RELIGIOUS EXPRESSION AT CHRISTMASTIME:
GUIDELINES OF THE CATHOLIC LEAGUE
Christmas 2003
RELIGIOUS
EXPRESSION AT CHRISTMASTIME:
GUIDELINES OF THE CATHOLIC LEAGUE
Christmas 2003
This booklet was prepared by Gerard Bradley of the University of Notre
Dame School of Law and Robert Lockwood of the Catholic League.
It is a guide that we hope will be of use to Catholics, as well as to the
general public, regarding what kinds of religious expression are permissible at
Christmastime.
William A. Donohue
President
Catholic League for Religious and Civil Rights
Guidelines from the Catholic League for Religious and Civil Rights on the proper means for the religious celebration of Christmas in the public arena
Introduction
Each year during the Christmas season, there are reports that the
religious aspects of Christmas are being banned or omitted from the public
arena. These stories can involve anything from threats of legal action over the
placing of traditional nativity crèches on public property, to various
directives from administrators that eliminate the very mention of the religious
aspect of the season from public schools. Such stories can reach ridiculous
proportions, as when a city manager in Eugene, Oregon, banned the display of
decorated trees on public property. In Vancouver, Washington, transit
authorities cited the constitutional separation of church and state in
forbidding employees to wear seasonal ties or jewelry that displayed a religious
symbol.
There is a tendency to either treat these seasonal stories as something
to be laughed at, or to respond to them by assuming that the constitution and
court decisions mandate the elimination of the spiritual aspects of Christmas
from public life. In many cases, activist organizations employ bullying tactics
and threats of lawsuits to attempt to force their private interpretation of the
role of religion in public life, particularly within the public school
environment. Those who are unaware of the actual legal precedents in these
matters and the proper interpretation of the constitution find themselves cowed
into submission.
The purpose of this booklet is to outline not only what is permissible,
but also what is proper in acknowledging and recognizing the religious aspects
of the Christmas season in the public arena. The booklet will provide an
overview of the issues involved, and guidelines for civic groups, private
organizations and individuals, as well as public school administrators,
teachers, and parents.
Overview
Christmas is at its roots a religious celebration. Yet, within American
culture there has been a long accretion of secular customs and traditions
surrounding the feast, so much so that non-Christians and avowed non-believers
celebrate the holiday. At the same time, there has been a growing diversity
within American culture. While 86 percent of Americans identify themselves as
Christian, there is a growing non-Christian cultures.
In discussing how to recognize and allow for appropriate celebration of
the Christmas season in the public arena, there has always been a certain
tension among the religious significance of the celebration, the overwhelming
secular traditions of the season, and respect for those for whom Christmas is
not a part of their culture or religious faith. In the public arena, there needs
to be an understanding of the difference between accommodation of religious
belief, and giving the appearance of the establishment of religious belief.
At the same time, there needs to be a sensible understanding of the right
to freedom of religious expression, and the right of religious groups, civic
organizations and private citizens to use public property in the same fashion
allowed to secular organizations. Finally, it must be clearly understood that
within a public school environment, the religious aspects of the Christmas
season have no less right to expression and recognition than the secular aspects
of the season, or non-Christian faiths and cultural celebrations that are
recognized and explained within the school year.
The issue of recognizing Christmas in the public arena generally arises
in two forms: 1) the display of secular and/or religious seasonal symbols on
public property at the expense of either government or private groups; and 2)
the treatment of the Christmas season within public schools. Yet, as noted above
in Eugene, Oregon, and Vancouver, Washington, the issue can also come up in a
host of different ways where the action that is taken is decidedly hostile to
religion, or even to the secular observance of the Christmas season. These
issues are sometimes raised by administrative fiat resulting from an individual
complaint, or under threat of legal action.
Even well
meaning people attempting to avoid alleged controversy, or under threats, give
in to a view that holds that there is a constitutional requirement that the
government be hostile to religion in the public arena, rather than neutral. Such
was the case when a public school system in Georgia responded to threats of
legal action by ceasing any reference to a “Christmas break” for the
traditional period when schools close around the holidays. Though it defied
logic and common sense—the break has always been associated and timed for the
Christmas season, and will continue as such—this kind of intolerance and
censorship of speech have been common. And the response is often complete
surrender to the complaint.
