Nusbaum, 17 Wis. 2d 148, 115 N.W.2d 761 (1962); State ex rel. Warren v. Reuter, 44 Wis. 2d 201, 227, 170 N.W.2d 790 (1969). See also State v. Doe, 78 Wis. 2d 161, 171, 254 N.W.2d 210 (1977), which states that "it is the prerogative of the State of Wisconsin to afford greater protection to the liberties of persons within its boundaries under the Wisconsin Constitution than is mandated by the United States Supreme Court under the Fourteenth Amendment."

Adopting the analysis set forth by the court of appeals, the majority states that the United States Supreme Court cases interpreting the Establishment Clause are to be used to interpret article 1, section 18. By this statement, the court decides that the protection provided by article 1, section 18 is no greater than that provided by the Establishment and Free Exercise Clauses. For support, the court of appeals discussion, which the majority adopts, quotes State ex rel. Warren v. Nusbaum, 55 Wis. 2d 316, 332, 198 N.W.2d 650 (1972). Therein, this court stated, "While [the] words used may differ, both the federal and state constitutional provisions relating to freedom of religion are intended and operate to serve the same dual purpose of prohibiting the 'establishment' of religion and protecting the 'free exercise' of religion."

The majority misinterprets Warren v. Nusbaum. The language quoted above does not support the conclusion that cases interpreting the Establishment Clause of the United States Constitution deŽne the extent of protection under the Wisconsin Constitution. Even assuming the general purposes of the United States and Wisconsin Constitutions are identical, the Wisconsin Constitution contains language indicating that the means used to achieve the purposes are different. Article I, section 18 is more prohibitive than the First Amendment of the United States Constitution. State ex rel. Warren v. Reuter, 44 Wis. 2d at 227. Furthermore, in State ex rel. Warren v. Nusbaum, this court had already determined that the challenged state action violated the United States Constitution before it considered the Wisconsin Constitution. Thus the discussion, that the two constitutions have similar purposes, was nothing more than an alternative way of stating that the Wisconsin Constitution cannot be interpreted to provide a lesser degree of protection than does the United States Constitution.

In two cases decided after State ex rel. Warren v. Nusbaum, the court cites the "dual purpose" language and then applies United States Supreme Court cases to interpret the Wisconsin Constitution. See State ex rel. Wisconsin Health Facilities Authority v. Lindner, 91 Wis. 2d 145, 163-64, 280 N.W.2d 773 (1979); State ex rel. Holt v. Thompson, 66 Wis. 2d 659, 675-78, 225 N.W.2d 678 (1975). These cases do not stand for the proposition that the Wisconsin Constitution should always be interpreted by looking solely to cases interpreting the United States Constitution. Both decisions acknowledge that the Wisconsin Constitution contains more speciŽc language. Furthermore, in recognition of the differing language, the court in Holt brießy considers each clause of article I, section 18. Even in the present case, the majority discusses each clause of article I, section 18, although the discussion contains no analysis and is merely conclusory.

We would have to ignore the plain language of the constitutional provisions to conclude that the protection accorded under article I, section 18 is exactly the same as that provided by the First Amendment to the United States Constitution. The language of these two provisions is very different. Article I, section 18, provides:

"The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury for the beneŽt of religious societies, or religious or theological seminaries."

In contrast, the religion clauses in the First Amendment to the United States Constitution provide:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ."

The language of these two provisions differs greatly. We violate our oath to support the constitution of Wisconsin if we conclude that the protections provided by these two provisions are identical. Existing case law does not require us to interpret the two provisions in an identical fashion. Therefore, I consider whether the village of Waunakee's display violates article I, section 18 of the Wisconsin Constitution.

