Dec 08

Brian Augenthaler

Christmas Tree Law

by Brian Augenthaler

The holiday season is upon us. Local governments that want to participate in the festivities should be aware of the legal implications of public holiday displays. The general rule under United States Supreme Court law is that a governmental practice that touches upon religion—like putting up a religious display—must have a secular purpose if it is to be permissible under the Establishment Clause; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion.  Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).

Although recently abrogated (as noted below), the best analysis for holiday displays can be found in Cnty. of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 573 (1989) abrogated by Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811 (2014). The Allegheny case concerned two recurring holiday displays located on public property in downtown Pittsburgh. The first was a Christian Nativity scene in the Allegheny County Courthouse. A banner above the display proclaimed, “Glory to God for the birth of Jesus Christ.” The second holiday display was an 18-foot Chanukah menorah, which was placed just outside the City-County Building, next to a 45-foot Christmas tree.

The U.S. Supreme Court held, in a deeply divided court, that the nativity scene violated the Establishment Clause, in large part due to the banner above the display. The Court acknowledged that governments can acknowledge Christmas as a cultural phenomenon, but cannot observe the holiday as a “Christian holy day,” by suggesting that people praise God for the birth of Jesus.

On the other hand, the Court held that the menorah did not endorse a particular faith when considered as a part of the overall holiday display, which was understood to convey the city’s secular recognition of different traditions for celebrating the winter-holiday season.

A Christmas tree may be distinguishable from a Christian Nativity scene. Cnty. of Allegheny, 492 U.S. at 616 (“The Christmas tree, unlike the menorah, is not itself a religious symbol. Although Christmas trees once carried religious connotations, today they typify the secular celebration of Christmas.”). Therefore, local governments that choose to display a Christmas tree are probably not endorsing a particular faith, but merely acknowledging a tradition subscribed to by many non-Christians as secular symbol of the winter-holiday season.

The message of the U.S. Supreme Court suggests that holiday displays should not endorse a particular religious viewpoint. Local governments that are considering decorating for the season should strive to be as inclusive as possible in their displays. See, also, Okrand v. City of Los Angeles, 207 Cal. App. 3d 566, 578, 254 Cal. Rptr. 913, 921 (Ct. App. 1989) (holding that a city's display of the historic Katowitz menorah in its rotunda during the holidays, along with a Christmas tree, did not violate the No Preference Clause).

Happy Holidays!

NOTE: The Supreme Court in Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811, 1824 (2014), partially abrogated Cnty. of Allegheny, holding that a prayer opening in town board meetings did not have to be nonsectarian, or not identifiable with any one religion, in order to comply with the Establishment Clause. It is unlikely that this more recent opinion placed any more limitations on holiday displays than did the U.S. Supreme Court in the 1989 Allegheny case.

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