Constitutionality of Government Commission's Use of Logo Including an Historical Cross in its Design ( 1986 )

Constitutionality of Government Commission’s
Use of Logo Including an Historical Cross in its Design
The Christopher Columbus Quincentenary Com mission’s use of a logo consisting o f the number
500 with a cross in one o f the zeros, and a star in the other, does not violate the Establishm ent
Clause of the First Amendment. The use of a cross with clear historical associations in the
design of a government com m ission's logo is compatible with the Supreme C ourt’s holding in
Lynch v. Donnelly, 465 U.S. 668 (1984). Furthermore, the Establishment Clause does not
require a p e r se rule against the inclusion o f religious symbolism in government emblems.
December 9, 1986
M em oram dun O p in io n for th e A s s is t a n t to th e C h a ir m a n ,
C h r is t o p h e r C o l u m b u s Q u in c e n t e n a r y J u b il e e C o m m is s io n
This responds to your request for our opinion whether use by your Commis­
sion of either of two logos would violate the Establishment Clause. Each logo
consists of the number 500 with a cross in one zero and a star in the other. The
only relevant difference between the two logos is the design of the cross. In
Design B, the cross is an exact replica of the one that appeared on “the flag of
the green cross,” which was presented to Columbus by Isabella of Castille and
which Columbus carried at the masthead of his ships and hoisted over the
island on which he landed on October 1 2 ,1492.1Design A depicts a somewhat
stylized version of the same cross, in red. For the reasons set forth below, we
believe that either of the two designs would be acceptable.
In Lynch v. Donnelly, 465 U.S. 668 (1984), the Supreme Court upheld
municipal display of a creche as part of a city’s Christmas observance. The
Court held that celebrating Christmas and depicting its origins were legitimate
secular purposes, see id. at 681, and that inclusion of the creche neither had the
primary effect of advancing religion nor resulted in excessive entanglement
between religion and government.2 In dicta, the Court also noted the wide
variety of “references to our religious heritage,” including the Pledge of Alle­
giance and the National Motto “In God we Trust.” Id. at 676. It concluded that
“[a]ny notion that these symbols pose a real danger of establishment of a state
church is farfetched indeed.”3
1You indicate that the original cross o f the green flag also displayed an F and a Y, for Fernando and Ysabel,
but that these are om itted from the design o f the logo.
2 Id. at 685. Justice O ’C onnor concurred, and analyzed the question som ew hat differently. For her, the
creche was perm issible because it was not intended to endorse religion and could not “fairly be understood to
convey a message o f governm ent endorsem ent.” Id. at 693 (O ’Connor, J.t concurring).
3 Id. at 686. Justice O ’C onnor also referred to the N ational M otto, as well as to governm ent proclam ation o f
Thanksgiving, and the phrase “G od save the U ni'ed States and this honorable court.” She said:
Those governm ent acknow ledgm ents o f religion serve, in the only w ays reasonably possible in
our culture, the legitim ate secular purpose o f solem nizing public occasions, expressing confi­
dence in the future, and encouraging the recognition o f what is worthy o f appreciation in society.
For that reason, and because o f their history and ubiquity, those practices are not understood as
conveying governm ent approval o f particular religious beliefs.
Id. at 693 (O ’Connor, J., concurring).
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In our view, use of an obviously historical cross in an historically commemo­
rative seal fits within both the holding and dicta of Lynch. The U.S. Court of
Appeals for the Tenth Circuit’s holding in Board o f County Commissioners of
Bernalillo County v. Friedman, 781 F.2d 111 (10th Cir. 1985) (en banc), cert,
denied, 476 U.S. 1169 (1986), is not to the contrary. There, the court struck
down a county seal containing a relatively large latin cross and the phrase “with
this we conquer.” In so doing, however, the court did not purport to establish a
per se rule against religious symbolism in public emblems.4 Quite the contrary,
the court struck down the Bernalillo County seal on the facts of that case.
The court observed that there was no record of when or why the seal was
adopted, or of what it was supposed to symbolize. However, the court found
“highly persuasive” evidence “that the seal leads the average observer to the
conclusion that the county government was ‘advertising’ the Catholic faith.”
781 F.2d at 781. Even so, the court stated that some uses of the seal, such as
“[u]se similar to a notary seal,” might still be constitutional. Id. However, the
county’s practice of using the seal “on all county paperwork, on all county
vehicles, even on county sheriffs uniforms” “pervaded the daily lives of
county residents,” and was thus unconstitutional. Id. at 782. The court distin­
guished Lynch on that basis, and also on the ground that the cross, unlike the
creche, lacked a secular context.
Bernalillo County is therefore distinguishable on its facts. In the instant case,
there will be a clear record of why the Commission chose to include a cross in
its logo and its historical relationship to Columbus’ voyage. Indeed, historical
commemoration is the very raison d ’etre of not only the logo, but of the
Commission itself. The cross will play only a small role in the commemoration
and could hardly be said to pervade the daily lives of citizens.
We therefore believe that inclusion of an obviously historical cross in the
Commission’s logo would not violate the Establishment Clause. The cross in
Design B is historical and, in our view, constitutional. The more stylized cross
in Design A is somewhat less obviously historical. A red cross is, of course, a
less direct reference to the flag of the green cross. Nevertheless, its basic design
is very nearly the same. Thus, we believe that either design would be permissible.
D o u g l a s W . K m ie c
Deputy Assistant Attorney General
Office o f Legal Counsel
4 Indeed, such a per se rule would be q u ite at odds with American history. As the C ourt noted in Lynch,
supra, th ere is a long tradition o f public u se o f religious sym bols. In fact, the Great Seal o f the U nited States
is itse lf a religious sym bol.
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