Religion

Christmas and the FIRST AMENDMENT have had a rocky relationship. A decades-long battle over the place of worship and tradition in public life has erupted nearly every year when local governments sponsor holiday displays on public property. Lawsuits against towns and cities often, but not always, end with the courts ordering the removal of religious symbols whose government sponsorship violates the First Amendment. Since the 1980s, however, the outcome of such cases has become less predictable as deep divisions on the Supreme Court have resulted in new precedents that take a more nuanced view of the law. In such cases, context determines everything. Placing a nativity scene with the infant Jesus outside a town hall may be unconstitutional, for example, but the display may be acceptable if Santa Claus stands nearby.

On the question of religious displays, the First Amendment has two broad answers depending on the sponsor. Any private citizen can put up a nativity scene on private property at Christmas time: citizens and churches commonly exercise their First Amendment right to FREEDOM OF SPEECH to do so. But when a government sets up a similar display on public property, a different aspect of the amendment comes into play. Governments do not enjoy freedom of speech, but, instead, are controlled by the second half of the First Amendment—the Establishment Clause, which forbids any official establishment of religion. All lawsuits demanding that a crèche, cross, menorah, or other religious symbol be removed from public property allege that the government that put it there has violated the Establishment Clause.

The Supreme Court has reviewed challenges to government sponsored displays of religious symbols under the Lemon test. Based on criteria from several earlier decisions and named after the case Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1973), the test recognizes that government must accommodate religion but forbids it to support religion. To survive constitutional review, a display must meet all three requirements or "prongs" of the test: it must have a secular (nonreligious) purpose, it must have the primary effect of neither advancing nor inhibiting religion, and it must avoid excessive entanglement between government and religion. Failing any of the three parts of the test constitutes a violation of the Establishment Clause.

Starting in the 1980s, the test began to divide the Supreme Court. Conservative justices objected because it blocked what they saw as a valid acknowledgment of the role of religion in public life; opposing them were justices who believed in maintaining a firm line between government and religion. In significant cases concerning holiday displays, the Court continued to use the Lemon test but with new emphasis on the question of whether the display has the effect of advancing or endorsing a particular religion.

This shift in emphasis first emerged in 1984 in a case involving a Christmas display owned and erected by the City of Pawtucket, Rhode Island, in a private park. The display included both a life-sized nativity scene with the infant Jesus, Mary, and Joseph and secular symbols such as Santa's house, a Christmas tree, striped poles, animals, and lights. Pawtucket residents successfully sued for removal of the nativity scene in federal district court, where it was found to have failed all three prongs of the Lemon test (Donnelly v. Lynch, 525 F. Supp. 1150 [D.R.I. 1981]). The decision was upheld on appeal, but, surprisingly, in Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355, 79 L. Ed. 2d 604 (1984), the Supreme Court narrowly reversed in a 5–4 vote and found the entire display constitutional.

The majority in Lynch stressed historical context, emphasizing that the crèche belonged to a tradition "acknowledged in the Western World for 20 centuries, and in this country by the people, by the EXECUTIVE BRANCH, by the Congress, and the courts for two centuries." The display, ruled the Court, passed each prong of the Lemon test. First, the city had a secular purpose in celebrating a national holiday by using religious symbols that "depicted the historical origins" of the holiday. Second, the display did not primarily benefit religion. Third, no excessive entanglement between government and religion existed. Perhaps most significantly, the Court saw the crèche as a "passive symbol": although it derived from religion, over time it had come to represent a secular message of celebration.

Lynch laid bare the deep divisions on the Court. By emphasizing context, the majority appeared to suggest that the ruling was limited to circumstances similar to those in the case at hand: religious symbols could be acceptable in a holiday display if used with secular symbols. The majority did not enunciate any broad new protections for governments eager to sponsor crèches. Nonetheless, the opinion did not satisfy the dissenters, who sharply criticized the majority for failing to vigorously apply the Lemon test. They noted that the city could easily have celebrated the holiday without using religious symbols, and they saw the crèche as nothing less than government endorsement of religion.

The emphasis on context became even more pronounced in a 1989 case, County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 109 S. Ct. 3086, 106 L. Ed. 2d 472. In Allegheny, a Pennsylvania county appealed a lower court ruling that had banned its two separate holiday displays: a crèche situated next to poinsettia plants inside the county courthouse, and an eighteen-foot menorah (a commemorative candelabrum in the Jewish faith) standing next to a Christmas tree and a sign outside a city-county office building. Each religious symbol was owned by a religious group—the crèche by the Catholic Holy Name Society and the menorah by Chabad, a Jewish organization. Viewing the displays in context, the Court permitted one but not the other, and its reasoning turned on subtle distinctions.

The Court deemed the crèche an unconstitutional endorsement of religion for two reasons. First, the presence of a few flowers around the crèche did not mediate its religious symbolism in the way that the secular symbols had done for the crèche in Lynch. Second, the prominent location doomed the display. By choosing the courthouse, a vital center of government, the Court said the county has sent "an unmistakable message" that it endorsed Christianity.

But the menorah passed constitutional review. Like the crèche in Lynch, its religious significance was transformed by the presence of secular symbols: the forty-five-foot Christmas tree and a sign from the city's mayor that read, "During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are keepers of the flame of liberty and our legacy of liberty." Even so, members of the majority disagreed on precisely what message was sent by the display. Justice HARRY A. BLACKMUN read it as a secular message of holiday celebration. In a more complicated view, Justice SANDRA DAY O'CONNOR said it "acknowledg[ed] the cultural diversity of our country and convey[ed] tolerance of different choice in matters of religious belief or non-belief by recognizing that the winter holiday season is celebrated in diverse ways by our citizens." Whatever the exact message, the majority agreed that it did not endorse religion.

Since the 1980s the thrust of Supreme Court doctrine has been to allow publicly sponsored holiday displays to include religious symbols. This expansive view of the First Amendment grew out of the Court's acknowledgment that local governments can accommodate civic tradition. Religious symbols on their own are unconstitutional. A display including such symbols may pass review, however, if it features secular symbols as well. Context is the determinant: to avoid violating the Establishment Clause, a crèche or menorah may need a boost from Santa Claus.