Can a Courthouse Display a Nativity Scene?

Nativity scene outdoor decoration

It’s an almost picture-perfect scene. Relatives young and old gather around a candlelit dining room table. The nice plates and silverware are brought from storage for the occasion. The heads of the household carve their turkeys. People toast to everyone’s continued success, health and happiness, followed by wishes of “Happy holidays!”

But then someone (there’s always someone) interjects a joyous “Merry Christmas!” This, of course, triggers the beginning of the end: the typical sitcom-style downward spiral of arguing among family members, complete with flung mashed potatoes and hurt feelings, over the propriety and political correctness of such a phrase. Invariably, someone manages to raise “The Constitution!”

While you may typically hear about conflicts over the use of the phrase “Merry Christmas” occurring as dinner-table politics or local community activism, the resolution to the conflict is actually embedded in the foundation of the establishment of our country.

The answer is in the First Amendment of the Constitution, which states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The first part is known as the Establishment Clause and it prevents the federal and state governments from establishing an official religion or endorsing and promoting one religion over others. It also prohibits the government from endorsing the practice of religion over being non-religious and vice versa. Such favoritism for one particular religion, or no religion at all, over others would inhibit citizens’ freedom of religious speech and exercise.

To analyze whether state conduct violates the Establishment Clause, courts apply what is known as the Lemon test, which is derived from Lemon v. Kurtzman. In applying the Lemon test, courts analyze whether a challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion. If government action violates any of these prongs of the Lemon test, the action is unconstitutional under the Establishment Clause.

A famous landmark Supreme Court case, titled Lynch v. Donnelly, specifically analyzed the Lemon test in the context of the Christmas season. The court considered the issue of whether the inclusion of a crèche (or a nativity scene) in a town’s annual holiday display — among a Santa Claus, a banner reading “Season’s Greetings,” and a Christmas tree — violated the Establishment Clause. In that instance, even though the nativity scene had religious significance specifically tied to Christianity, the city did not violate the Establishment Clause because it was not specifically advocating for the religion. It also had legitimate secular purposes and it did not create any danger of establishing a state church. Therefore, because this city’s display did not favor one religion over another, the crèche did not violate the Establishment Clause of the First Amendment.

Despite Lemon Test cases, “Christmas controversies” still occur today. In November of this year, an Arkansas federal judge ruled that a county violated the First Amendment for displaying only a nativity scene on courthouse grounds. By doing so, this suggests the county government established Christianity as its preferred religion.

But most laypeople (crazy aunts and uncles included) confuse state action with private conduct and how the Establishment Clause concerns only the former. In fact, adjacent to the Establishment Clause in the First Amendment is the Free Exercise Clause — “Congress shall make no law… prohibiting the free exercise thereof” — which preserves the right of citizens to choose to accept and engage in any religious belief. On private property, the Free Exercise Clause actually protects a person’s freedom of speech, which means you can decorate for the holidays however you choose and affiliate with whatever religion (or non-religion) you choose.

In summary, it is important to distinguish when the law applies to government action or private actions of citizens when concerning religion. The First Amendment limits our government’s entanglement with religion to preserve the rights of multiple faiths and non-faith coinciding in the country, while it simultaneously protects the rights of citizens to engage in the faith of their choosing. Hopefully, this knowledge puts to ease the mind of that troublesome relative — and leaves your holiday free of political food fights.

One thought on “Can a Courthouse Display a Nativity Scene?

  1. markpattersonlaw

    Whenever this issue comes up I tend to think there are those among us who believe the Constitution is a more valid comprehensive set of values that should be embraced, rather than any particular faith which by its nature is meant to be a code of conduct for how life ought to be lived.

    I have experienced people who believe this clause means that faith and its expression need to be harnessed to the chapel alone, but not witnessed anywhere but inside that building less we somehow offend someone from another ethic, in other words breach their perceived constitutional right to be free from religion.

    Post-Modern man is not part of a society with any shared values. Instead he is suspicious of any previous world view which does not allow him to discover new dimensions of individual liberty which he alone defines.

    The result is a breathless chaos, with local governments usually rushing to catch up to whatever that new dimension is as defined by the individual, who then becomes the plaintiff in these cases.

    Or he throws his Christmas dinner at his crazy uncle and aunt who tell him he is weakening the country. Perhaps it would be better if they asked him why he showed up for this feast at all?

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