School Libraries in Peril

Guest blog by Shireen Campbell and Skylar McVicar

Fueled by legislative actions in multiple states, wholesale objections to school library books have risen dramatically in the past few months.  News stories document books covered with brown paper, empty shelves, and even proposals to defund entire state library systems.  If a book includes a queer character who dares to live happily or shows that policing practices may vary depending on one’s skin color, the book has likely landed on a list of objectionable materials.

Current and seemingly successful statewide legislative efforts to edit school library content mark an alarming escalation in attempts to control what reading children can access at the local school district level.  How are the censors making such headway when multiple court cases have established that school library collections are crucial to the unimpeded exercise of First Amendment rights?

As held by the Supreme Court majority in the landmark 1982 Board of Education, Island Trees Union Free School District No. 26 v. Pico, “the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.” School libraries are a crucial site for access to new ideas, and, as held in Minarcini v. Strongsville City School District (1976), for both dissemination and discussion of these ideas.

The right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom.

(Union Free V. Pico)

Given prior court decisions that upheld student First Amendment rights to receive information through school libraries, we question if the recent wave of legislative actions in pursuit of sanitizing collections is likely to be deemed unconstitutional.  One potential answer is to analyze what actions and opinions are common to school boards that previously attempted and failed to limit library content in four precedent-setting cases. In each case, the board’s actions impeded student recipient’s “right to receive” (Union Free V. Pico) by

  • Ignoring existing policy around objections to materials in a classroom or library context
  • Insisting that opinion, hearsay, and/or misinterpretation of literature or its pedagogic purposes outweigh any expert knowledge
  • Advocating a return to or defense of traditional “universal” values over cultural change

For example, in Minarcini, a 6th Circuit Court of Appeals case from 1976, a school board member complained about Heller’s WW2 classic Catch 22 and two Kurt Vonnegut novels. In response, the school board created a committee to review the books and met with a faculty and citizens committee, both of which argued for the inclusion of the books in the library.  However, the school board ignored the recommendations of the committees they created and removed the books anyway. 

Two decades later, in Case Vs. Unified School District (1995), the Missouri district had no policy for assessing book donations.  When the groundbreaking lesbian teen romance 1982’s Annie On My Mind, and another book were donated to high school libraries in the district, board members criticized the “homosexual” content. The school board then created a policy for book donations that included a review committee and asked them to examine the donated books.  Subsequently, the review committee cited favorable reviews of Garden’s novel and recommended its inclusion.

Yet, dismissing the expert knowledge and the media specialists they had consulted, the board voted to remove the donated novels because homosexuality was both “sinful in the eyes of God” and unconfirmed scientifically as “a normal or genetic way of life.”  Referencing case precedent (namely Union Free V. Pico), the U.S District Court found that the school district removed the novel because they disagreed with the ideas it contained and unconstitutionally sought to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

Threatened by societal change, board members in all four court cases repeatedly promoted a conservative agenda in their grounds for complaint. Many of the nine books involved in the 1982 Pico case have minority authors, and others have countercultural content, highlighting a range of American experiences. The board condemned these books because some “contained profanities, some were sexually explicit, and some were offensive to racial, religious or ethnic groups.” In so doing, the Board promoted a “conservative educational philosophy” and resistance to including underrepresented voices.

A more recent court case, Counts v. Cedarville School District (2003), focused on the global phenomenon of Harry Potter.  Board members objected to the series’ depiction of “disobedience and disrespect for authority,” behavior which occurs often in the world of young adult literature (and young adults) because they feared it would lead to “juvenile delinquency” or a Columbine.  As the Court notes in its decision, these “speculative apprehensions: were based on no facts.”

[None] of the three Board members was aware of any actual disobedience or disrespect that had flowed from a reading of the Harry Potter books. . . . Such speculative apprehensions of possible disturbance are not sufficient to justify the extreme sanction of restricting the free exercise of First Amendment rights in a public school library.

Counts  v. Cedarville School District

Presuming similar biases in an effort to limit access to books that question adult wisdom and a conservative status quo, current state actions would seem likely to meet the same fate in court.  In a subsequent post, we will explore the Parental Rights in Education legislation in Florida and consider to what extent this seems likely to falter in the face of case precedent in favor of the First Amendment in such settings.

