Monthly Archives: December 2015

2015 Winter Holiday Roundup

Image c/o Church of the Flying Spaghetti Monster

Trust me—I’m as tired of the “war on Christmas” rhetoric as you are. Nevertheless, the annual battle noel does raise some valid legal questions that are worth addressing. Private stores (including a certain coffee chain) are of course free to celebrate the season—or not—however they wish, unless they discriminate against customers or staff. The far more complicated questions of when, how, and to what extent the government can celebrate “the holidays” is still very much unresolved, however, and ripe for controversy.

The Supreme Court hasn’t helped the matter by issuing confusing and seemingly contradictory opinions on what types of holiday decorations violate the Establishment Clause by promoting religion, and which permissibly honor Christmas and Hanukkah as “secular” holidays. (If you’re surprised to hear that celebrations of the birth of Jesus Christ and the rededication of the Jewish Holy Temple are secular holidays, you’re not the only one).

In 1984 the Court decided Lynch v. Donnelley, a challenge to a nativity scene that was included in a city-sponsored Christmas display along with “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and ]a large banner that reads ‘SEASONS GREETINGS.’” According to the Court, the town’s display of the birth of Jesus had a secular rather than religious purpose, and “merely happen[ed] to coincide or harmonize with the tenets of some . . . religions.” It found that when “viewed in the proper context of the Christmas Holiday season,” including the other decorations, there was insufficient evidence that the nativity scene improperly expressed support for a particular religious message. In other words—the inclusion of more Christmas stuff next to a Christmas crèche made the crèche less Christian.

The Court took up Christmas displays again five years later, in County of Allegheny v. ACLU. In this case, the Court found that a nativity scene exhibited outside a county courthouse along with poinsettias and Christmas trees, but without any Santa Clause or other “secular” Christmas symbols, violated the Establishment Clause. The Court found that “unlike in Lynch, nothing in the context of the [courthouse] display detracts from the creche’s religious message.” While certain elements of the Allegheny display did seem even more overtly sectarian than the Lynch crèche (for example, a banner declaring “Gloria in Excelsis Deo,”) both were unquestionably religious.

In contrast, the Court also found in Allegheny that a menorah displayed near a Christmas tree outside a city-county building was acceptable, as the display did not endorse either Christianity or Judaism, but was rather a “secular celebration of Christmas coupled with an acknowledgment of Chanukah as a contemporaneous alternative tradition.” This is another case in which a clearly religious symbol—the menorah—was somehow deemed secular in the context of an additional religious symbol—a Christmas tree.

The tortured attempts of the Court to create secular meanings for religious symbols are entirely unpersuasive. As Justice Brennan explains in his Lynch dissent, cases involving holiday displays do not seem so difficult because the Establishment Clause boundaries are actually unclear in this context, but rather “because the Christmas holiday seems so familiar and agreeable.” In order to create a more coherent doctrine that passes the laugh test, the Court should acknowledge that overtly Christian (or Jewish) symbols are in fact religious, and that not every holiday decoration, no matter how long-standing or treasured, is appropriate for display on government property or with government funding.

The Court’s wavering on the Constitutionality of holiday displays has created understandable confusion on the part of government actors at the federal, state, and local levels. This confusion plays out every December in the form of misguided holiday guides, religious display turf wars,  and, inevitably, lawsuits. I thought I’d take a minute to give you a round-up of this year’s Christmas controversies, including war on Christmas legislation, recent legal actions challenging holiday displays (as well as threats of legal action), and some general hemming and hawing from government agencies that are as confused by the Supreme Court’s precedent as I am:

  • This month, Res 564 was introduced into the House of Representatives by Colorado’s Doug Lamborn. The resolution would “[recognize] the importance of the symbols and traditions of Christmas,” and express the House’s disapproval “of attempts to ban references to Christmas,” and “support for the use of these symbols and traditions by those who celebrate Christmas.” While the resolution would not have the force of law, its singular focus on Christmas seems to butt up again the Supreme Court’s preference for diversity in holiday displays.


  • The ACLU of Indiana won a preliminary injunction earlier this month, preventing a public high school from performing a live nativity scene as part of its annual “Christmas Spectacular” (the Spectacular as a whole, which featured Christmas-themed songs and dancing, was not challenged). The court found that “a reasonable observer would fairly believe that the portrayal of the living nativity scene, when viewed in the particular context, circumstances, and history of the Christmas Spectacular, conveys a message of endorsement of religion, or that a particular religious belief is favored or preferred.” This case is a perfect example of the confusion that results when courts attempt to distinguish “Christ” from “Christmas.” It also seems to conflict with the analysis in Lynch, which would suggest that the “secular” Christmas elements in the Spectacular would temper the religiosity of the nativity scene.


