Are religious holiday displays on public property constitutional?

Thursday, February 14, 2008

It depends. Determining the constitutionality of religious holiday displays requires an analysis that is heavily “fact-driven,” meaning the slightest change in facts could completely change whether or not a holiday display is constitutional. Three U.S. Supreme Court cases deal specifically with this question. In Lynch v. Donnelly (1984) the Court held that a city-sponsored crèche in a public park did not violate the establishment clause because the display included other “secular” symbols, such as a teddy bear, dancing elephant, Christmas tree, and Santa Claus house. In Allegheny v. ACLU (1989) the Court found that a Nativity scene in a county courthouse accompanied by a banner that read “Gloria in Excelsis Deo” (“Glory to God in the Highest”), was unconstitutional because it was “indisputably religious,” rather than secular, in nature. In 1995 in Capitol Square Review & Advisory Board v. Pinette the Court held that a private group of individuals (in this case the Ku Klux Klan) could erect a cross in the Ohio statehouse plaza during the holiday season. In reaching its decision, the Court heavily relied on the fact that the KKK had requested permission to display the cross in the same manner as any other private group was required to do, that the public park had often times been open to the public for various religious activities, and that the KKK expressly disclaimed any government endorsement of the cross with written language on the cross.

Despite the Supreme Court's providing these baseline principles in religious holiday display cases, courts around the country have a difficult time in their application. For example, the 1st U.S. Circuit Court of Appeals held that a holiday display in a government building violated the establishment clause because the display lacked sufficient secular content. (Amancio v. Town of Somerset, 28 F. Supp. 2d 677 (D. Mass. 1998).) Included in the display was a Nativity scene, Christmas tree and Santa Claus. Contrast that decision with a ruling out of the 8th Circuit in which it was held that a holiday display that contained candy canes, Christmas tree, snowman, wrapped gifts and a crèche was constitutional. (ACLU v. City of Florissant, 186 F.3d 1095 (8th Cir. 1999).) The 1st Circuit and 8th Circuit clearly are split, illustrated by these two decisions, in how to interpret Lynch and Allegheny.

Some circuits, however, have applied the trio of cases with great consistency. For example, the 3rd Circuit has held that a display depicting a Hanukkah menorah, Christmas trees, Kwanzaa candles, a sled and Frosty the Snowman, among other things, was constitutional. (ACLU v. Schundler, 168 F.3d 92 (1999).) This court adhered strictly to the decisions in Lynch and Donnelly in reaching its decision. The 2nd Circuit also reached a similar decision in a holiday display case that included a crèche, Christmas tree, Hanukkah menorah, and a posted sign that stated that the display was privately sponsored. (Elewski v. City of Syracuse, 123 F. 3d 51 (2nd Cir. 1997).)

How can an individual ensure that a religious holiday display that she erects is constitutional? First of all, any holiday display erected on private property is immune from any constitutional challenges. Secondly, if an individual or group of individuals decide to set up a holiday display on public property (i.e. parks, courthouses, town halls, etc) he should petition the appropriate authorities for authorization to erect such a display. If the site has been home to a variety of religious displays in the past, it is likely permission will be granted.