About the Authors

Shireen Campbell is a professor of English and Educational Studies and Director of the First Year Writing Program at Davidson College.

Skylar McVicar is a senior Politics, Ethics, & Religion interdisciplinary major at Davidson College and will be attending Duke University School of Law in the fall.

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In this video, the First Amendment Museum hosts a discussion and debate on a proposal in the Maine Legislature (LD 123) that would make public schools subject to Maine’s anti-obscenity law and could ban schools from providing students with books and other educational materials considered obscene.

The bill was proposed by Sen. Jim Libby (R-Cumberland), who said his bill would protect children from inappropriate materials and provide a clear standard for what content would be allowed in schools.

Joining us for this debate is Nick Murray, Director of Policy with Maine Policy Institute, and Savannah Sessions, a school librarian and Legislative Chair for the Maine Library Association.

About the Presenters

Nick Murray

Nick Murray serves as Director of Policy with Maine Policy Institute, developing MPI’s policy research, analysis, and strategic advocacy priorities. He is the author of numerous articles and publications, such as the 50-State Emergency Powers Scorecard, Long-Term Growth vs. Short-Term Gimmicks: Maine’s Economy and Gov. Mills’ Second Biennial Budget, and the School Choice Map of Maine.

Savannah Sessions

Savannah has been a school librarian since 2015 and an educator since 2012. She has a passion for YA literature, information access and literacy, and library advocacy. Savannah works tirelessly to promote the notion that libraries are so much more than buildings full of books – they are community hubs. Outside of her professional life, Savannah has a great interest in historic preservation/conservation – especially of historic windows and gilded objects, good food, and mountain biking. She is the Legislative Chair for the Maine Library Association.

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Matal v. Tam encourages diversity controversially. As a teen, Simon Tam experienced racially motivated bullying due to his Chinese heritage. He learned to counter this bigotry through humor and the reappropriation of ethnic slurs. When he started his band as a bassist, Simon wanted to call it The Slants. However, when Tam attempted to trademark the band’s name, they ran into the 1946 Lanham Act, which, as the chief trademark law in the US, prohibited trademarks that “disparage” any person or group. As a result, the US Patent and Trademark Office denied Tam’s application for the name. Tam sued because this violated his First Amendment right to free speech. 

The case went to the US Supreme Court, with the court ruling in favor of Tam. The Court held that while the name is a bad word, the content doesn’t merit a restriction. In other words, we must tolerate “the thought that we hate.” Simon Tam’s case is a benefit to diversity in the public discourse. 

Simon Tam in front of the Supreme Court, courtesy of Simon Tam.

Tam’s case is controversial. Is a trademarked racial slur appropriate for the name of an organization? The Court says it may be, or at least it is permissible to be. But controversy is a welcome sight for diversity. Controversy brings dialogue and discussion on the merits of a particular action or enterprise. Dialogue is inherently diversity-improving. Talking and implementing feedback from one another is how we progress. But not everyone has the same perspective on an issue. We all have different experiences, even though the “what” or “how” of any experience may seem the same. Dialogue is how we understand these differences in sameness. 

Dialogue arises from the Tam case through the merits of the individual case itself and by imagining other cases. For example, imagine a band named the “Redskins” or the “Wet-backs.” I don’t like these names or words, I find them racist and deplorable, but that doesn’t mean what they invoke is out of the marketplace of ideas. In fact, it is because of what they invoke that may make them worthy of discussion. This naming practice is similar to shock-jocking on the radio. A controversial opinion or statement is made, and that gets people talking. When people talk about their experiences, they realize that not everyone shares the same experience. This action is the expansion of diversity through dialogue. And this is what these band names do. This is what Simon Tam and the Slants have accomplished. 

About the author

Steven Santiago is currently an intern at the First Amendment Museum and a 4th-year student at the University of Maine studying Psychology, Sociology, and Legal Studies. He is a community organizer on campus, working with students and organizations to increase their political agency in Maine. His current ambition is to achieve a Master’s in Social Work, where he can further develop his organizing skills.

