Christmas in October

It’s Christmas in October!  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.

First Christmas Win of the Year

The Christian Law Association has already been successful this year in helping one community defeat threats made by the ACLU against the city council, warning them not to include a Nativity in this year’s annual Christmas display, as was done last year.  The city council president contacted our office in September after receiving a letter from the ACLU stating that the town’s Christmas exhibit was unconstitutional because it included a crèche along with other secular items.  The council president, a Christian, was not sure there would be enough votes on the council to stand up against the ACLU’s threats, but she asked if CLA would send an attorney to the meeting where ACLU officials were planning to attend and speak directly to the council.

The City Council Meeting

Our attorneys were happy to help.  We drafted a Legal Opinion Memo for the council (which is included for you in this Legal Alert newsletter).  We also sent one of our attorneys to the meeting. Before the meeting started, each city council member, the city attorney and the ACLU attorneys, were given copies of our Legal Opinion Memo.  When the time came to address the council, our attorney was limited to a 5 minute verbal presentation.  He made the best use of his time by outlining the United States Supreme Court’s legal decision allowing a city government to sponsor a Christmas display that includes religious symbols as well as secular items.  He explained the “Three Reindeer Rule” included in our Legal Opinion Memo, and urged the city council to stand firm and keep the crèche as a part of the city’s Christmas display.

It was then the ACLU’s turn to speak.   They had brought several people and, therefore, were given a total of thirty minutes to speak.  They all argued (amazingly, with straight faces) that they were there to protect the liberties of all people in the community. They emphasized they had no problem with private home displays of religious symbols but made the (incorrect) assertion that displaying religious symbols in any government-sponsored setting is unconstitutional.  The ACLU tactic focused on how much they care about freedom in America, and that they were the good guys who only wanted to shield citizens from any undue interference by their government.  They argued that having religious symbols in a government holiday display violates the Establishment Clause of the Constitution (the alleged complete “separation of church and state”) which they repeatedly misconstrued and misstated.

God Intervenes

After all the presentations were completed, and the council was preparing to vote on the matter, a miracle occurred that wiped out everything the ACLU speakers had just argued.  Yet another ACLU board member asked for permission to speak.  The council president reminded him that he had failed to sign up as a speaker, but then graciously gave him two minutes to speak anyway.

At that point, our CLA attorney was ready to object since the ACLU had already had plenty of time to make its case.  But the Lord prompted him to hold his tongue and allow the additional ACLU gentleman to speak.  The gentleman began by stating that he had been a Constitutional Law professor and it was his opinion the display, including the Nativity, used by the city the previous year met the Supreme Court’s constitutional standard and did not need to be altered in any way.  Nevertheless, he went on to argue that the council should still vote against using the display this year.

Our CLA attorney could hardly believe his own ears.  This ex-professor was actually contradicting everything the previous ACLU speakers had said, and he was agreeing that CLA had properly presented the law. And, he did all this in less than two minutes! But then he did even more.  He went on to reassure the council that they would not need the free legal services of the Christian Law Association or anyone else because the ACLU would not sue them if the display remained the same as it had been the year before.

Our attorney was contemplating what had just happened.  Was this statement inadvertent?  Did this ACLU board member think being conciliatory might cause the council to vote against the Christmas display this year even though it was legal?  Did this guy even know what he had just said?  Or had the Lord been controlling his tongue?

After some additional discussion, the city council voted 4-1 to put up the same Christmas display this year using the same materials, including the crèche, that been stored away from last year.  The council also stated the city would accept donations of other secular items to add to the display if anyone wanted to contribute them.  Needless to say, the council president was very pleased by this outcome, as were we.

Thanks to Our CLA Team

In summary, this win was a team effort by CLA’s attorneys. But our CLA supporters and friends were also an important part of this team.  CLA supporters who pray for our cases and provide financial support are also invaluable members of our CLA team.  We thank all of you who consistently help us to help others in this way.  And most of all, we thank God for so clearly blessing these efforts.

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.