It is a fundamental principle of Establishment Clause jurisprudence that government is prohibited from advancing, promoting or endorsing religion. The government cannot prefer one religion over another or prefer religion over non-religion. Therefore, it is easy to see how members of the public are confused when they see a government-sponsored crèche or menorah in front of city hall or located on the grounds of some other public property. Generally, the government is allowed to celebrate the holidays with secular decorations, such as lights and depictions of Santa Claus, and in narrow circumstances, a crèche or other patently religious symbols. The two relevant Supreme Court decisions, Lynch v. Donnelly, and Allegheny v. ACLU, were decided after a fact-sensitive analysis. Indeed the Court continually stresses that the constitutionality of such displays are determined on a case-by-case basis. These decisions are discussed in further detail below.
Therefore, determining whether a crèche or menorah displayed on public property in your hometown violates the Supreme Court's current interpretation of the Establishment Clause is highly dependent upon the facts and circumstances surrounding the display. While it is permissible for governments to celebrate the holiday season, there are certain limitations on holiday displays on public property. If you are concerned that your local, state, or federal government body is violating the constitutional principle of separation of church and state in the context of public religious displays, look for the following indications:
1. Is the display on government-owned property?
2. Is the scene or symbol located inside or at the entrance of a core government building, such as a city hall or courthouse? The Supreme Court has ruled that the government may not display nativity scenes at the entrance to core government buildings (see legal summary below), even if a Christmas tree and menorah are nearby.
3. If located on the lawn in front of a government building, is it in a “high traffic area” i.e., a busy street or intersection, or in front of a main entrance to public land?
4. Is the crèche or religious symbol the only symbol displayed, or the predominant feature of the display?
5. What is the proximity of the religious symbol to any other parts of the display? If the religious symbol is standing alone and other figurines, lights or signs that are part of the overall display are not located nearby, or are not within view of the crèche, it is arguably a sole display.
6. Do any signs surrounding the nativity scene contain patently religious messages such as “Gloria in Excelsis Deo”?
7. Is the manger scene or other religious symbol on public property as part of an announced “public forum”? If the display is sponsored by a private individual or entity, is there a disclaimer identifying the owner, or a sign properly alerting the public that the government does not endorse the religious message embodied in the display? Is there a written policy and a permit process for the public forum that is content-neutral? Are there reasonable time and place restrictions? (In other words, allowing a group to put up a religious Christmas display that lasts from before Thanksgiving until Easter is a problem-and that has happened!)
If, after assessing these guidelines and reading the summary of the two Supreme Court cases below, you think that your municipality or state is violating the existing law, you may request that FFRF assist you in complaining to the appropriate authority. Please provide as much detail as possible concerning the display (since time is usually of the essence), including photographs, identification of public park or name of building, city and state, how long the display stays up and any relevant documents, news reports, background, etc.
NOTE: The 1973 Lynch decision described below unfortunately has encouraged some public officials to dress up seasonal violations as secular. In many instances, a city or county may have erected a nativity scene as its sole display on a courthouse lawn for 30 or 40 years or more. Post-Lynch, after a complaint is filed, the government body may respond simply by adding a little tinsel, a few reindeer or candy cane figures near a large nativity scene, and claim it is now part of an overall “secular” display. Sham remedies by government have in some instances been upheld by lower courts, making it more difficult to remove nativity scenes from public property altogether.
The good news is that the Foundation and members of the public have been successful in persuading governmental entities to remove manger scenes from public property, in the interests of avoiding any appearance of favoring Christianity over other religions. It can be pointed out that there are ample tax-free church grounds where worship symbols may be appropriately displayed, and that private citizens are free to erect such displays on their lawns. While the Supreme Court precedent is confusing and sends mixed messages, certainly there is no court decision requiring that government entities must put up manger scenes! Secularists have also had some success in requesting the right to place their own displays next to manger scenes on public property. Depending on the circumstances, if a public body permits a group to erect a manger scene on its property, it thereby creates a public forum and must open the area up to other displays. The resulting clutter and divisiveness has persuaded some religious bodies to avoid the “public forum” route by barring all such displays.
State of the Law on Holiday Displays
There are two principal Supreme Court decisions concerning the display of religious symbols as holiday displays on public grounds. The Court in both cases has stated that determining the constitutionality of such displays involves a fact intensive examination. “Each government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion.” Lynch v. Donnelly, 465 U.S. 668, 695 (1984)(O'Connor, J. concurring). Generally, courts will look at the particular physical setting of the holiday displays and evaluate the message the government practice communicates. If the display's context viewed by a reasonable observer tends to send the message that the government endorses religion, then the display violates the Establishment Clause.