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Guest blog by Jeffrey Cooper

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

United States Constitution, 1st Amendment

Our Founding Fathers lived in a time when religious wars and persecutions in Europe, and in England in particular, were recent history. To avoid that happening here, they declared emphatically that our new country would have no state religion.

I expect I speak for lots of Jewish Americans when I say that we are increasingly unsettled these days by the rise of Christian Nationalism and the inroads this is making into our national politics. Separation of Church and State is the fundamental principle that assures us that we are accepted fully as Americans. Yet I have read on Politico.com that a majority of Republicans would approve of Congress declaring us to be a Christian nation, knowing that such a move is in violation of the Constitution they claim to revere. In statehouses and school boards across the nation, laws and policies being introduced under the moniker of “religious liberty”’ seek to foist religious views upon what many consider a secular society – from attitudes toward gender non-conforming people to whitewashed views of history regarding racial injustice.

Jews are alarmed. Other dangerous baggage comes alongside this development, notably anti-Semitism, which many Christian Nationalists find justified in their sacred writings. Any wonder that anti-Semitic incidents are on the rise simultaneously with the rise of this movement? And it’s not just us. All minorities are imperiled.

Let’s look at an ongoing real-time issue. Everyone is talking about abortion these days, about the right to privacy, when life begins, and due process in the 14th Amendment. But for me, this is clearly a First Amendment issue. Since we have no scientific definition of what “life” actually is, we cannot have a scientific definition of when it begins. The assertion that life begins at conception is a purely religious construct and that of one particular religion. By adopting legislation stating that life begins at conception or a detectable heartbeat, the State is adopting the religious view of one particular religion and imposing that upon non-adherents. This is emphatically unconstitutional. I fail to understand why this is not the basis upon which abortion rights are argued. Some Supreme Court Justices call themselves “originalists.” The First Amendment provides an originalist argument. Prohibiting abortion is not the province of government, and that includes at the state level.

I don’t mean to present a singular “Jewish view on abortion” because on this topic, and every other topic under the sun, Jews have a wide diversity of opinions. Yet we are still family. Likewise, we as Americans have a wide diversity of religious affiliations and religious beliefs, yet we are still one nation. This is made possible by the First Amendment to the Constitution, and specifically, the first clause of it, which declares that we do not have a State religion and the government cannot adopt the precepts of any particular religion as that of all of us. We all are guaranteed the right to practice our own religious practices without government constraint. For me, this is where our “right to privacy” is enshrined in the Constitution. It is precious, and we must do everything in our power to protect it.

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Free Teacher Seminar Onsite at James Madison’s Montpelier for Maine Educators

Scholarships available for Maine teachers, giving them the opportunity to deepen First Amendment knowledge, train in Virginia, share back with Maine students and community 

(Augusta Me., January 6, 2023) — The First Amendment Museum is looking for Maine teachers to travel to James Madison’s Montpelier and attend teacher training seminars centered around the First Amendment. Full scholarships are currently available to teachers working in Maine. 

In 2022, the First Amendment Museum partnered with James Madison’s Montpelier in an Institute for Museum and Library Services, Museums for America grant to develop non-partisan programming that encourages a better understanding of the First Amendment. 

Over a three-year cycle, the two museums will develop programming that inspires and empowers Americans to become more active, better informed and engaged citizens. 

The grant funding enables the two institutions to:

  • facilitate four two-day training seminars in Virginia for 100 teachers nationwide, including at least eight teachers from Maine; 
  • develop and implement workshops for 250 Maine students that will help students connect civics with their local history; and
  • host community workshops in Maine that encourage participants to delve deeper into understanding how civic change occurred throughout their local history. 

Christian Cotz, chief executive officer of the First Amendment Museum since 2020, previously served as the director of visitor engagement at James Madison’s Montpelier. “As a past developer and participant in Montpelier’s onsite trainings, I know firsthand the level of excellence the staff brings to their work, as well as how meaningful participants find the experience,” Cotz said. “The collaboration between my talented colleagues here at the First Amendment Museum and the team at Montpelier will yield phenomenal results. My hope is that many of Maine’s social studies, history and civics teachers will take advantage of this exciting continuing education opportunity.” 

