Crèche Test Dummies

Nativity scenes on public lands are illegal, rules the Supreme Court. Except when they’re not.

So it’s the week before Christmas, and you’re driving home from work/school, and suddenly you notice, arrayed in front of your city hall/town square/police station, a Christmas tree/menorah/crèche scene. And it occurs to you that this poses constitutional problems, but you’re not quite certain what they might be. And because you’re a member of a majority religion/minority religion/the ACLU or are pathologically litigious by nature, it occurs to you to: a) be offended; and b) sue someone. Well. What do you do? Do you have a case? What goes into an unconstitutional public holiday display these days anyhow?

The first thing you should know is you are not alone. Local governments and municipalities are being sued over religious displays and holiday policies all over the country this year. From Massachusetts to Florida, the crèches and menorahs are coming down. Or going up again. But we’ll get to that in a minute.

If you’re a potential litigant, you should bone up on the Establishment Clause, the First Amendment prohibition against the government establishing a state religion. Then review the Supreme Court jurisprudence on the subject. Lastly, recall that the display must be in a public area. You have no constitutional rights if your neighbors have erected a manger scene next to their Hibachi or the local chapter of Jews for Jesus have placed a menorah outside their synagogue.

But even after absorbing all the case law, you won’t be sure whether or not you have a case. In a clutch of divisive and confusing cases, the high court has held that nativity scenes are constitutional, except when they are not. Thanks to a slew of recent Supreme Court case law, determining the constitutionality of holiday scenes is an exceptionally “fact-specific” inquiry. Fact-specific is Supreme Court code for why different cases with seemingly identical facts lead to different outcomes. Justice Kennedy, in Allegheny—one of the crèche cases—predicted that this type of niggling fact-specific analysis would result in a “jurisprudence of minutiae” relying on “little more than intuition and a tape measure.” But not even intuition and tape measures are enough to keep cities from being sued, so vague are the high court’s guidelines.

Let’s review: The first big case was a 1984 nativity scene case, Lynch v. Donnelly, involving the city of Pawtucket, R.I. The high court found, in a 5-4 decision, that a city-sponsored crèche in a public park did not violate Establishment Clause. The court’s reasoning was based in part on the fact that the display included, in addition to a Nativity scene, “secular” symbols of the holiday, such as a Christmas tree, a Santa Claus house, and cut-out figures of a clown, a dancing elephant, a robot, and a teddy bear. As you’ll recall, there were no robots in the original story of the birth of the baby Jesus.

The 1989 decision in Allegheny County v. ACLU  went 5-4 the other way on the crèche scene. The court found a Nativity scene on the main staircase of the county courthouse to be unconstitutional. This time, the court emphasized that the privately owned crèche—which was unaccompanied by Santa or the dancing elephants—and which included a banner proclaiming “Gloria in Excelsis Deo” (“Glory to God in the Highest”) was indisputably religious. In the same case, however, a different five-judge majority found that a nearby display, featuring an 18-foot Hanukkah menorah, placed next to a 45-foot Christmas tree, did not violate the Establishment Clause. Evidently, like Kryptonite, the “secular” tree somehow canceled out the religious superpowers of the menorah.

The third case, Capitol Square Review Board v. Pinette, is a 1995 case involving the Ku Klux Klan’s efforts to display a cross in a public park opposite the Ohio statehouse. In Pinette, the court, by a 7-2 vote, held that the cross did not violate the Establishment Clause, although no single rationale for why that was so garnered more than four votes.

What does this mean for you and your attempt to sue the city for installing Santa next to city hall? A few general principles can be distilled from the fallout of the cases above. Weigh these elements before deciding to buy yourself a lawsuit:

  1. Context: Courts after Lynch and Allegheny put a heavy emphasis on the other symbols scattered around the allegedly religious display. That means that a Teddy Ruxpin adjacent to the baby Jesus may well save a nativity scene from violating the Establishment Clause and that, as was the case in Allegheny, a Christmas tree may somehow save a menorah.
  2. “Secular” versus “Religious”: Odd though it may sound, the high court has determined that Santas, elves, reindeer, and long-suffering Mrs. Clauses are secular, as opposed to religious symbols. Crèches and menorahs are religious. Although Justice Brennan tried to point out for the dissenters in Lynch that religious symbolism is in the eye of the beholder, this distinction lives on. Even where Christmas trees would at least intuitively seem to celebrate the birth of, um, Christ. These “secular” symbols are not only constitutional; their proximity also saves religious symbols that would be unconstitutional if standing alone.
  3. Government versus Private: Another thing you want to determine before retaining counsel is whether the display is owned and paid for by the government or by a private entity. Government-sponsored displays are more constitutionally suspect than private displays in public places.
  4. The “Reasonable Observer” Test: The test devised by the Supreme Court in the Establishment Clause cases is simple: Would a reasonable observer of the display in question believe (even mistakenly) that the government was endorsing a particular religion or religion in general? Before you go thinking of yourself as that allegedly “reasonable” observer, know that the court has tended to substitute its own (specifically Justice O’Connor’s) notion of reasonableness for yours in applying this test. There is also a sharp divide on the current court between the justices who assume reasonable observers understand the “history and context” of the public space and are aware if it’s open to all comers, and the justices who feel like reasonable observers may just be visiting Martians.
  5. Signs: You’ll also want to pay particular attention to the signs posted around your local display. The court has frowned on “Gloria in Excelsis” but smiles on “Happy Holidays” or “Salute to Liberty!” And a sign indicating that the display was sponsored by private parties goes a long way to curing the impression that the government has endorsed it. (If the sign says “The Mayor (hearts) Jesus,” I’ll help you file the papers.)

How predictive are the above guidelines? Not very. Several years back, a court of appeals decided that a crèche and menorah display in Jersey City, N.J., was not constitutionally cured by the city’s addition of a plastic Santa, a plastic Frosty, and a red sled. In 1997, a court of appeals found that a Syracuse, N.Y., city-owned crèche display was constitutional, as was a privately owned menorah display, even though the two were displayed in totally different city parks. A recent lawsuit in Madison, Wis., involves the city’s refusal to allow religious-themed ornaments to hang from the “secular” capitol “holiday” tree. Private citizens may contribute only nonreligious ornaments. Religious groups are suing. A small community in Tampa, Fla., just removed their display of a Christmas tree and a menorah, apparently because a member of the board that oversees the community objected to the menorah (but not the Christmas tree) as “pushing” the Jewish religion onto residents. In Seattle, they’re bickering over whether state employees can even say “Merry Christmas,” and a school district near Rochester forbade students from using the word “Christmas.”

One might think that the Supreme Court that can hand down clear, fixed rules—we all know and understand Miranda rights—might be able to pull together a clear rule for public holiday displays. Instead, we have a series of impossible cases, each of which renders the law just a bit more murky. Why? Perhaps because there are some extremely religious justices on the current court who view religion as beyond the reach of civil laws. Perhaps because religion is almost necessarily nonnegotiable, and zero sum (just ask some of our friends in Afghanistan) attempts to nip and tuck at its free expression will, by definition, offend. Perhaps the central tension built into the First Amendment—allowing us to worship freely, but prohibiting the government from doing the same—is coming back to bite our collective constitutional butt. School districts and police departments and mayors’ offices have learned to expect the Christmas lawsuit along with the Sears catalogue every year. Maybe this year Santa could skip the PlayStation and inspire the high court to clarify this area of law once and for all.