  • Another ACLU of Indiana complaint, which challenged a nativity scene displayed outside a Franklin County courthouse, was dismissed by a federal judge in September. In response to the ACLU’s initial complaint, the County had passed an ordinance which allowed Franklin residents to erect their own non-religious displays outside the courthouse. In light of this change, the court found no proof of a Constitutional violation. While the ACLU later challenged the ordinance itself, this action appears to have settled. While I am generally wary of the more-is-better approach, it’s at least more acceptable where, as here, the displays are submitted by private actors rather than having the state select which religious traditions to include.


  • After the University of Tennessee’s Office for Diversity and Inclusion issued a memo on how to keep holiday parties inclusive, the school’s Chancellor, Jimmy Cheek, has faced condemnation from legislators and calls for his resignation. According to the Christian Science Monitor, “all nine of the state’s Republican representatives in Congress have spoken out against it, deeming the memo an affront to Christians.” While one Congressperson from Tennessee condemned Cheek for trying to “take Christ out of Christmas,” this is in fact exactly what the Supreme Court has encouraged in its Christmas display opinions.


  • In Salem, Virginia, a VA Medical center sent out a letter to its staff explaining that it would not display Christmas trees in public areas this season, as they believed this would be impermissible (in fact, courts have widely deemed Christmas trees to be secular). In response to an outcry from employees and lawmakers—including House Committee on Veterans’ Affairs Chairman Jeff Miller— the center decided that it would display trees along with other more overtly religious symbols, such as a menorah. Because as we’ve learned from Court precedent, more religion can make religious symbols secular.


  • After a two-year battle over a nativity scene at the Florida Capitol in Tallahassee, a Christian group has decided not to sponsor the display this season. The crèche had previously provoked other groups to successfully submit additional displays, including a “Festivus” pole made of Pabst Blue Ribbon cans, “Happy Winter Solstice” banner, a display from the Church of the Flying Spaghetti Monster, and a Satanic Temple diorama. Similarly, Gay pride themed Festivus poles will be displayed on public property this month in Florida, Georgia, Oklahoma, Illinois, Michigan, and Washington State. Pastafarian sculptures will also be featured in several state-sponsored displays. While it’s easy to empathize with Christians who feel that their holiday is being mocked, this is the natural result of opening the door to religious displays on public property.

The annual drama over religious displays may seem frivolous, but in an era when the registration of religious minorities is a serious topic of public debate, it should not be taken entirely lightly. The Court should reconsider its treatment of holiday displays in a way that acknowledges both the important religious (rather than secular) nature of holiday symbols, and the Constitutional harms that arise when government pretends that religion is merely “tradition.”

Know of any stories I missed? Let me know on Facebook.

And have a great December 25th—whether you’ll be celebrating the anniversary of the Eggnog Riot, the first successful ovariotomy, Mikhail Gorbachev’s resignation, the birthdays of Clara Barton, Karl Rove, and Jimmy Buffet… or any other holiday.

Bad Apples: The “Right to Discriminate” in Schools

From Pre-K to college, schools and teachers across the country are demanding—and often receiving—the right to discriminate against LGBT and female students.

In Texas, two daycare workers were apple-256262_1280recently fired after they refused to call a 6-year-old transgender boy by his preferred name, and referred to him as a “girl” despite his and his parents’ wishes. In response, the workers filed wrongful termination complaints with the Equal Employment Opportunity Commission (EEOC) alleging, among other things, that the daycare center had fired them because of their religious beliefs. One of the workers explained that while she has “nothing against anyone else,” she believes that she and her co-worker “should be able to stand up for [their] rights without being terminated for it.” The case is being brought by attorney Andy Taylor, who recently sued Houston’s mayor over issues related to the city’s Equal Rights Ordinance.

The daycare workers seem to believe that laws which criminalize religious discrimination also give them the right to misgender their young enrollees with impunity. This is a fundamental misunderstanding of civil rights law. Under federal law, certain employees are entitled to workplace accommodations related to their religious beliefs. However such accommodations must be reasonable and cannot cause more than a minimal burden on the operations of the employer’s business.

Any accommodation that would permit an employee to ignore a customer and his parents’ wishes regarding his gender identity is not reasonable, regardless of the employee’s religious beliefs. Such actions, which might themselves be considered discriminatory and highly offensive, could severely damage the daycare center’s reputation, disrupt relationships among staff, and cost the center business.

But there’s another kind of religious exemption that is far more troubling than the Houston case, which could get dismissed by the EEOC. Increasingly, religious colleges and universities are taking advantage of an exemption in another area of civil rights law, and requesting government permission to discriminate against LGBT and female students while still receiving federal money.

Title IX, passed in 1972, prohibits sex discrimination by educational institutions that receive federal funding. Since this time, the law has been interpreted and expanded to include a range of discriminatory actions. A 1988 Amendment to Title IX, called the Civil Rights Restoration Act, incorporated an “abortion neutrality” provision which clarified that while schools did not need to provide benefits related to abortion, they also could not discriminate based on a student’s decision to seek an abortion. In 2014, as part of a guidance document on sexual violence, the Department of Education indicated that the requirements of Title IX “extend[] to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” And while marital status discrimination is not covered by the law per se, courts have applied Title IX to situation in which schools single out unmarried mothers or pregnant women for punishment.

