法律英语：23 The Establishment Clause : Part 2

by Michael W. Flynn

 

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed 1 to practice in your jurisdiction 2. Further, I do not intend to create an attorney-client relationship with any listener.   

 

This episode is the second of a two-part series on the Establishment Clause. In the first episode, I discussed some basic principles, and in this second episode, I will discuss how these principles apply to government holiday displays.

 

The First Amendment 3 to the United States Constitution provides in relevant part:

 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .

 

Many Americans love December because it contains Christmas, Hanukah, Kwanza, Solstice, and other religious celebrations. Sometimes, government entities 4 choose to get in the holiday spirit by displaying ornate Christmas trees, menorahs, and wreaths. But, when do such displays become an impermissible “establishment” of religion?

 

While not completely consistent, the Supreme 6 Court has adopted a general test whereby a government holiday display is impermissible where a reasonable passerby 7 would conclude from the display that the government endorses 9 a religion.

 

In a leading case on the issue, Lynch v. Donnelly, the Court considered a Christmas display erected 10 by a downtown merchants’ association in cooperation with the City of Pawtucket, Rhode Island. The display included a Christmas tree, a Santa Claus house, candy-striped poles, colored lights, a banner reading “Seasons Greetings,” and a nativity scene, also known as a crèche. In a 5-4 decision, the Court upheld the display of the nativity against an Establishment Clause challenge. The Court noted 11 that, while the nativity scene was surely religious in nature, its inclusion in a group of holiday symbols did not mean that the government was endorsing 12 or establishing Christianity. The Court also stated that, on occasion, some advancement 13 of religion would result from government action, but not all such advancement is impermissible. Rather, taken in context, the nativity was simply one more permissible 5 symbol of the season, and one that had a permissible secular 14 purpose of attracting people to shop downtown.

 

Several lower court opinions have followed this general notion that a display that includes multiple symbols of the season is permissible. So, a display with a menorah, a nativity, a tree, a cornucopia 15 and a wreath is permissible because it does not endorse 8 any single religion, or even religion generally. Rather, it promotes feelings of inclusiveness, religious pluralism and tolerance 16, and community.

 

However, giving greater prominence 17 to the nativity or other similarly religious symbols has been struck down. For example, the Third Circuit struck down a city display that placed the large nativity scene on the grand staircase of city hall, but relegated 18 an accompanying menorah to a small place next to the nativity. The Second Circuit struck down a large menorah displayed on its own in a public park.

 

Another consideration is whether the government entity 19 pays for, or publicly indicates support for, a holiday display. For example, district courts have struck down holiday displays where the city places a sign next to a Christmas tree that endorses the tree, while failing to place similar signs next to other religious symbols or secular symbols. Further, courts have been more likely to strike down displays that use electricity at the public’s expense than those displays that are privately 20 powered. Those courts noted that a casual observer would more likely believe that the government was endorsing religion where the city is paying for it.

 

This area of law is far from settled. But, most local governments in America today include several symbols of the holiday season, and so remain safe from constitutional challenge. The next time you see a holiday display on city or state property, look for the various symbols of the holiday season and ask yourself whether you think the government is endorsing any one religion over another, or promoting religion over irreligion. After that, please try to enjoy whatever aspect of the display you can, and have a very happy holiday season!

 

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