The first of the four teacher seminars is scheduled for March 31 – April 2, 2023, and is focused specifically on the First Amendment.  The three seminars that follow are set to happen between fall 2023 and early 2024.  

The program includes meals, lodging, travel reimbursement, textbooks and resources, and continuing education credits available through James Madison University. 

Teachers can apply at www.montpelier.org/events/seminar_firstamendmentschool. There is an $85 nonrefundable registration fee per seminar, which should be paid within 15 days of acceptance. 

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Perspectives on Holiday Displays and the First Amendment

‘Tis the season for First Amendment controversy. Every year it seems there is some form of public debate around religious holiday displays and how the First Amendment does or doesn’t protect them. You may have heard or even wondered about “the war on Christmas” and “why we can’t say ‘Merry Christmas’ anymore.”

The First Amendment guarantees the right to religious expression, protecting your right to pray, preach, worship, and celebrate your religion publicly or privately. Only when the government becomes entangled in a religious celebration are constitutional rights violated. So we asked three attorneys to clear the air by sharing their perspectives as well as a bit of history on the First Amendment and holiday displays. Read their articles below.

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Seasonal Displays: Religion and Reindeer

Guest blog by Herbert G. Grey

As the calendar turns over to December, when 97% of Americans celebrate Christmas in some manner, questions invariably arise about the propriety of seasonal displays in public spaces. Many focus on and celebrate the religious significance of Christmas. The thoughts of most turn to “the holidays.” Still others with a “separation of church and state” mindset prefer to sanitize public places from any vestige of religious expression, despite the religious origins of many “holidays.” The variety of these perspectives reveals why we have a First Amendment in the first place. First Amendment law upholding the propriety of seasonal displays on and around government property is fairly well-established. Whether people cherish Christmas or relish the sights and sounds of “the season,” they will find the United States Supreme Court is not a grinch. Those who favor a more strict-separationist, secular perspective under the Establishment Clause can find solace in knowing that seasonal religious expression generally must be accompanied by secular elements or have some underlying historical background or tradition.

The U.S. Steel Creche, December 29, 2006. CC BY-SA 2.5


Protection of Religious Speech. The Supreme Court has consistently said, “Our precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.” In a later Ten Commandments monument case, the Supreme Court affirmed that there is “no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.”

Text, History, and Tradition. It is no secret that religious expression has long been a feature of government proceedings and expression in public spaces. In Church of the Holy Trinity v. United States (1892), the Supreme Court recited dozens of historical examples of religious influence on American government. Most people are familiar with images of crosses at Arlington National Cemetery, cross-shaped war memorials, and Ten Commandment monuments in public places, most of which have been upheld. McCreary County v. ACLU (2005) disallowed a Ten Commandment monument because it had solely a religious purpose in being placed where it was on public property.

 “Legislative” prayers to open official proceedings at all levels of government have also been approved as “part of the fabric of our society.” More recently, in Town of Greece v. Galloway (2014), the Supreme Court upheld prayers to open city council meetings based on “tradition” as long as it “does not coerce participation by nonadherents.”

Whose Speech is It? The starting point is to consider whether seasonal displays are private speech or government speech. Since the First Amendment regulates only government restrictions on free exercise of religion or free speech, there is generally no problem with any federal, state, or local government allowing private expression in public places on the same basis as other private speech. At the same time, the Establishment Clause prohibits the federal government (and later state and local governments through the Fourteenth Amendment) from sponsoring or approving one religion- or lack of religion- over another. 

The Lemon Test. When the Establishment Clause may come into play, so does the infamous “Lemon test.” Lemon v. Kurtzman (1971) required proof of government action having a secular purpose, a primary effect that “neither advances nor inhibits religion” and not fostering “an excessive government entanglement with religion” to avoid Establishment Clause problems. The Lemon test has been the subject of criticism in the Supreme Court and elsewhere for some time, but it was recently put in the grave for good in Shurtleff v. City of Boston (2022) (the “Boston flagpole” case) and Kennedy v. Bremerton School District (2022).