There is a significant loophole in Title IX, however, in the form of religious exemptions. The statute does not apply to any “educational institution which is controlled by a religious organization if the application of [the prohibition of sex discrimination] would not be consistent with the religious tenets of such organization.”

Remember that this provision doesn’t just give religious schools the right to discriminate against women and LGBT students—it gives them the right to do so and still receive taxpayer money. That means women and gender non-conforming people are paying to support educational institutions that can actively discriminate against them.

This isn’t a mere theoretical harm. Dozens of colleges and universities receiving millions of taxpayer dollars have already received exemptions from Title IX’s requirements. The Column, an LGBT media organization based in Minnesota, has been compiling and tracking these requests.

The most recent educational institute to attract media attention for its successful exemption request is Carson-Newman University in Tennessee. The University requested the ability to ignore provisions of Title IX which would otherwise prevent them from “engaging in recruiting and admissions under a policy which called for the consideration of an applicant for admission’s sexual orientation, gender identity…marital status, past and present practices regarding marriage, sex outside marriage, pregnancy, and abortion.”

The university claims that despite its request, it won’t discriminate. In interviews, the school’s president seemed to indicate that the exemption request was made solely at the advice of its legal counsel. That assurance is of little comfort, however, considering the University now has the government’s go-ahead to collect federal funds while banning or punishing LGBT students and students who become pregnant outside marriage or have an abortion.

Explicit government approval of, and funding for, institutions that discriminate based on religious beliefs raises serious Establishment Clause concerns. While Supreme Court doctrine has widely upheld government support for religious schools, these cases have made sure to emphasize the essentially secular nature of the government’s actions. For example, the Court has upheld government school-aid programs that distribute non-religious materials on a neutral basis to both public and private schools. The Court has found that such programs are acceptable, as they neither indoctrinate pupils nor define recipients in reference to religion.

In contrast, the Title IX exemption is neither neutral nor secular. It explicitly exempts religious schools, and very few other institutions, from a major civil rights protection. This exemption comes at the expense of LGBT and female students and taxpayers. There are important reasons that antidiscrimination laws apply broadly, and we should be extremely wary of exemptions that limit their reach—especially when taxpayer dollars are at stake.

Do Taxpayer Funded Security Guards in Religious Schools Violate the New York Constitution?


By Elizabeth Platt, Associate Director, Public Rights/Private Conscience Project
school-bus-1527162-640x480Yesterday, the New York City Council voted to use $19.8 million in city funds to pay for security guards for private and parochial schools. This channeling of taxpayer dollars to religious schools seems as though it should raise a conflict with Art. XI, § 3 of the New York Constitution, commonly known as the “Blaine Amendment.”

The Blaine Amendment states:

“Neither the state nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught…”

This prohibition on using public money to support religious schools seems both broad and clear on its face, but has nevertheless been narrowed through case law, most notably the 1967 case Board of Education v. Allen. In Allen, the Court of Appeals upheld a program requiring “all school boards to purchase and to loan textbooks on an equitable basis to all pupils residing in the school district who are attending … any public or nonpublic school.” (emphasis added).

In the face of a Blaine Amendment challenge, the Court of Appeals—New York’s highest court— found that the book loan program had “no intention to assist parochial schools as such,” but was rather “meant to bestow a public benefit upon all school children, regardless of their school affiliations.” Holding that “not every State action which might entail some ultimate benefit to parochial schools is proscribed,” it found the program constitutional. In contrast, a 1970 trial court case, Iona College v. Nyquist, found that a direct financial grant to Iona College, a Catholic institution, did violate the Blaine Amendment.

Decades later, a 2002 report by then-New York Attorney General Eliot Spitzer analyzed various proposed aid programs to non-public schools. The report argued that programs in which the “primary beneficiaries… are the students in both public and non-public schools, not the schools those students attend,” do not violate the Blaine Amendment. It stressed that it was “constitutionally significant for purposes of the Blaine Amendment that the textbook statute upheld in Board of Educ. V. Allen…provided that secular textbooks be loaned to the children enrolled in schools, not to the schools themselves.”

The bill recently passed by the City Council seems to provide a substantial financial benefit directly to parochial schools rather than to students, and may thereby violate the Blaine Amendment. On the other hand, the hiring of security guards is intended to benefit students in all schools, rather than being simply a direct financial grant to a parochial school. If a court were to find no Blaine Amendment violation on that basis, then what type of grant would possibly be considered impermissible, apart from perhaps a direct unrestricted financial grant? Any grant to a not-for-profit religious school will in some way benefits its students. Should a challenge to this bill arise and reach the Court of Appeals, the Court should take the opportunity to salvage the Blaine Amendment and ensure that taxpayer funds are not used to subsidize religious education.