Christmas in November

by Christian Law Association

It’s Christmas in November! Why? Because now is the time to think about Christmas displays in your community for 2011. We want everyone to be aware that it is absolutely legal for the government to include a Nativity or other religious symbols of Christmas in a city holiday display that also includes secular items like snowmen, reindeer or Santa Claus. Where a city opens up a public forum area, like a park, for private displays, religious items must also be permitted. Where appropriate, a Menorah or other religious symbols may also be included.

CHRISTMAS MEMO

It is unfortunate that there is so much legal misinformation being spread about matters of religion and public life in America today. For the first 200 years of our history and even during colonial history for 200 years before that, this question was more generally understood by every American. It has only been in the past few decades that certain elements of our society have attempted to drive all religious expression entirely out of the public square. That was clearly not the intention of our Founders or of those countless immigrants who have since sought religious liberty in America. Even today, our Supreme Court does not require America’s public squares to be scrubbed clean of all religious symbols, particularly during a religious holiday that is officially recognized by the United States Congress as Christmas.

In general, government entities, which would include your city or town, are permitted to have Christmas displays that include a mix of both secular and religious items. The key legal principle that controls this area of law is the “Three Reindeer Rule,” articulated by Supreme Court Justice Sandra Day O’Connor to describe exactly what the Constitution requires of government entities during the Christmas season. Some lawyers jokingly restate this Rule as “Three Plastic Reindeer and the Baby Jesus.” Either way, it is a good rule for government entities to follow with regard to Christmas displays. It speaks of addition not subtraction, of accommodation not censorship, of more not less. Your city is not constitutionally required to censor anyone at Christmastime or to pretend that Christmas does not exist.

The city’s official holiday display may legally include a nativity, a menorah, a star or other religious symbols, as well as secular items such as Santa Claus, reindeer, trumpets snowmen, candles, etc. The more, the merrier! The ratio should be approximately three secular items for every one religious symbol. That ratio does not need to be exact, but it is a pretty simple guideline to follow to stay within the legal guidelines.

Historically, cities and towns across America have always celebrated the Christmas season by decorating their buildings and parks with symbols of the season, including religious symbols. In recent years, however, some groups have spread misconceptions about the legalities of such municipal or other governmental Christmas displays. Therefore, many municipalities and other government entities are now fearful about decorating their buildings and parks with symbols of the Christmas season, and particularly religious symbols. In most cases, these government officials are simply misinformed or under-informed about the legality of celebrating the Christmas season, including its religious origins. Despite increasingly widespread rumors by “legal Grinches” to the contrary, Christmas displays, including crèches, are not illegal or unconstitutional, even if they are included in official Christmas displays put up by the government itself and funded with government money.

When faced with the question of whether a particular Christmas display is constitutional, a court will first examine whether the display is being used to merely celebrate a holiday or whether the display is intended to promote a particular religion. The judge will then determine whether the display was privately placed in a public forum area, like a park, in which case a religious display could stand alone. If the court is considering a religious display placed by the government itself, the judge will determine whether a sufficient number of secular items were included in the display to render it constitutional. The Supreme Court permits the government to accommodate the desire of citizens to celebrate Christmas without violating the “separation of church and state.” A government entity could include a menorah as well as a crèche in its official holiday display to recognize more than one religion practiced by its citizens during this season; however, not every religion that exists must be recognized. Cities will want to be sensitive particularly to the major religions practiced by its residents.

Although Christmas has been recognized by the government unofficially in America for quite a long time, the Congress in Washington D.C. recognized Christmas as an official American holiday in 5 U.S.C.A. § 6103(a) (2004). The United States Supreme Court has acknowledged with approval our nation’s longstanding recognition of religiously significant holidays such as Christmas and Thanksgiving. If our courts were to require government entities to completely ignore Christmas because it is a religious as well as a secular holiday in America, government officials would be required to report for work as usual on December 25. That is not very likely to happen.

LEGAL OPINION MEMORANDUM: CHRISTMAS DISPLAYS
Question Presented

Is it constitutional for a private citizen or group to purchase and display a crèche on government-owned property during the Christmas season? What if the government itself actually sponsors the display?

Summary

The display by a private group or individual of a crèche on government-owned property during the Christmas season is fully constitutional since it does not imply government sponsorship of religion, but merely accommodates an important religious holiday celebrated by the vast majority of its citizens. If the government itself displays a crèche, it must be part of a larger display that also includes secular holiday items.

Legal Analysis

The issue of what religious objects may be displayed in public during the Christmas holidays depends upon whether the display is sponsored by the government itself or by a private group or individual; whether the display in is a public forum area, and what other objects are displayed.

Private speech, even with respect to religion, has full protection in public forum areas, such as streets and parks. Hague v. CIO, 307 U.S. 496, 515-16 (1939). A private group that wants to display a nativity scene on public property is merely seeking to exercise free speech rights in a public area; the group is not requesting that the government itself sponsor a religious display. This is the key legal element in determining the constitutionality of private displays of a manger scene or a menorah on government-owned property. If the government itself sponsors the display, that display must include a mix of both secular and sacred elements.

Two cases which demonstrate the difference between private speech and government sponsorship with regard to religious displays at Christmas are Lynch v. Donnelly, 465 U.S. 668 (1984), and County of Allegheny v. ACLU, 492 U.S. 573 (1989). The decisions in these cases demonstrate the legal principles controlling the various types of public and private displays. The Supreme Court said that even a government-sponsored display would be constitutional if it contained a mix of religious and secular items. Justice O’Connor articulated the “Three Reindeer Rule” which implies that if the crèche is placed among other secular objects, even a city-sponsored crèche is legally permissible. Justice O’Connor stated:

Although the religious and indeed sectarian significance of the crèche . . . is not neutralized by the setting, the overall holiday setting changes what viewers may fairly understand to be the purpose of the holiday – [just] as a typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content. The display celebrates a public holiday, and no one contends that declaration of that holiday is understood to be an endorsement of religion.

Id.at 692.

In the Lynch case, the religious item was included in a display sponsored by the city that also included a Santa Claus house, reindeer and Santa’s sleigh, candy cane poles, a Christmas tree, carolers, animals and colored lights. In the context of other objects representing the Christmas season the court held that the display, even with the crèche, was sufficiently secular.

In Allegheny, on the other hand, the menorah was a stand-alone display inside a government building. The Court said that in a situation where a religious object is standing alone, there might be an impression that the display is an official government endorsement of that particular religion. However, if the menorah or a crèche does not stand alone or if it is clearly stated that the display is sponsored by a private group in a public forum area, even that religious item standing alone would be entirely constitutional within the context of religious free speech law.

Conclusion

Our courts have upheld the constitutionality of a stand-alone private religious display in a public forum area. Our courts also permit religious items, such as a nativity, to be included in an official government-sponsored display if that display includes a mix of both secular and sacred representations of the Christmas season. There are legal groups that seek to ban religion entirely from the public square and to ban governments from including a crèche or other religious items in a seasonal Christmas display; however, these Grinch-like attempts to censor all religious expression and ruin Christmas for the vast majority of Americans have not been successful, no matter what anyone else tries to tell you.

©2011, Christian Law Association
By Web Admin on October 01, 2011 in Legal Alerts
Used by permission.
note: Article originally titled “Christmas in October”

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