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.
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.
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).
HOW DOES THIS APPLY TO SEASONAL DISPLAYS?
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:
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;
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
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
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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.
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
The property is a public forum where the government has permitted a wide variety of expressive conduct
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.
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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