Since most or all seasonal displays have historically been government-owned and operated, they are typically considered government speech, historically implicating government establishment of religion under the “Lemon test.”  Three cases illustrate how the law concerning seasonal displays has developed:

  1. Lynch v. Donnelly (1984) considered a government display that included a nativity scene, a Santa Claus house, reindeer, a Christmas tree, candy-cane poles, and a “Seasons Greetings” sign. Thus was born the famous “two reindeer” (or “three reindeer”) rule whereby government displays are not impermissibly advancing the Christian religion if they celebrate the “holiday season” by including other secular symbols; 
  2. County of Allegheny v. ACLU (1989) involved a long-time private nativity display owned by a private religious organization on the grand staircase in the county courthouse. The only other private expression given the same opportunity was a Jewish menorah accompanied by other secular symbols. The Supreme Court said that the nativity display violated the Establishment Clause because it featured Christian religious expression and nothing else, but the Jewish display did not violate the Establishment Clause because it included other secular symbols along with religious symbols; and
  3. Pleasant Grove v. Summum (2009) arose out of a display whereby a city government, over time, allowed multiple privately donated monuments in a public park. The City retained final authority over the displays and had the right to reject others because the existing displays were varied, some were of long-standing origin, and together the displays had religious, historical, and secular components. 

In an era when diverse views often divide, seasonal displays with religious content represent the essence of the First Amendment as it was intended, an enduring example of bringing people together in some semblance of unity and shared experience for everyone while acknowledging our differences. 

About the author

Herbert G. Grey is a lawyer in private practice in Beaverton, Oregon, with over 25 years of experience concerning First Amendment and religious liberty matters. He was admitted to the Oregon State Bar in 1981 and is also admitted to practice before the U.S. District Court for Oregon, the Ninth Circuit Court of Appeals and the United States Supreme Court. He is a member of the Board of Directors of Christian Legal Society and serves as chairperson of the committee overseeing CLS’ Center for Law & Religious Freedom.

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Santa is Welcome, but Be Careful About Religious Displays

Guest blog by Donald Scarinci

Santa Claus can always come to town during the holidays, but the religious symbols accompanying the holiday season are not always welcome. In most cases, the First Amendment does not play Scrooge to festive decorations. However, like many constitutional issues, court decisions have made the law a bit murky. 

While Christmas trees, colored lights, reindeer, and snowmen will always get the green light, there is no clear answer regarding religious displays, such as nativities and menorahs, on public property. However, based on existing precedent, a holiday display featuring symbols from different religions and secular symbols of the holidays is likely constitutional. 

Christmas display at the Osborne Family Spectacle of Dancing Lights at Disney’s Hollywood Studios, Orlando, Florida. 2015. Chad Sparkes.

The Establishment Clause

The First Amendment’s Establishment Clause governs most constitutional issues involving holiday displays. The Establishment Clause provides:

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

It is a common misconception that the Constitution requires a wall of separation between church and state. As the U.S. Supreme Court explains, the Establishment Clause does not “require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” 

In short, this means that municipalities and other public agencies can’t erect holiday displays favoring one religious sect over another or conveying an endorsement of religion altogether. However, government entities are allowed to incorporate religious symbols into holiday displays.

The National Menorah near the White House in Washington, D.C. Photo by Tim Brown

The Incorporation of Religion into Holiday Displays

The constitutionality of government-erected holiday displays depends on the circumstances, such as the display’s context and content. Some will pass muster, while others will not. 

Courts have acknowledged that while Christmas trees have their roots in Christianity, they are now largely considered secular. As explained by the Supreme Court, “Although Christmas trees once carried religious connotations, today they typify the secular celebration of Christmas…Numerous Americans place Christmas trees in their homes without subscribing to Christian religious beliefs, and when the city’s tree stands alone in front of the City-County Building, it is not considered an endorsement of Christian faith.”

As for decorations with clear ties to religion, such as a menorah or crèche, the Supreme Court has developed a few legal tests. For example, in Lynch v. Donnelly, 465 U.S. 668, 686 (1984), the Supreme Court upheld the constitutionality of a nativity display on government property because it was a part of a larger holiday display that included various secular symbols.