Lynch v. Donnelly, 465 U.S. 668 (1984):
In Lynch v. Donnelly, the U.S. Supreme Court considered whether the inclusion of a crèche in a municipality's Christmas display was a violation of the Establishment Clause. This case involved the city of Pawtucket, Rhode Island, which owned a crèche and included it as part of an overall, elaborate Christmas display on the grounds of a park owned by a non-profit. The city's display included a depiction of Santa, reindeer, a Christmas tree, carolers, cut out figurines, and candy-stripes poles, in addition to the nativity scene.
In a 5-4 ruling which has spawned much discord, the Supreme Court held Pawtucket's annual Christmas display did not violate the Establishment Clause. The Court found that the display passed constitutional muster under the Lemon test. The Court reasoned, “the display is sponsored by the City to celebrate the Holiday and to depict the origins of the Holiday.” 465 U.S. at 681. The Court determined these to be legitimate secular purposes. The Court also determined the crèche included in the overall display did not impermissibly advance religion. “. . .[D]isplay of the crèche is no more an advancement or endorsement of religion than the Congressional and Executive recognition of the origins of the Holiday itself as 'Christ's Mass,' or the exhibition of literally hundreds of religious paintings in governmentally supported museums.” Id. at 683. Finally, the majority of the Court found no excessive government entanglement with religion because of minimal costs associated with the assembly and dismantling of the crèche each year. The Court further stated that “[T]here is no evidence of contact with church authorities concerning the content or design of the exhibit prior to or since Pawtucket's purchase of the crèche. No expenditures for maintenance of the crèche have been necessary. . .” Id. at 684.
Notably, Justice O'Connor wrote a concurring opinion, in which she discussed the “endorsement test.” Government endorsement or disapproval of religion is unconstitutional. She stated, “[e]ndorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Id. at 688.
Justice Brennan wrote the dissent, joined by Justices Marshall, Blackmun and Stevens. He rejected the majority's conclusion that the city's display passed the Lemon test. He stated, “[n]othing in the history of such practices or the setting in which the City's crèche is presented obscures or diminishes the plain fact that Pawtucket's action amounts to an impermissible governmental endorsement of a particular faith.” Id. at 695. He argued the display had no purpose other than to 'Keep Christ in Christmas,' and had the effect of publicly recognizing the beliefs embodied in the crèche. He continued, “[i]n the absence of any other religious symbols or of any neutral disclaimer, the inescapable effect of the crèche will be to remind the average observer of the religious roots of the celebrations he is witnessing and to call to mind the scriptural message that the nativity symbolizes.” Id. at 713.
County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989):
In Allegheny v. ACLU, the Supreme Court considered whether two recurring holiday displays on government property were constitutional. The first display at issue consisted solely of a crèche, which was prominently displayed on the “Grand Staircase” of the Allegheny County Courthouse. The second display, located outside the City-County building, included a menorah, a Christmas tree, and a sign, which read, “During this holiday season, the City of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.”
After analyzing each display separately, the majority of the Court held the display of the crèche unconstitutional while the menorah displayed with the Christmas tree and sign was held constitutional. The Court used the endorsement test laid out by Justice O'Connor in Lynch as the relevant analysis to determine the constitutionality of both displays. The Court stated,
“ Lynch v. Donnelly, confirms, and in no way repudiates, the longstanding constitutional principle that government may not engage in a practice that has the effect of promoting or endorsing religious beliefs. The display of the crèche in the county courthouse has this unconstitutional effect.” Id. at 621.
With regard to the first display, the Court determined, 5-4, that the crèche display was unconstitutional because the crèche stood alone and was the single element of the display. Furthermore, it was located on the main and “most beautiful part” of the government building. The Court stated,
“No viewer could reasonably think that it occupies this location without the support and approval of the government. Thus, by permitting the 'display of the crèche in this particular setting,' Lynch,(O'Connor, J., concurring), the county sends an unmistakable message that is supports and promotes the Christian praise to God that is the creche's religious message.” Id. at 599-600.
The Court also rejected the notion that the accompanying sign notifying observers that the nativity was owned by a Roman Catholic organization sufficiently removed the perception that the government endorsed the religious message conveyed by the nativity scene.
In contrast, the Court held, 6-3, the display of the menorah constitutional. The Court reiterated that the constitutionality of the display must be assessed in the particular setting of the display, which in this case, included the accompanying Christmas tree and sign saluting liberty. The Court found the Christmas tree, which it viewed as a secular symbol, was the predominant feature of the holiday display. The Court also reasoned that the accompanying sign saluting liberty diminished the possibility that a reasonable observer would view the display as government endorsement of either Christianity or Judaism. Viewing the display in this context, the majority of the Court determined that there was no inference of dual endorsement of religion through this display. The Court stated the “city's overall display must be understood as conveying the city's secular recognition of different traditions for celebrating the winter-holiday season.” Id. at 620.
Written by FFRF Staff Attorney, Rebecca S. Markert, 2008