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.”
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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.