I begin by considering whether the village of Waunakee shows a preference for the Christian faith by exhibiting the creche display in the present case, contrary to the portion of article 1, section 18 stating, "[N]or shall . . . any preference by given by law to any religious establishments or modes of worship." I Žrst look to the nature of the symbol that the government of the village of Waunakee displays. It cannot be disputed that the creche is a religious symbol portraying an event central to the Christian faith. Christians believe that God sent his son, Jesus Christ, into the world to be the Savior. The annual celebration of Christ's birth is one of the holiest days of the year for Christians. Christians believe that Mary gave birth to Jesus Christ in a stable in Bethlehem. The creche is a symbol of Christ's birth and has no secular connotations. Indeed, any suggestion that the creche is secular in nature denigrates both the religious symbol and the Christian faith. Because it represents an event central to their faith, the creche is a symbol that Christians understandably revere.

The Waunakee creche is a traditional representation of the stable at Bethlehem and contains Žgures of the baby Jesus, Mary and Joseph. Figures of the shepherds and Magi are located near the stable in an attitude of worship. Atop a nearby ßagpole is a Žve-pointed star, a symbol of the star of Bethlehem.

For purposes of the No Preference Clause of the Wisconsin Constitution, the signiŽcance of the creche as a religious symbol is the precise problem. The Waunakee city government is not displaying representations of the commercial aspects of the Christmas season, such as Santa Claus with his sleigh and reindeer. The city government is not exhibiting Christian symbols in a museum to explain the religious heritage of a portion of Waunakee's citizens. By displaying a seven by seven and one-half foot creche in a city park, the village of Waunakee is paying tribute to the religious aspect of Christmas and honoring the Christian faith. The residents of the village of Waunakee who worship God in religions other than Christianity, as well as residents who do not believe in God, are placed in the position of outsiders when the government pays homage to Christian symbols. Such action is an expression of preference for one religion and violates the No Preference Clause of the Wisconsin Constitution.

The three lighted evergreens near the creche do not change this display to one that is secular in nature. Even if the lighted evergreens are seen as representations of the secular aspect of Christmas, they are a secular image of the religious holiday that Waunakee honors by displaying a creche. The addition of lighted trees does not turn the display into an exhibit informing visitors of the secular and religious content of a holiday recognized in the area. The lighted trees, each over twenty feet in height, likely draw additional attention to the village government's display of a religious symbol. The trees do not nullify the message that the village is choosing to honor Christian beliefs.

The "salute to liberty" sign added by the city government also fails to negate the preference for Christianity expressed through the creche display.3 Rather, the reverse is true--a large display of an important religious symbol, near lighted trees that are at most secular representations of the same religious holiday, negates the expressed statement that the city government is saluting liberty. It seems to me that if the city government really wished to "remind us that we are the keepers of the ßame of liberty and the legacy of freedom," they would not limit the display to one religion's symbols. The Waunakee display does not send a message that we live in a pluralistic society in which each individual is free to choose his or her religious beliefs or nonbelief. Viewed as a whole, the display set out by the Waunakee city government celebrates only the liberty to practice the Christian faith.

I also conclude that the display violates the portion of article I, section 18 which states "nor shall any money be drawn from the treasury for the beneŽt of religious societies . . ." The display was donated to the village of Waunakee. Nonetheless, the city must expend funds to put up and take down the display, and to store the display. Although the expenditure is not large, the clause prohibiting the drawing of money does not contain a de minimis exception. Guarantees of religious liberty should not be subject to de minimis legalistic reasoning.

When interpreting the provisions of the Wisconsin Constitution, this court also should consider the intent of the framers and the historical context in which the constitution was created. The record of the 1847 constitutional convention contains very little discussion of article I, section 18, and no discussion of the preference and funding clauses. See, 4 Constitutional Series: The Attainment of Statehood 228, 312, 334, 713-15 (Milo M. Quaife ed. 1928).

