Hnn | HNN Articles

Are Nativity Displays Constitutional?

 

By Monica Miller                                                                         

Although the First Amendment forbids the government from establishing religion, once again this holiday season, cities and counties across the country will be displaying nativity scenes to celebrate the birth of Jesus Christ on government property. Nativity scenes (also known as crèches) have no place on government property. Indeed, the Supreme Court has held that stand-alone religious holiday displays violate the Establishment Clause. That much is clear.

Unfortunately, governments can place such displays on their property if there are sufficient “secular holiday symbols” nearby, such as snowmen, Santa Claus, and reindeer.  According to the U.S. Supreme Court, there must be enough of these in the display to detract “from the crèche’s religious message.” The Court justified this rule on an erroneous assumption–that a “reasonable observer” would not perceive a crèche prominently affixed on government property, surrounded only by a few not-exclusively-Christian Christmas decorations, as endorsing religion. Adding “secular” decorations, all of which relate to the holiday surrounding the birth of a religious figure, hardly negates the government’s obvious endorsement of Christianity. 

The Supreme Court first addressed the issue of public holiday displays in 1984 in Lynch v. Donnelly. The Court held that Pawtucket did not violate the Establishment Clause by including a city-owned crèche in a holiday display in a private park. The display also included “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cut-out figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights,” and a large banner that read “SEASONS GREETINGS.” The Court found that the inclusion of a single religious symbol, the crèche, did not “taint” the entire display.

Justice Sandra Day O’Connor concurred but wrote separately to offer what later became the “endorsement of religion” standard: “What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion.” Justice O’Connor famously recognized that endorsement of religion sends “a message to non-adherents 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.”  

Five years later, the Supreme Court adopted the endorsement test in County of Allegheny v. ACLU of Greater Pittsburgh. This was the second and most recent Supreme Court decision involving the constitutionality of holiday displays. In Allegheny, two displays were challenged. The first consisted of a crèche display inside a courthouse, sponsored by a Catholic church. The other involved an elaborate display featuring a 45-foot Christmas tree and an 18-foot menorah, placed outside the City-County Building. The Court held that the crèche was unconstitutional but not the menorah.

The Court found that “unlike in Lynch, nothing in the context of the display detracts from the crèche’s religious message.” Because the crèche was situated on the most prominent staircase in the courthouse, no passerby could view it without receiving “an unmistakable message that it supports and promotes the Christian praise to God that is the crèche’s religious message.” A disclaimer sign identifying the private sponsor did not change this conclusion.

Although Santa Claus figures and other Christmas decorations were present elsewhere in the courthouse, there were none on the staircase. In distinguishing the case from Lynch the Court observed: “The Lynch display comprised a series of figures and objects, each group of which had its own focal point.” In contrast, the crèche in Allegheny sat alone in the “main” and “most beautiful part” of the “building that is the seat of county government.”

The menorah presented a “closer constitutional question,” but the majority ultimately concluded it was permissible. Unlike the crèche in Lynch, which was owned by the city, neither Allegheny County nor Pittsburgh owned the crèche or menorah. The Court found relevant the fact that “a Christmas tree and a sign saluting liberty” surrounded the menorah. The Court believed the tree to be a secular symbol, and the sign proclaiming liberty to “diminish the possibility that the tree and the menorah will be interpreted as a dual endorsement of Christianity and Judaism.”

Many governments today add “secular” Christmas decorations to their crèche displays solely to meet the minimal requirements set forth in these cases rather than to genuinely celebrate the “cultural significance” of a national holiday, as in Lynch.

Others have decided they would rather display the crèche alone, ignoring the clear command of Lynch and Allegheny. To get around these cases, they rely on the “open forum” doctrine derived from free speech jurisprudence. The theory is that in a traditional public forum, where private individuals have fundamental free speech rights, a crèche donated by a private individual is private, rather than government speech. Of course, by creating such a forum, the government must remain viewpoint neutral and cannot deny access to other speakers based on the content of their speech. Hence, a humanist cannot be precluded from putting up a display promoting humanism simply because of its message. 

The Appignani Humanist Legal Center has already received multiple complaints about crèches on government property. If you are offended by a crèche (or menorah or other holiday display) on government property, please let us know. If the display includes other “secular” decorations, take note of what they are and where they are. 

Monica Miller is a legal consultant for the Appignani Humanist Legal Center of the American Humanist Association.

blog comments powered by Disqus

American Humanist Association

Hey, take a breather and complete this puzzle! You work so hard. You really do d...

3 days ago

American Humanist Association

It is unfortunate and far from fair when humanist celebrants are considered unof...

3 days ago

American Humanist Association

Here is a break down of how religious beliefs affect political choices.

3 days ago

American Humanist Association

We are all familiar with this case. It may have been played out a bit in the med...

6 days ago

American Humanist Association

It is likely many of you will prefer this quote over the last. Enjoy!

6 days ago

American Humanist Association

What is your opinion on the United States' level of cooperation with the ICC? T...

6 days ago

American Humanist Association

The Ethical Dilemma: Advice for an Isolated Teenage Atheist Get TheHumanist.co...

6 days ago

American Humanist Association

The AHA is mentioned in this article about Humanist of the Year Barney Frank.

7 days ago

American Humanist Association

Check out the latest Humanist Hour Podcast with Muhammad Syed and Hiba Krisht on...

7 days ago

American Humanist Association

The NY Daily News reports on our recent congressional briefing

7 days ago

American Humanist Association

Carroll County: A Small Maryland Community Gets Big Attention for All the Wrong...

7 days ago

American Humanist Association

Matthew Bulger, the AHA's legislative associate, reports on our first congressio...

8 days ago

American Humanist Association

We're happy to welcome a new chapter, Washington DC, Atheists, Humanists and Agn...

8 days ago

American Humanist Association

Check out some photos from yesterday's congressional briefing on humanist celebr...

8 days ago

American Humanist Association

Our first congressional briefing was a success! The room was completely packed w...

9 days ago

American Humanist Association

Wonder Works Day Camp in Moscow, Idaho has begun! The first day was a huge succe...

9 days ago

American Humanist Association

The briefing on military chaplaincy has begun.

9 days ago

American Humanist Association

Today, the American Humanist Association will be hosting our first Congressional...

9 days ago

American Humanist Association

Thank You! Thank You! Thank You!

9 days ago

American Humanist Association

Here is a video from Harvard's Making Caring Common Project. 5 Ways to Raise M...

10 days ago

American Humanist Association

Why the Way We Live is More Important. Get TheHumanist.com by email once a week...

10 days ago

American Humanist Association

Hey, have a laugh! http://hmn.st/1sFRZ33 Get TheHumanist.com by email once a we...

10 days ago

American Humanist Association

No matter how right or how wrong, religion can not establish morality for the ma...

10 days ago

American Humanist Association

I have come across this many times. While this topic may not be important to all...

10 days ago

American Humanist Association

Jesus Cones! A new way to violate church-state separation, in Gwinnett County, G...

12 days ago

American Humanist Association

Well this is rad! AHA Board Member Herb Silverman is featured in this short (10...

13 days ago

American Humanist Association

It may seem silly, maybe even a blatant mockery, but if you really think about i...

13 days ago