There is the unfortunate aspect to much of this discussion about Christmas in
the public arena that certain elements within society consider
religion—particularly Christianity—to be a divisive, if not dangerous force,
in society. Their campaigns are built on intolerance, restriction of free speech
and hostility toward religion. They believe that people need protection from
religion and religious expression. While they have a right to such views, they
do not have the right to treat Christian religious expression as in and of
itself a secondary right. Unfortunately, the Supreme Court has allowed private
religious expression to be limited when it could appear to the “reasonable”
observer that the government is “endorsing” that expression—meaning that
the government appears to agree with or affirm a particular view of religion. (County
of Allegheny v. ACLU, 492 U.S. 573 (1989)). Although four members of the
Supreme Court have disagreed with use of this “endorsement test” against
privately sponsored religious free speech, that test—derived from Allegheny—has
not yet been explicitly overruled. (Capitol Square Review & Advisory
Board v. Pinette, 515 U.S. 753 (1995)).
The publicly sponsored display of religious symbols in the public
arena, however, is a different matter. Worried that publicly sponsored religious
displays could reasonably be seen as an endorsement of religion or a particular
religion, the Supreme Court has applied a more exacting standard to publicly
sponsored displays than private ones. The focus of the guidelines given in this
booklet, however, will be on privately sponsored religious expression in
the public arena, and religious expression by students or teachers in public
schools during the Christmas season.
The display of religious Christmas symbols in the public arena certainly
involves a greater understanding and tolerance for different religious
traditions within the United States. It is also an opportunity to see that First
Amendment rights of religious expression and free speech be guaranteed to all on
an equal basis. Openness to religious expression, recognition, and speech in
forums that are traditionally open to secular speech is not a violation of
separation of church and state, or government seal of approval for any
particular religious sect.
State Constitutions
Keep in mind that the guidelines presented in this booklet are based on
the First Amendment to the Constitution of the United States. Most state
constitutions also contain, like the First Amendment, guarantees of
non-establishment and free exercise of religion. The non-establishment clause of
a state constitution may be more specific in defining what constitutes an
“establishment” of religion than the non-establishment clause in the First Amendment.
Theoretically, what might be permissible under the First Amendment might also be
expressly prohibited by a state constitution. At the same time, a state
constitution may not limit or burden the free exercise clause guaranteed by the
First Amendment. Whether the two ever conflict is a state-specific determination
beyond the scope of this pamphlet. While it is highly unlikely that any
state constitution could successfully prohibit a nativity scene that satisfies
the federal First Amendment, the concern is one to be kept in mind if litigation
might arise.
Forums
In relation to expression or free speech, all public property generally
falls under the classification of one or another types of forums: the
traditional or open public forum, the limited or designated use forum, and the
non-public forum. The classification of a forum critically affects how much the
government may limit expression or speech in that forum. As one can see after
reviewing the guidelines, the question of whether a court will uphold any given
nativity scene display is not easily predictable, nor does it depend on any
formulaic rule. Therefore, the guidelines in this booklet are not a sure formula
for winning litigation. Rather, they are principles applied by the courts in
determining such litigation. By considering these principles, one can erect a
nativity display where it is most likely to be upheld and least likely to be
struck down.
Guidelines for Private Groups or Individuals Erecting Nativity Scenes on Public Property
I. In which kind of forum will the nativity scene be erected?
A. Traditional/Open Public Forum
1) A traditional/open public forum provides the best protection for nativity scenes.
2) The traditional/open public forum is characterized by being an open public thoroughfare with an objective use of open access (examples: streets, sidewalks, and parks).
3) The government may place objectively reasonable time, place, and manner regulations on the display of the nativity scene so long as the regulations are content-neutral (example: limiting the amount of electricity a display can use for safety reasons).
4) In order to subject a nativity scene to content-based regulations (example: no nativity scenes are allowed because they are religious), the government must show a compelling interest in having the regulations and must show that the regulations are narrowly tailored to that interest.
a) Governments may have a compelling interest in avoiding a situation where a reasonable observer of the situation would conclude that the government was endorsing religion over non-religion, one religion over another, or several religions over others.
b) If a nativity scene or other religious display stands alone in front of a public building, especially a seat of government (example: a courthouse or city hall), courts have often found that such a display would impermissibly give the reasonable observer the impression that the government was endorsing religion—even though the scene was privately sponsored.
c) Secular symbols, such as Christmas trees, Santa Claus, reindeer, and candy canes, if placed prominently around a nativity scene, can downplay what a reasonable observer would otherwise see as a government endorsement of religion.
d) Merely grouping together religious displays (example: a crèche and a menorah) does not solve the endorsement problem. Without secular symbols present, the reasonable observer might still conclude that the government was endorsing several religions over others (example: Christianity and Judaism).
e)
Nevertheless, governments may not from the beginning subject a nativity
scene or the permission to erect one to more unique rules or a more restrictive
application process than the rules or process applicable to any display in the
open public forum.
B. Limited/Designated Use Forum
1) The limited/designated use forum is one that the government purposefully makes available to a particular class of persons or for a particular class of uses. (example: the government may open a government-owned area to use by military veterans, or for religious and cultural displays).
