It’s O.K. to Say Merry Christmas
As an attorney, I am involved in a group called Alliance Defending Freedom, which was formerly known as the Alliance Defense Fund. This is an alliance that defends religious liberty. http://alliancedefendingfreedom.org/
RE: The Legal Rights of Municipalities in Holiday Seasonal Religious Expression
Christmas is a cherished and special time of year when Coloradans and all Americans come together and celebrate something bigger than ourselves. Surveys show that 96 percent of all Americans celebrate Christmas. Historically, cities and towns across America have celebrated the Christmas season by decorating their buildings and parks with symbols of the season. It is a time of year that is characterized by joy, peace, and unity of spirit.
Nevertheless, in recent years secular groups, including the ACLU and its allies, have sought to intimidate municipal officials with fear, disinformation and threats of lawsuits in an effort, not justified by the laws of our land, to excise religious expression from the public square including at Christmastime. As a result of this misinformation and unwarranted threats of litigation, many municipalities are in fear of decorating their buildings and parks with symbols of the Christmas season. Many municipalities are simply under-informed about the legality of celebrating the Christmas season.
As a Colorado attorney associated with the Alliance Defending Freedom (ADF), I am interested in helping educate our community about legal guidelines already established for religious expression. ADF is a legal alliance that defends the right to hear and speak about religious beliefs. ADF exists to educate the public and the government about important constitutional rights, particularly the First Amendment right of freedom of religious expression. When necessary, ADF will litigate these issues. ADF and its allies have come to the defense of many municipalities across America that have been wrongly accused of violating the First Amendment.
It is our hope that the following discussion will clarify this important area of the law for you.
I. MUNICIPALITIES MAY SPONSOR RELIGIOUS DISPLAYS
Municipalities may sponsor holiday religious displays in one of two ways: (1) they may put up their own public displays or (2) they may allow private displays. Public displays are those found in and around public buildings or parks, and are traditionally erected during the holiday season. Private displays are those that the municipality allows in traditional public fora or designated fora.
A. Religious Holiday Displays by Municipality
Municipalities may display religious symbols such as a crèche or nativity scene without offending the Constitution if the display is accompanied by traditional secular holiday displays, like reindeer and snowmen. To determine the constitutionality of municipal religious displays, courts evaluate whether the religious display passes the Supreme Court’s three-prong Lemon test. Under the Lemon test, courts will inquire “whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion.” In addition to the Lemon test, courts often look to the “endorsement test,” which asks whether a reasonable observer would believe that the municipal display constitutes an endorsement of religion by the government.
Employing the Lemon test, the Supreme Court, in Lynch v. Donnelly, held that the display of a nativity scene is constitutional if it is displayed for legitimate secular purposes, such as to celebrate the holiday and to depict the origins of the holiday. Lynch involved a Christmas display erected by the City of Pawtucket, Rhode Island. The display included a Santa Claus house, reindeer pulling Santa’s sleigh, a Christmas tree, colored lights, and a crèche, among other things. The Court found that these items, when displayed by the city at Christmas time, did not amount to a violation of the Establishment Clause of the First Amendment. While the majority opinion in Lynch centered on the Lemon test, Justice O’Connor’s concurring opinion has served as the standard for municipal seasonal displays. It was her concurrence as the swing vote in the Lynch decision that created what has been known euphemistically as “The Three Reindeer Rule.” The legal name for the test is the “endorsement” test because Justice O’Connor stated that she believed the “central issue” in the Lynch case was whether the city “endorsed Christianity by its display of the crèche.” Answering the question in the negative, Justice O’Connor found the contextual setting of the crèche amongst the other secular objects to be sufficiently secular to pass constitutional muster.
The endorsement test has been cited in many other cases and has gained a wide degree of acceptance as the determining factor for municipal religious displays. Thus, a crucial consideration for municipal holiday displays is the secular context in which the religious symbol is placed. Simply stated, “The Three Reindeer Rule” requires a municipality to place a sufficient number of secular objects in close enough proximity to the crèche to render the overall display sufficiently secular.
Insomuch as the Lemon test and the endorsement test have proven to be burdensome restrictions on governmental authorities who seek to exhibit religious displays, governmental authorities can avoid the requirement that a religious display include a sufficient number of secular figures if private individuals, who are not subject to religious speech restrictions, initiate the religious display.
B. Religious Holiday Displays by Private Citizens
Municipalities may open traditional public fora and designated fora to private religious displays without offending the Constitution. The most common examples of this are when private citizens place a religious display in a public park or when a city opens a specific part of the downtown district to private citizens who want to put up religious holiday displays. The reason for this is that the Supreme Court has held that the Establishment Clause requires the state to be neutral in its relations with religious believers and non-believers; but it does not require the state to oppose religion or religious expression. In fact, the Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” “State power is no more to be used to handicap religions, than it is to favor them.”
The Constitution protects private religious expression. It is a fundamental principle of constitutional law that municipalities may not suppress or exclude the speech of private parties simply because the speech is religious or contains a religious perspective. This principle cannot be denied without eviscerating the essential First Amendment guarantees of free speech and religious freedom. As the Supreme Court has stated:
Our precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression. . . . Indeed, in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince.