As the Court explained: 

It would be ironic . . . if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for 2 centuries, would so “taint” the city’s exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol—the crèche—at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and legislatures open sessions with prayers by paid chaplains, would be a stilted overreaction contrary to our history and to our holdings. 

The Supreme Court’s subsequent decision in Allegheny v. ACLU, 492 U.S. 573 (1989), demonstrates how much context matters, as it reached separate conclusions on two challenged holiday displays. First, the Court ruled that a crèche inside a Pennsylvania courthouse, which also featured the words “Glory to God for the birth of Jesus Christ,” had the “unconstitutional effect of conveying a government endorsement of Christianity.” 

In reaching its decision, the Court relied on the “endorsement” test advocated by Justice Sandra Day O’Connor in her concurrence in Lynch, under which government endorsement or disapproval of religion is unconstitutional. “No viewer could reasonably think that it occupies this location without the support and approval of the government,” the Court wrote. “Thus, by permitting the ‘display of the crèche in this particular setting,’ the county sends an unmistakable message that supports and promotes the Christian praise to God that is the creche’s religious message.” 

However, the Court further held that not all religious displays run afoul of the Establishment Clause, emphasizing that each display must be evaluated as a whole. For example, with regard to a second display featuring a menorah, the justices held that the addition of Christmas trees and other secular holiday decorations rendered it constitutional. According to the Court, the “city’s overall display must be understood as conveying the city’s secular recognition of different traditions for celebrating the winter-holiday season.” 

Lower courts have reached similar conclusions. In ACLU v. Schundler168 F.3d 92 (3d Cir. 1999), the Third Circuit Court of Appeals considered the constitutionality of two Jersey City holiday displays. The first, which featured a menorah and a Christmas tree, was forbidden. A modified display, however, did pass muster. It contained not only a crèche, a menorah, and a Christmas tree but also large plastic figures of Santa Claus and Frosty the Snowman, a red sled, Kwanzaa symbols on the tree, and signs stating that the display was one of a series of displays put up by the City throughout the year to celebrate its residents’ cultural and ethnic diversity. According to the Third Circuit, the modified display was “indistinguishable in any constitutionally significant respect” from the displays upheld by the Supreme Court in Lynch and Allegheny.

Key Takeaway

Not surprisingly, questions about the constitutionality of holiday displays arise every year. Complaints from the public (and the occasional lawsuit) are also not uncommon. While the Supreme Court has not established a bright-line rule, its decisions confirm that displays that exclusively or prominently display religious symbols will likely run afoul of the First Amendment. On the other hand, an eclectic mix of holiday favorites like reindeer and Christmas trees, along with religious items, is generally a winning combination of holiday cheer. 

About the author

Donald Scarinci is the Founding Partner of Scarinci Hollenbeck. He writes and lectures extensively about Constitutional Law and edits the award-winning, The Constitutional Law Reporter. His practice focuses on representing public institutions and businesses that interact with government.

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The First Amendment and Christmas Displays

Guest blog by the Christian Law Association

Religious liberty is an important part of the heritage of the United States of America.

A Puritan rebuking children for picking holly during the holiday season. Hulton Archive/Getty Images

The British settlers in the thirteen original colonies remembered how the official religion of England had sometimes drastically changed after the coronation of a new monarch and how those who refused to comply with the new official church were jailed—and even martyred—for practicing their faith. As the Bill of Rights was written, lawmakers were careful to ensure that the government would not be able to force the citizens to be members of a state-controlled church, and religious liberty became part of the fabric of America.

Just as the story of America is complex and multi-faceted, Christmas, as we now know it, is a combination of many traditions. Christmas is so ancient that we will never know how its many customs were derived. For example, the Christmas tree became popular in England and America after Queen Victoria’s husband, Prince Albert, introduced the Paradise Tree to the palace— a common custom in his homeland of Germany. Other people note that evergreen trees were used in the ancient celebrations of the winter solstice. 

Illustration of Queen Victoria and Prince Albert and their children gathered around their Christmas tree.

