How and when government can celebrate religion during holidays

Monday, December 14, 1998

Despite the risk of irking constituents and spurring lawsuits, government officials throughout the nation can be counted on each December to place or permit placement of holiday displays, usually with majoritarian religious messages in them, on public property.

And sometimes those officials can do so without subverting the separation of church and state. Or at least without being challenged.

Usually, however, religious messages in government-sponsored holiday displays have been found constitutional only after a court or judge has found them watered down enough to appear secular.

Lower federal courts and state courts have had some U.S. Supreme Court decisions to go by when determining if government-sponsored holiday displays, laced with religious messages, amount to violations of the establishment clause of the First Amendment. The high court’s decisions regarding government nods to religion, however, have not proven easy to follow for many lower court judges — or acceptable to some politicians.

Indeed, Arkansas’ governor, in front of 1,000 farmers, said last week that it was not unconstitutional for government-created holiday displays to contain religious themes.

“Let us not forget that the heritage of this holiday is one of recognizing Jesus Christ coming into the world, and it should not be overly offensive for people to recognize that,” Gov. Mike Huckabee said at a yearly gathering of Arkansas farmers. It is “not improper, not even by a little bit, to simply recognize that the origin and the nature of the day itself is related to a spiritual theme.”

Huckabee may be partially right. A government holiday display presenting, say, a solely Christian message, such as a créche, however, would have little chance of withstanding judicial scrutiny, even in a town made up largely of Christians.

It is judges, not governors, however, who are bound by the Constitution to decide when government actions are not permissible. And a federal judge in Massachusetts last month did a much better job of discussing government acknowledgment of religion than Huckabee.

The Massachusetts federal judge, like many other federal and state judges, relied upon two U.S. Supreme Court decisions regarding the constitutionality of government holiday displays. The high court upheld a religiously infused holiday display in the 1984 decision Lynch v. Donnelly and invalidated one in Allegheny v. ACLU five years later.

When presented with a challenge to a holiday display in Somerset, Mass., by a group of non-Christians, U.S. District Judge Richard Stearns ordered city officials to remove a Nativity scene from the display. Stearns relied on the high court’s two decisions on holiday displays.

“While the [U.S. Supreme] Court has attempted to achieve consistency in its approach to Christmas displays, the fact-specific nature of its decisions provides a trial court with a decisional framework based, as Justice [Harry] Blackmun intimates, more on a visual appraisal than a cerebral assessment,” Stearns wrote. “In this case, the question thus is whether Somerset’s display of a créche, a Christmas tree and a Santa Claus looks more like the impermissibly religious display in Allegheny or more like the essentially secular ‘winter wonderland’ in Lynch.”

Stearns found that Somerset’s display contained a religious message that the government was prohibited from issuing because of the Constitution.

“Like the créche in Allegheny, the créche in Somerset is displayed prominently at the seat of local government,” he wrote. “As in Allegheny, the créche is the focal point of the display and there is no signage suggesting anything is being celebrated other than the birth of Jesus. The Christmas tree does not dwarf the créche as the towering tree did the menorah in Allegheny. And unlike Lynch, there is no superabundance of secular symbols to dilute the religious message of the créche, only a rather forlorn Santa Claus stationed on the perimeter of the display.

“In sum, I am constrained to conclude that Somerset’s display violates the Establishment Clause because the centrality of its Nativity scene conveys to a reasonable viewer the constitutionally forbidden message that the Town of Somerset officially supports Christianity,” Stearns concluded.

The establishment clause of the First Amendment bars government officials from taking actions that endorse religion over nonreligion. It requires government to remain separate from religion. Federal and state officials must obey and uphold it. In other words, courts have held the celebrating of the religious aspects of the holidays must be left to private citizens.

Supporters of government-approved religious holiday displays, however, argue that barring government from celebrating majoritarian religions in holiday displays amounts to hostility toward religion.

Judge Stearns did not buy that argument.

