By: Rudman Winchell Attorney John Hamer
I was sitting at my desk last Friday afternoon, watching City workers hang wreathes on lampposts during a light snow with carolers singing in the background and friendly police officers handing out cookies and hot chocolate to children and puppies, when the phone rang. It was an important municipal official on the other end of the line. I sat up straighter in my chair. The official was looking at a large pile of assorted holiday decorations that had just been donated by a civic organization and was wondering what could the town display in light of the US Constitution. Is it okay to put up an 18-foot Chanukah menorah? A crèche depicting the Christian Nativity scene? A life-size replica of the Grinch? Glad you called, I replied.
Okay, perhaps not everything happened exactly as written above, but if I had started with “the Establishment Clause of the First Amendment provides…”, not too many people would still be reading. It’s okay to admit it- I might not either. However, now that you are invested, it is true that the Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” Hopefully you read it before you were able to stop yourself. While it actually sounds rather straightforward, in practice it is not– as my not-yet-forgotten imaginary municipal official friend was learning.
I told the official, the United States Supreme Court decided Lemon v Kurtzmen, over 40 years ago. The “Lemon Test” is a three-part test used to evaluate whether a government is treading where it ought not with respect to religion. The first question is whether the state action that touches or concerns religion (or in our case holiday decoration) has a secular legislative purpose. The second question is whether the principal or primary effect of the holiday decoration (or other state action) advances or inhibits religion. The final question is whether the decoration fosters “an excessive government entanglement with religion.”
There was silence on the other end of the phone. I sensed that reciting the Lemon Test was not exactly what the official had in mind. I put on my coat and flagged down a passing horse drawn carriage headed toward the town office. A short while later, I too was standing in front of the large pile of assorted holiday decorations that had just been donated by a civic organization.
From the pile of decorations rose an 18-foot tall menorah beside a crèche with a sign reading “Glory to God in the highest.” I pulled out my binder of US Supreme Court decisions that I carry with me everywhere and turned to County of Allegheny v. ACLU, where the plaintiffs alleged that the display of a crèche and an 18-foot tall menorah in government buildings violated the Establishment Clause. The Supreme Court held that displaying a crèche with a sign reading “Glory to God in the highest” would send an unmistakable message religious message and therefore it was unconstitutional for the government to display it. On the other hand, displaying a menorah in the context of a variety of secular holiday displays did not, and therefore it was okay. Then I flipped back a few pages and pulled out US Supreme Court’s decision in Lynch v. Donnelly. There, the Supreme Court held that it was permissible to include a crèche as part of a traditional display that included a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, and carolers. The lesson seemed to be that a permissible display must focus on the cultural aspect of the holidays rather than the religious aspects, and that the context of the display as a whole matters greatly.
Applying this rule of thumb, we worked through the pile of decorations with only an occasional break for cookies and cocoa, and before we knew it, we had assembled a holiday display that passed constitutional muster. As I headed back to my office with the life size replica of the Grinch safely under my arm, it occurred to me that the Establishment Clause is a bit of a contradiction: by prohibiting laws and government actions respecting the establishment of religion, the Establishment Clause actually protects our right to religious (or non-religious) diversity.
For more holiday fun, check out:
First Amendment
https://www.law.cornell.edu/wex/first_amendment
Lemon v Kurtzmen, 403 U.S. 602 (1971)
https://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=403&page=602
County of Allegheny v. ACLU, 492 U.S. 573 (1989)
https://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=492&page=573
Lynch v. Donnelly, 465 U.S. 668 (1984).
https://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=465&page=668