Getty Images

During the Christmas season, Christians focus on the birth of Christ. Others downplay the birth of Christ and focus on exchanging gifts and the friendly face of Santa Claus. The combination of all these items has created unique legal questions. For example, “If Christmas is a Christian holiday, can nativity scenes be displayed in town centers, or do such displays mean the government is officially supporting one religion over another?”

Christmas at Your Home or Business

Private citizens are allowed to celebrate Christmas’s religious aspects in their homes and businesses. No laws or court cases forbid citizens from celebrating a Christ-centered Christmas at home.

In Public Forums

Religious Christmas displays are perfectly legal if a public space has been made available to everyone. For example, if a city or village decides to allow Christmas displays in the community park, Christian displays must be allowed, just as secular displays must be allowed. The government cannot include one group as it excludes another.

In the case Grace C. Osediacz v. City of Cranston (2005), the court ruled that the city of Cranston, Rhode Island, had not violated the First Amendment by allowing both secular and religious Christmas displays on government-owned land that had been opened as a public forum.

In Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995), the United States Supreme Court clearly ruled in favor of allowing religious displays in public forums.

The court held:

Respondents’ religious display in Capitol Square was private expression. Our precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression. Indeed, in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince. (Id. At 760 [internal citations omitted]).

This case makes clear that private citizens, indeed, are allowed to erect religious displays on public property if

  1. The property is a public forum where the government has permitted a wide variety of expressive conduct
  2. And there is a disclaimer sign to inform the public that the display is sponsored by a private citizen and is not being endorsed by the government.
Christmas Displays in Government Buildings

In the case of lynch v. Donnelly, 465 U.S. 668 (1984), the United States Supreme Court ruled that religious displays may indeed be part of Christmas displays on government property. However, these Christmas displays need to include both sacred and secular elements. This case created a legal idea sometimes humorously referred to as “The Three Reindeer Rule.” If there is a Christian manger scene, there might also need to be three reindeer from Santa’s Village. If there is a statue of Baby Jesus, there might also need to be a statue of Jolly Old St. Nick.

Knowing the Law

Many citizens do not realize that the Supreme Court has held that Christmas displays—even on government property—need to include a variety of Christmas themes. Still, the religious themes of Christmas have not been expelled from the public square. In some cases, citizens may need guidance from experienced attorneys who can help them navigate the complexity of these issues. However, Christians in the United States still enjoy the freedoms of the First Amendment.

Merry Christmas!

About the author

Since 1969, the Christian Law Association (CLA) has been providing free legal assistance to Bible-believing churches and Christians who are experiencing difficulty in practicing their religious faith because of governmental regulation, intrusion, or prohibition in one form or another.

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Arts & Krimes by Krimes Screening

December 15, 2022 @ 7:00 pm 9:00 pm

Join us for a virtual screening of the award-winning documentary Arts & Krimes by Krimes. While locked-up for six years in federal prison, artist Jesse Krimes secretly creates monumental works of art—including an astonishing 40-foot mural made with prison bed sheets, hair gel, and newspaper. He smuggles out each panel piece-by-piece with the help of fellow artists, only seeing the mural in totality upon coming home. As Jesse’s work captures the art world’s attention, he struggles to adjust to life outside, living with the threat that any misstep will trigger a life sentence.

Art & Krimes by Krimes is directed by Alysa Nahmias, produced by Amanda Spain, Benjamin Murray, and Alysa Nahmias, executive produced by Sheila Nevins, Jenifer Westphal, Joe Plummer, Patty Quillin, Hallee Adelman & Ivy Herman, and co-executive produced by Nion McEvoy & Leslie Berriman, Ruth Ann Harnisch, and Sheri Sobrato-Brisson.

Watch the trailer

About Frank Blazquez

Frank Blazquez is a visual artist working in portraiture, documentary film, and mixed-media. With multiple essays published in The Guardian, he is also a writer. Blazquez focuses on counter-narratives across the American Southwest and tropes related to Latinx culture along the US-Mexico border. The creator demonstrates his experiences connected to urgency and rehabilitation. The Smithsonian National Portrait Gallery is currently exhibiting Blazquez’s portraiture and his artwork was recently displayed in State of the Art 2020: an exhibit at Crystal Bridges Museum of American Art.