However, an early decision of this court, State ex rel. Weiss v. District Bd. of School Dist. No. Eight of Edgerton, 76 Wis. 177, 44 N.W. 967 (1890), sets forth an explanation of conditions existing at the time the framers wrote the Wisconsin constitution. The Weiss court states these conditions may have inßuenced inclusion of the article X, section 3 prohibition on sectarian instruction in public schools. I conclude that an understanding of these historical conditions is relevant any time this court interprets portions of the Wisconsin Constitution governing religious liberties. Discussing immigrants to Wisconsin, the court states:

"The immigrants came from nearly all the countries of Europe, but most largely from Germany and Ireland. As a class, they were industrious, intelligent, honest, and thrifty--just the material for the development of a new state. . . . They were also religious and sectarian. Among them were Catholics, Jews, and adherents of many Protestant sects. These immigrants were cordially welcomed, and it is manifest the convention framed the constitution with reference to attracting them to Wisconsin. Many, perhaps most, of these immigrants came from countries in which a state religion was maintained and enforced, while some of them were non-conformists and had suffered under the disabilities resulting from their rejection of the established religion. What more tempting inducement to cast their lot with us could have been held out to them than the assurance that, in addition to the guaranties of the right of conscience and of worship in their own way, the free district schools in which their children were to be . . . educated, were absolute common ground, where . . . sectarian instruction, and with it sectarian intolerance, under which they had smarted in the old country, could never enter? Such were the circumstances surrounding the convention which framed the constitution. In the light of them, and with a lively appreciation by its members of the horrors of sectarian intolerance and the priceless value of perfect religious and sectarian freedom and equality, is it unreasonable to say that sectarian instruction was thus excluded, to the end that the child of the Jew, or Catholic, or Unitarian, or Universalist, or Quaker should not be compelled to listen to the stated reading of passages of scripture which are accepted by others as giving the lie to the religious faith and belief of their parents and themselves?" Weiss, 76 Wis. at 197-198.

This history indicates that the framers wrote the Wisconsin constitution with an eye toward attracting settlers to Wisconsin by ensuring that the government would not dictate the form or content of religious practices. I believe we must interpret article I, section 18 in accord with the framer's intent of maximizing religious liberty and freedom of religious choice. The conclusion that the village of Waunakee's display violates the No Preference Clause of the Wisconsin Constitution best furthers this intent.

Weissteaches another important lesson. In Weiss, Roman Catholics with children attending the Edgerton public schools challenged the practice of Bible reading in the school. In their petition, the parents stated that teachers were reading a version of the Bible, the King James version, that Catholics believed to be an incorrect translation. Weiss, 76 Wis. at 180. Further, the Catholic parents stated that the Catholic church teaches that the Bible should not be read indiscriminately, but should be explained by teachers and interpreters authorized by the Catholic church. Id. This court held that the practice of Bible reading in public schools violates article X, section 3 of the Wisconsin Constitution, which prohibits "sectarian instruction" in the public schools. Id. at 199.

Weissteaches the important lesson that government preference for a certain religion may violate the religious liberty of members of certain denominations within Christianity, the majority religion in Wisconsin, as well as the religious liberty of members of faiths in the minority in Wisconsin. The problem with the Waunakee government's action is not that the government is setting forth a Christian symbol, but that the government is granting a preferred status to one religion rather than maintaining a neutral stance toward all. The religious freedom of all citizens is threatened when the government expresses a preference for any one religious practice. While the Waunakee display sets forth a Christian symbol, the majority's decision will allow Wisconsin governmental bodies to display symbols inconsistent with, and even hostile to, Christianity.

The interpretation of article I, section 18, of the Wisconsin Constitution set forth in this dissent is entirely consistent with every person's right, guaranteed by that same provision, "to worship Almighty God according to the dictates of conscience." Under the Wisconsin Constitution, the citizens of Waunakee have a constitutional right to display creches outside or inside their homes. They also have the right to display the Star of David and other religious symbols. The right to follow one's own chosen method of worshipping God is enhanced, not diminished, by a decision that the Waunakee government must not express a preference for the symbols of any one religion.

For the reasons set forth above, I dissent.

I am authorized to state that Justice Shirley S. Abrahamson joins this dissenting opinion.

Filed June 22, 1994



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