Is the Christmas tree constitutional?

With the holidays upon, I’m taking today’s post to review the law on the display of Christmas or other holiday decorations by the government.  In Boise, we have an enormous Christmas tree sitting in front of the capitol building, for example.  Does that violate the Establishment Clause of the United States Constitution?  What if, instead of a Christmas tree, the government wanted to display a menorah, a giant statute of Buddha, or a statute of Lord Shiva (a major Hindu deity)?

The Establishment Clause is a portion of the First Amendment to the Constitution, which states, “Congress shall make no law respecting an establishment of religion. . . .”  The Fourteenth Amendment to the Constitution, which includes the Due Process Clause (“nor shall any State deprive any person of life, liberty, or property without due process of law”), extends the Establishment Clause to the States and local governments.  Over the years, the Establishment Clause has been said to prohibit “three main evils”: sponsorship of a particular religion, financial support for a religion, and active involvement in religious activity.

The issue of government displays with religious themes has been addressed on a number of occasions.  In 1980 in Stone v. Graham, the Court held that the display of the Ten Commandments on the walls of all public school classroom in Kentucky violated the Establishment Clause.  The Ten Commandments posters bore small print stating “[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.”  Nevertheless, the Court held that the postings were plainly religious in nature and served no legitimate secular purpose.

In 1984 in Lynch v. Donnelly, the Court considered whether the City of Pawtucket, Rhode Island, could include a nativity scene as part of its annual Christmas display in a park located in the downtown shopping area.

The Pawtucket display comprises many of the figures and decorations traditionally associated with Christmas, including, among other things, 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, a large banner that reads “SEASONS GREETINGS,” and the creche at issue here.

The Court was closely divided, with the five Justices in the majority holding that the display was constitutional, despite the inclusion of the creche, because the display when taken as a whole expressed a celebration of the holiday season, rather than a “purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious” view. The Court noted that the Constitution requires affirmative “accommodation” of all religions, rather than merely tolerance of religious diversity.

The four Justice dissent wrote that the display had the effect of providing a benefit to those who believe in the importance of the nativity. “The effect on minority religious groups, as well as on those who may reject religion, is to convey the message that their views are not similarly worthy of public recognition nor entitled to public support.  It was precisely this sort of chauvinism that the Establishment Clause was intended forever to prohibit.”

The next case on the subject was the 1989 case of County of Allegheny v. American Civil Liberties Union, which involved two holiday displays located on government property in Pittsburgh.  The opinion of the Court is convoluted to say the least.  Many of the Justices saw fit to chime in, with the result being that one of the displays was approved and one was found to be unconstitutional, but the law of the Establishment Clause was left a jumbled mess.

The display that was found to be constitutional was located at the City-County building, and included an 18-foot tall menorah, a 45-foot decorated Christmas tree, and a sign bearing the mayor’s name and text indicating the city’s “salute to liberty.”  The Court held that the government may “acknowledge Christmas as a cultural phenomenon” and the display of the secular Christmas tree did so.  In other words, the Christmas tree is a secular symbol of the cultural phenomenon of the Christmas season, rather than a religious symbol of the Christian celebration of the birth of Jesus.

Although the menorah is a religious symbol, the Court reasoned that it is also “the primary visual symbol for a holiday that, like Christmas, has both religious and secular dimensions.”  Interestingly, the Court observed, “Whatever the reason, Chanukah is observed by American Jews to an extent greater than its religious importance would indicate: in the hierarchy of Jewish holidays, Chanukah ranks fairly low in religious significance.  This socially heightened status of Chanukah reflects its cultural or secular dimension.”  Particularly when combined with the “salute to liberty” sign, the Court found that the display does not have the effect of endorsing both the Christian and Jewish faiths, but instead “recognizes that both Christmas and Chanukah are part of the same winter season, which has attained a secular status in our society.”

The display that was found to be unconstitutional was a creche depicting the classic Christian nativity scene, displayed on the “Grand Staircase” of the county courthouse.  The creche was displayed with a sign that indicated it had been donated by a Catholic group.  Located at the top of the manger was an angel holding a banner, which stated “Gloria in Excelsis Deo,” meaning “glory to God in the highest.”  The Court held that this display did violate the Establishment Clause, in no small part because of the angel’s banner. The Court wrote that, although the creche did have a few secular decorations nearby, the overall effect was to sanction Christianity.

The County of Allegheny case was the Court’s most recent pronouncement on this subject.  After this case, a few things are clear: the display of a Christmas tree is okay (although it should probably be called a “winter holidays tree”), while the display of  a menorah, a creche, or a giant statue of Buddha or Lord Shiva all standing alone are not okay.  The murky water comes when a government combines one or more religious symbols with one or more secular ones.  So a single display combining a creche, menorah, and statues of Buddha and Lord Shiva would probably be okay to celebrate religious diversity.  But the question still remains: how many plastic Santas, reindeer, and “Seasons Greetings” signs does it take to convert a creche from a sacred image to a secular one?

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