The Supreme Court has noted that “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Therefore, it is unconstitutional for municipalities to deny individuals the right to religious speech and expression in public and designated fora by imposing on them a limitation intended for the government.
Municipalities need not fear violating the Constitution by allowing private individuals and groups to erect Christmas displays. The municipalities are not endorsing any message of the private speakers. If any fear lingers, municipalities can require the private individuals and groups to place a disclaimer on their displays.
II. MUNICIPALITIES MAY SPONSOR RELIGIOUS DISPLAYS INSIDE AND AROUND GOVERNMENT BUILDINGS
Municipalities may sponsor religious displays inside and around government buildings so long as the display has a secular purpose. There are countless illustrations of the “Government’s acknowledgment of our religious heritage and governmental sponsorship of graphic manifestations of that heritage.” For example, the Supreme Court pointed out that its chamber “is decorated with a notable and permanent—not seasonal—symbol of religion: Moses with Ten Commandments. Congress has long provided chapels in the Capitol for religious worship and meditation.”
The Supreme Court recently reaffirmed that
[w]hen the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups … .[W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.
In Van Orden v. Perry, the Supreme Court found that a display of the Ten Commandments on the grounds of the Texas state capitol did not violate the Establishment Clause of the First Amendment because the display was part of the political and legal history of the state. However, in a sister case, McCreary County v. A.C.L.U., the Supreme Court found that a county’s display of the Ten Commandments was unconstitutional because the county did not have a secular purpose in erecting the display. The county intended to celebrate the religious significance of the Ten Commandments, which when “viewed in its entirety is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction.”
Van Orden and McCreary added some clarity to the constitutionality of government’s sponsoring religious displays on public property. Courts look to the Supreme Court’s three-prong Lemon test and the endorsement test to determine whether there has been an impermissible establishment of religion. An additional factor that courts may consider is whether the government’s religious display is permanent or temporary.
In the context of religious displays in governmental buildings, the length of time the symbol has been in use or the length of time the display has been exhibited often weighs in favor of the government. In King v. Richmond County, Georgia, the Eleventh Circuit Court of Appeals noted that the clerk’s seal, which included an outline of stone tablets, had been in use for at least 130 years. The court noted that this fact arguably supported the county under the effect prong of the Lemon test. Relying on the King decision, the Third Circuit Court held in another case that the age and history of a Ten Commandments plaque, which was displayed by itself, “provide[d] a context which changes the effect of an otherwise religious plaque.” In reaching its decision, the Third Circuit Court of Appeals looked to the U. S. Supreme Court decision in County of Allegheny v. ACLU, in which Justice O’Connor, in her concurrence, stated:
The “history and ubiquity” of a practice is relevant because it provides part of the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsement of religion.
Although the Lemon test, the endorsement test, and time-based factors provide a measure of guidance for lower courts, the abundance of inconsistent decisions reached by lower courts indicates that these tests have not always provided clear answers to the constitutional questions secular groups are raising in response to governmental exhibition of religious displays inside and around governmental buildings.
Municipalities may erect religious Christmas symbols on buildings and in parks if the symbols are accompanied by secular symbols of the season. Municipalities may also allow private citizens and groups to put up Christmas displays in public and designated fora, without violating the Constitution.
Cities and towns across the nation should be encouraged by the ways in which our laws protect their ability to celebrate Christmas and other religious holidays.
Merry Christmas! It’s O.K. to say it!
 Lemon v. Kurtzman, 43 U.S. 602 (1971).
 Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (citing Lemon, 403 U.S. at 612–613).
 See Adland v. Russ, 307 F.3d 471, 479 (6th Cir. 2002).
 Lynch, 465 U.S. at 681.
 See, e.g., Freethought Soc’y of Greater Phila. v. Chester County, 334 F.3d 247, 262 (3d Cir. 2003).
 Lynch, 465 U.S. at 690.
 Id. at 691.
 See, e.g., Adland, 307 F.3d 471; Elewski v. City of Syracuse, 123 F.3d 51 (2d Cir. 1997); Mather v. Village of Mundelein, 864 F.2d 1291 (2d Cir. 1989).
 See Board of Educ. of the Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990).
 Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995).
 Everson v. Board of Educ., 330 U.S. 1, 18 (1947).
 Lynch, 465 U.S. at 673.
 Everson, 330 U.S. at 18.
 Good News Club v. Milford Cent. Sch. Dist., 533 U.S. 98 (2001); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Widmar v. Vincent, 454 U.S. 263 (1981).
 Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).
 Mergens, 496 U.S. at 249-50.
 Lynch, 465 U.S. at 677.
 Van Orden v. Perry, 125 S.Ct. 2854, 2859 (2005).
 Id. at 2864.
 125 S.Ct. 2722 (2005).
 Id. at 2739.
 331 F.3d 1271, 1286 (11th Cir. 2003).
 Freethought Soc’y of Greater Phila., 334 F.3d at 264.
 Id. (citing County of Allegheny v. A.C.L.U., 492 U.S. 573, 630 (1989)).