“I recognize that this decision may seem a cruel blow to a sixty year tradition of celebrating a holiday that apart from its religious significance heralds a universal message of peace and good will,” Stearns wrote. “But to insist that government respect the separation of church and state is not to discriminate against religion, indeed it promotes a respect for religion by refusing to single out one or two creeds for official favor at the expense of all others.”

In 1984, the U.S. Supreme Court in Lynch allowed government officials in Rhode Island to keep a symbol of Christianity in a holiday display. The justices, however, did so primarily because the symbol was surrounded by larger and more prominent secular symbols.

For more than 40 years, city officials in Pawtucket, R.I., erected a Christmas display in a private park in the city’s shopping district. The display included a Santa Claus house, a Christmas tree, a banner proclaiming “Season Greetings” and a Nativity scene. The city display was challenged in federal court as an unconstitutional government support of Christianity.

Lower federal courts ruled that the créche caused Pawtucket’s holiday display to be constitutionally flawed. When the case reached the Supreme Court, the justices said the display was “essentially like those found in hundreds of towns or cities across the Nation — often on public ground — during the Christmas season.”

The high court then reversed the lower federal courts, finding that the créche – the only religious message in the display – did not subvert the separation of church and state.

Justice Warren Burger, writing for the majority, stated that: “Whatever benefit there is to one faith or religion or to all religions inclusion of the créche in is indirect, remote, and incidental, and is no more an advancement or endorsement of religion than the congressional and executive recognition of the origins of Christmas, or the exhibition of paintings in governmentally supported museums.”

In her concurring opinion, Justice Sandra Day O’Connor noted that the issue for the court was whether Pawtucket had “endorsed Christianity by its display of the créche.” O’Connor found that the Pawtucket display did not convey an endorsement of Christianity, primarily because the créche was “displayed along with purely secular symbols,” such as the Santa Claus house and tree.

In a message to future courts, O’Connor noted in Lynch that government “practices that purport to celebrate or acknowledge events with religious significances must be subjected to careful judicial scrutiny.”

Five years later the high court agreed to hear its second case regarding government-sponsored holiday displays that included sectarian symbols. Again, the placement of the religious symbols and the inclusion of secular symbols in the holiday displays controlled the outcome of the case.

In 1989, the court ruled in Allegheny v. ACLU that a prominently placed créche inside a Pennsylvania government building violated the separation of church and state, while a menorah outside a city-county building did not.

Justice Harry Blackmun noted that the high court had “come to understand the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution’s affairs.”

Turning to the constitutionality of the two Pennsylvania holiday displays, Blackmun said their constitutionality rested upon the message communicated to viewers. “The government’s use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs, and the effect of the government’s use of religious symbols depends upon its context.”

In finding the Pennsylvania créche unconstitutional, Blackmun noted that it stood alone in the government building in a prominent place and included the message “Glory to God in the Highest!”

Unlike in Lynch, Blackmun in Allegheny concluded that “nothing in the context of the display distracts from the créche’s religious message,” and the créche was a single “element of display” in the courthouse. Blackmun said it was a mistake for city officials to erect a holiday display with a single religious symbol.

“In contrast, confining the government’s own celebration of Christmas to the holiday’s secular aspects does not favor the religious beliefs of non-Christians over those of Christians,” Blackmun wrote. “Rather it simply permits the government to acknowledge the holiday without expressing an allegiance to Christian beliefs, an allegiance that would truly favor Christians over non-Christians.”

As government officials throughout the nation contemplate creating holiday displays or permitting displays to be erected in government buildings, they should carefully consider religion’s place. If a recognition of Christmas’ religious aspect is desired, government officials would be wise to water that message down.

Blackmun noted in Allegheny that although “some Christians may wish to see the government proclaim its allegiance to Christianity in a religious celebration of Christmas,” government officials must remember that “the Constitution does not permit the gratification of that desire.”