2) The limited/designated use forum is just like a traditional/open public forum for all those falling within the class to which the forum was opened. Apply the traditional/open public forum guidelines.
3) The government’s ability to limit use of the forum to a particular class is not unlimited, but the courts have not defined what the limits are. The courts have said that once a limited forum has been created, entries of a similar character to those allowed access may not be excluded. (example: if the forum has been opened to religious displays, nativity scenes may not be excluded).
4)
Note that the government simply allowing some speech or expression on
public property that is not an open/traditional public forum does not created a
limited/designated use forum. The government can keep the forum non-public by
allowing selective, permission only access that depends upon non-discretionary
judgments (example: x amount of insurance coverage)
C. Non-Public Forum
1) Non-public fora are generally all those government properties that are not traditional/open public fora and have not been made designated/limited use fora.
2)
The government can refuse to allow a nativity scene display in a
non-public forum when that display would interfere with the objective use to
which the property has been dedicated (example: the government may refuse to
allow a nativity scene near the runway of an Air Force base because it would
distract landing pilots).
Public
Schools
Most people are surprised to discover that the courts have issued few
guidelines at all for public schools concerning seasonal religious displays.
When the Supreme Court has touched on the issue, it has generally found in favor
of religious expression and displays, for example, in favor of allowing the
performance of religious music in public school choral performances during the
Christmas season, and the performance of public school choirs at religious
institutions. While some administrators of public schools—and activist
organizations that attempt to bully public schools—will often cite vague
references to separation of church and state, there is no legal precedent in
this area that bans the display of religious symbols at Christmastime. The
reason for this is that courts will not interfere in the educational process.
Display of religious symbols, when done even-handedly and without devotional
intent, is perfectly legitimate as part of the school’s mission to educate.
Some Christmas symbols—reindeer, Santa Claus, and candy canes, for
example, have been viewed by the courts as secular rather than religious symbols
of Christmas, and their display is legitimate. Other symbols have been viewed as
secular or religious depending on the context. When the Supreme Court has dealt
with Christmas trees it has generally viewed them as a secular symbol. Even so,
in the specific context of public schools, a lower court has treated a Christmas
tree as a religious symbol when it was placed next to religious items from
non-Christian faiths. That court seemed to feel that the very name of the
Christmas tree evoked the Christian meaning of Christmas when the Christmas tree
was placed next to a menorah and Kwanzaa symbols. Menorahs are viewed as mainly
religious, but have been considered secular when surrounded by largely secular
items. It seems unclear in the courts whether Kwanzaa symbols are religious or
secular in nature. Whether the display of these secular-religious symbols is
legitimate depends, like the display of nativity scenes, largely on rules of
context.
Unfortunately, too many public school authorities have become convinced
that any recognition of Christmas violates the separation of church and
state, to the point where the use of the word “Christmas” is effectively
banned, traditional Christmas carols silenced, and both religious and secular
Christmas symbols prohibited. In many areas of the country, there is the
imposition within public schools of an essentially pagan “winter solstice”
and “winter holiday” celebration while banning all reference to the
traditional Christmas celebration. While the display of religious symbols in
public schools obviously cannot involve school-sponsored religious ceremonies,
the courts have never banned a basic recognition of Christmas—with songs and
seasonal activities and displays—within public schools. There is no basis for
such a ban in law, and it could quite possibly be interpreted as actively
hostile to religious freedom of expression, which hostility is illegal.
Following are guidelines and recommendations for the proper recognition
of the religious aspects of the Christmas season within public schools:
Christmas
in Public Schools
- Most courts view Santa Claus, reindeer, and candy canes as secular symbols
- Menorahs can be considered either a secular or religious symbol, depending upon the context in which they are placed. For example, a menorah placed next to a crèche and Kwanzaa symbols would likely be considered a religious symbol. A menorah placed next to a Santa and candy canes, however, would probably be considered a secular symbol.
- Christmas trees are a predominately secular symbol, but might be considered religious in certain contexts. For example, one court found that a Christmas tree placed next to a menorah and Kwanzaa symbols acted as a Christian symbol. Therefore, the court held, the school display did not discriminate against Christianity and the school could not be compelled to display a crèche.
In many cases, bans against the
mention of Christmas or the use of Christian Christmas symbols within public
schools are explained as a means to respect “diversity.” Unfortunately, this
term is too often used as a club wielded intolerantly. It is used not to respect
diversity, but to restrict free speech and religious expression.
“Diversity” means recognizing the diverse cultures and faith traditions within America. It does not mean banning recognition of a part of that culture and faith tradition within public schools. Most of all, “diversity” does not mean hostility toward Christian religious expression and recognition. It means a balanced, fair, and even-handed treatment that does not exclude the religious significance and meaning of the Christmas celebration.
